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HomeMy WebLinkAbout18 - Approve the Application for a Reconfigured Residential Dock at 939 Via Lido SoudTO: FROM CITY OF NEWPORT BEACH City Council Staff Report June 25, 2019 Agenda Item No. 18 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Dave Webb, Public Works Director - 949-644-3330 dawebb@newportbeachca.gov PREPARED BY: Chris Miller, Public Works Administrative Manager, cmiller@newportbeachca.gov PHONE: 949-644-3043 TITLE: Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud ABSTRACT: At the June 11, 2019 meeting, the City Council approved a motion to reconsider its May 28, 2019 approval of a residential dock at 939 Via Lido Soud ("Property") and directed staff to bring the item back as a new public hearing on June 25, 2019. RECOMMENDATION: a) Conduct a public hearing; b) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, Code of Regulations, Title 14, Chapter 3; and c) Adopt Resolution No. 2019-48, A Resolution of the City Council of the City of Newport Beach, California, Approving the Residential Dock Reconstruction Project (File No. 2585-2018) at the Property Located at 939 Via Lido Soud. In the Alternative d) Find that it is not a project pursuant to Section 15270 of CEQA in that any project which a public agency rejects or disapproves is not subject to CEQA review, and e) Adopt Resolution No. 2019-48, A Resolution of the City Council of the City of Newport Beach, California, Denying the Residential Dock Reconstruction Project (File No. 2585-2018) at the Property Located at 939 Via Lido Soud. FUNDING REQUIREMENTS: Beyond the related staff time needed to administer and process this item, there is no anticipated fiscal impact related to this item. 18-1 Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 2 DISCUSSION: Pier and Float Limits Channelward — Council Policy H-1 Newport Beach Municipal Code ("NBMC") Section 17.35.030(A) provides that piers and floats may not extend beyond the pierhead line unless approved by Council Policy. In 2018, City Council Policy H-1 was amended so that piers or floats may not extend beyond the pierhead line unless a determination is made that the extension will not negatively affect (1) navigation, (2) adjacent property owners, and (3) existing harbor uses. Vessel Limits Channelward NBMC Section 17.25.020(C)(2) states that boats may not extend bayward beyond the end of the slip by more than the vessel's beam (width). With the exception of a small area along South Bay Front on Balboa Island, this rule applies harbor -wide, and is factored into the decision making process when considering dock construction projects. Existing Permit and Residential Dock Configuration The applicant at 939 Via Lido Soud currently has a residential dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated short-term anchorage area. The float is currently configured as a U -shape and is angled to the north. According to the applicant's current permit on file, the existing float is permitted to extend to the pierhead line, but not beyond. However, the float was built approximately 7-8 feet beyond the pierhead line as shown on the aerial photos in Attachment A. (Note: Aerial photos and GIS measurements represent existing conditions to the best of their ability, but should not be relied upon for exact measurements.) 2018 Application for Residential Dock Reconfiguration In October 2018, the applicant submitted a proposal to remove the existing pier -approach, gangway and U -shape float, and replace it with a new gangway lobe, gangway and reconfigured U -shape float which would extend 16 feet beyond the pierhead line ("Project"). (Attachment B) Staff denied the request based on City Council Policy H-1 which does not allow floats to extend beyond the pierhead line unless approved by the Harbor Commission. Harbor Commission Appeal (February 13, 2019) The applicant appealed the Public Works Director's denial to the Harbor Commission, and a public hearing was held on February 13, 2019. The Harbor Commission upheld the Public Works Director's denial (6-1) because the Harbor Commission was not able to make findings to approve the proposal. 18-2 Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 3 City Council Appeal (May 28, 2019) The applicant appealed the Harbor Commission's denial to the City Council within the required timeframe on the basis that the Project conforms to the applicable provisions of NBMC Title 17 and Council Policy H-1. On May 28, 2019, the appeal was heard by the City Council which, pursuant to NBMC Section 17.65.040(F), is authorized to affirm, modify or reverse the Harbor Commission's decision. At the May 28, 2019 hearing, the primary issues considered by the City Council at the hearing was whether the Project was allowed under NBMC Section 17.35.030(A) (floats may not extend beyond the pierhead line unless approved by Section 17.50.040(B)(2) (applications shall be denied if the project is likely to create navigational congestion or otherwise interfere with the rights of other harbor permittees), and Council Policy H-1 (floats not permitted beyond the pierhead line unless the extension does not negatively affect navigation, adjacent property owners, and existing harbor uses). After hearing evidence both oral and written testimony from the applicant, neighbors and other members of the public, the City Council approved the Project with a special condition that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width). City Council Meeting (June 11, 2019) At the June 11, 2019 meeting, the Mayor made a motion to reconsider the City Council's May 28, 2019 approval of the Project. Council Policy A-1 authorizes a motion to reconsider the vote on any action taken by the City Council at either the same meeting or the following meeting by one of the Council Members who voted with the prevailing side. The vote passed and the Council directed this item be placed on the June 25, 2019 agenda. Additional Information Regarding Existing Permit and the Residential Dock Configuration As indicated above, the applicant at 939 Via Lido Soud currently has a residential dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated short- term anchorage area. The float is currently configured as a U -shape and is angled to the north. According to the applicant's current permit on file, the existing float is permitted to extend to the pierhead line, but not beyond. However, the float was built approximately 7-8 feet beyond the pierhead line as shown on the aerial photos in Attachment A. Findings in Support of Approval (Attachment C — Resolution Approving the Project) The City Council approved the Project on May 28, 2019 with a special condition that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width). The City Council therefore directed staff to return to the June 11, 2019 meeting with a resolution memorializing the action. In support of the approval, the City Council made the following findings: 18-3 Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 4 1. Section 17.50.040(A) and (13)(1). The Project conforms to the provisions of the NBMC, design criteria, applicable standards and policies in conjunction with plan reviews by the Public Works Department. Facts in Support of Findings: The Project conforms to the provisions of the NBMC and applicable policies as delineated in subsections (B), (C), (D) and (E), below. Additionally, the Project conforms to the "City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities." Although the two piles at the end of the finger may extend beyond the pierhead line for structural stability, the extension may be authorized by the Building Official if there are practical difficulties in carrying out the provisions of the code and a special individual reason exists for making the strict letter of this code impractical. In this case, the piles at the end of the finger floats are a necessary structural requirement to support the finger length and the correspondingly large vessel. The Building Official has reviewed the plans and found that the modification complies with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. (California Building Code Section 104.10.) 2. Section 17.35.030(A): Piers and floats may not extend beyond the pierhead line unless approved by Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Findings: The Project will not negatively impact (1) navigation, (2) adjacent property owners and (3) existing harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field near the convergence of two navigable channels. With respect to (1), the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. The Applicant can currently berth a vessel with an overall length of 80 to 85 feet in the existing configuration. With respect to (2), the Project will not interfere with adjacent property owners as evidenced by correspondence of support for the Project from adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3), the Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Additionally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. 3. City Council Policy H-1. Piers and floats may not extend beyond the pierhead line subject to City Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. WWI Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 5 Facts in Support of Findings: The Project will not negatively impact (1) navigation, (2) adjacent property owners and (3) existing harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field near the convergence of two navigable channels. With respect to (1), the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. The Applicant can currently berth a vessel with an overall length of 80 to 85 feet in the existing configuration. With respect to (2), the Project will not interfere with adjacent property owners as evidenced by correspondence of support for the Project from adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3), the Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Additionally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. 4. Section 17.50.040(B)(2). The Project is not likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. Facts in Support of Finding. As indicated above, the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. Additionally, correspondence in support of the Project was submitted from the adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. The Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Finally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively impact sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. 5. Section 17.50.040(B)(3). The Project conforms to the policies and regulations of the certified Local Coastal Program. Facts in Support of Finding. The Project will not obstruct public access and will have minimal impacts to public coastal views and coastal resources. As indicated above, the Project will not obstruct public access because the navigable channel between the Property and the anchorage is 256 feet wide and, therefore, is adequate for navigation. Additionally, there are no impacts to public coastal views because there are no adjacent public view corridors. 18-5 Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 6 The Project is designed and sited to be harmonious with the natural appearance of the surrounding area. The Project is a replacement of the existing dock situated between private residential docks on either side. The Project will not be out of character with the surrounding area, and is substantially the same size, purpose and capacity as the dock it replaces. Findings in Support of Denial (Attachment D — Resolution Denying the Project) The City Council may, if desired, deny the project based on the following findings: 1. Section 17.50.040(A) and (13)(1). The Project does not conform to the provisions of the NBMC, design criteria, applicable standards and policies in conjunction with plan reviews by the Public Works Department. Facts in Support of Findings: As proposed, the Project does not comply with Sections 17.30.030(A), 17.50.040(B)(2), and 17.50.040(B)(3), Title 21 and Council Policy H-1 as provided in greater detail in subsections (B), (C), D) and (E), below. Additionally, the Project does not conform to Figure No. 10A of the "City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities" in that the two piles at the end of the finger extend beyond the pierhead line. 2. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line unless approved by Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Findings: As proposed, the Project does not comply with Section 17.35.030(A) in that the pier would extend 16 feet beyond the pierhead line. 3. City Council Policy H-1. As an exception to Section 17.35.030(A), piers and floats may extend beyond the pierhead line pursuant to Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Findings: The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and the Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation and existing harbor uses. :. Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 7 4. Section 17.50.040(B)(2). The Project is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and the Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation and existing harbor uses. 5. Section 17.50.040(B)(3). The Project does not conform to the policies and regulations of the certified Local Coastal Program. Facts in Support of Finding. The Project will obstruct public access. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. The City Council may consider a resolution to either approve or deny the Project. For background and a complete history, both the May 28, 2019 Council staff report (Attachment E) and June 11, 2019 Council staff report (Attachment F) are include herein. 18-7 Reconsideration of the City Council's Decision on May 28, 2019 to Approve the Application for a Reconfigured Residential Dock at 939 Via Lido Soud June 25, 2019 Page 8 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. CEQA Guidelines Section 15301 (Class 1) applies to 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." Section 15302 (Class 2) applies to the "replacement or reconstruction of existing structures and facilities where the new structures will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced[.]" The replacement residential dock system is in the same location and is substantially the same size, purpose and capacity as the dock system it replaces. The overwater coverage of the new dock system increased from 1,287 square feet to 1,765 square feet. The single, U - shape slip configuration remains the same, though oriented differently. Alternatively, if the City Council decides to deny the Project, staff recommends the City Council find that it is not a project pursuant to Section 15270 of CEQA in that any project which a public agency rejects or disapproves is not subject to CEQA review. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). This public hearing was also noticed to all residents within a 300' radius per NBMC 21.62.020(B)(2)(c) and published in the newspaper. ATTACHMENTS: Attachment A — Vicinity Map (Aerials) Attachment B — Proposed Dock Configuration Attachment C — Resolution No. 2019-48 (Approving the Project) Attachment D — Resolution No. 2019-48 (Denying the Project) Attachment E — Council Staff Report (May 28, 2019) Attachment F — Council Staff Report (June 11, 2019) Attachment G — Correspondence Received M. -1w I N g25 r 18-11 ATTACHMENT B 6351 Industry Way, Westminster 92683 - oocx « r[eR 'iE.RBte[ - SWIFT SLIP DOCK & PIER BUILDERS, INC PhoneJ949) 631-3121 a Fax: (714) 509-0618 CLIENT: BL__ 3 4/17119 AMENDMENTS: CONZELMAN, MARK REV: DESCRIPTION BY: DATE DRAWN: Checked REVISION DATE: — SITE: 939 VIA LIDO SOUD NB, CA. PROPOSED - ---- - - _ I (8)18" Square Pile PROJECT LINE - 4'23' ---1— 7={ '-1--1 T-7 ❑ - 2' PIERHEAD LINE _ _ w `I ❑ ❑ 43 62 -6" DOCK: 1,201 FT2 7'X68.5'=479.5 FT2 ❑ ❑ 7'X68.5'=479.5 FT2 f 6' X23'= 138 FT2 3' 4'X20'= 80 FT2 1 a' 4'X4'= �2=8FT2X3=24 FT2 2 GANGWAY: 3'X24'=72 FT2 1 PIER: 196 FT2 ❑ 10'X28'=280 FT2-17'-11" wr 10' 4'X4'=1 6 FT2 TOTAL: 1,765 FT2 3'x24' Gangway f ' 'X4' LOBE 9' 3" BULKHEAD LINE 1 18-12 ATTACHMENT C RESOLUTION NO. 2019-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING THE RESIDENTIAL DOCK RECONSTRUCTION PROJECT (FILE NO. 2585-2018) AT THE PROPERTY LOCATED AT 939 VIA LIDO SOUD WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark Conzelman to remove the existing gangway and U -shape float and replace it with a new gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located at 939 Via Lido Soud, City of Newport Beach, County of Orange, State of California ("Property"); WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4) requires City of Newport Beach Public Works Director to issue an AIC for all development areas where the Coastal Commission retains coastal development permit authority; WHEREAS, the Property is located within the coastal zone; WHEREAS, on December 11, 2018, the Public Works Director determined the Project did not comply with NBMC Section 17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line; WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works Director's determination to the City of Newport Beach Harbor Commission by any interested person; WHEREAS, on December 13, 2018, Swift Slip Dock and Pier Builders, Inc., on behalf Mark Conzelman ("Appellant"), filed a timely appeal of the determination with the basis of the appeal, in pertinent part, being the following: the dock will accommodate the applicant's larger vessel and most of the residential docks from 939 Via Lido Soud to Via Waziers extend to the project line; 18-13 Resolution No. 2019-48 Page 2 of 6 WHEREAS, on February 13, 2019, the Newport Beach Harbor Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented to, and considered by, the Harbor Commission at the public hearing. At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works Director's decision to deny the Project; WHEREAS, on February 26, 2019, the Appellant filed a timely appeal of the Harbor Commission's decision with the basis of the appeal, in pertinent part, being the following: the Project will not affect navigation, adjacent property owners or existing harbor uses; WHEREAS, on May 28, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing. At the conclusion of the public hearing, the City Council voted to approve the Project subject to special conditions including a condition that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width); WHEREAS, Council Policy A-1 authorizes a motion to reconsider the vote on any action taken by the City Council at either the same meeting or the following meeting by one of the Council Members who voted with the prevailing side. On June 11, 2019, the City Council approved a motion for reconsideration of the Project; WHEREAS, on June 25, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the Public Works Department; WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend beyond the pierhead line unless approved by Council Policy H-1; 18-14 Resolution No. 2019-48 Page 3 of 6 WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may not extend beyond the pierhead line unless the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses; and WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines") Section 15301 (Class 1) applies to 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 Project consists of the reconstruction of a residential dock that has existed for several decades. The overwater coverage of the Project will increase from 1,287 square feet to 1,765 square feet. The Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15301. CEQA Guidelines Section 15302 (Class 2) applies to the "replacement or reconstruction of existing structures and facilities where the new structures will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced[.]" The Project is in the same location and is substantially the same size, purpose and capacity as the dock system it replaces. Additionally, the Project, once constructed, will accommodate the same size boat as it currently accommodates. The overwater coverage of the Project will increase from 1,287 square feet to 1,765 square feet. The Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15302. Section 2: The City Council does hereby reverse the Harbor Commission's decision and approves the Proposed Dock Configuration at 939 Via Lido Soud, attached hereto as Attachment A, and including the special conditions also set forth in Attachment A, which is incorporated herein by this reference. Additionally, the Project is conditioned so that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width). The City Council's decision is made in accordance with NBMC Section 17.50.040 and is supported by the following findings and facts: A. Section 17.50.040(A) and (B)(1). The Project conforms to the provisions of the NEMC, design criteria, applicable standards and policies in conjunction with plan reviews by the Public Works Department. 18-15 Resolution No. 2019-48 Page 4 of 6 Facts in Support of Finding. The Project conforms to the provisions of the NBMC and applicable policies as delineated in subsections (B), (C), (D), and (E), below. Additionally, the Project conforms to the "City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities." Although the two piles at the end of the finger may extend beyond the pierhead line for structural stability, the extension may be authorized by the Building Official if there are practical difficulties in carrying out the provisions of the code and a special individual reason exists for making the strict letter of this code impractical. In this case, the piles at the end of the finger floats are a necessary structural requirement to support the finger length and the correspondingly large vessel. The Building Official has reviewed the plans and found that the modification complies with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. (California Building Code Section 104.10.) B. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line unless approved by Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Finding. The Project will not negatively impact (1) navigation, (2) adjacent property owners and (3) existing harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field near the convergence of two navigable channels. With respect to (1), the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. The Applicant can currently berth a vessel with an overall length of 80 to 85 feet in the existing configuration. With respect to (2), the Project will not interfere with adjacent property owners as evidenced by correspondence of support for the Project from adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3), the Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Additionally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. C. City Council Policy H-1. Piers and floats may not extend beyond the pierhead line subject to City Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. 18-16 Resolution No. 2019-48 Page 5 of 6 Facts in Support of Finding. The Project will not negatively impact (1) navigation, (2) adjacent property owners and (3) existing harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field near the convergence of two navigable channels. With respect to (1), the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. The Applicant can currently berth a vessel with an overall length of 80 to 85 feet in the existing configuration. With respect to (2), the Project will not interfere with adjacent property owners as evidenced by correspondence of support for the Project from adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3), the Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Additionally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. D. Section 17.50.040(B)(2). The Project is not likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. Facts in Support of Finding. As indicated above, the navigable channel between the Property and the anchorage is 256 feet wide and is adequate for navigation of the channel. Additionally, correspondence in support of the Project was submitted from the adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. The Applicant provided evidence that the Project would have no impact on harbor dredging as the closest pile to the federal project line is set back five feet. Finally, correspondence from the former Harbor 20 sailboat Fleet Captain indicated the Project would not negatively impact sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. E. Section 17.50.040(B)(3). The Project conforms to the policies and regulations of the certified Local Coastal Program. Facts in Support of Finding. The Project will not obstruct public access and will have minimal impacts to public coastal views and coastal resources. As indicated above, the Project will not obstruct public access because the navigable channel between the Property and the anchorage is 256 feet wide and, therefore, is adequate for navigation. Additionally, there are no impacts to public coastal views because there are no adjacent public view corridors. The Project is designed and sited to be harmonious with the natural appearance of the surrounding area. The Project is a replacement of the existing dock situated between private residential docks on either side. The Project will not be out of character with the surrounding area, and is substantially the same size, purpose and capacity as the dock it replaces. 18-17 Resolution No. 2019-48 Page 6 of 6 Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by declared invalid or unconstitutional. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 25th day of June, 2019. Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE c ff Aaron C. Harp City Attorney Attachment A: Proposed Dock Configuration at 939 Via Lido Soud including Special Conditions 18-18 ATTACHMENT A 6351 Industry Way, Westminster 92683 SWIFT SLIP DOCK & PIER BUILDERS, INC PhoneJ949) 631-3121 Niftlor Fax: (714) S09-0618 culRVT BL 3.0 4/17/19 AMENDMENTS:' CONZELMAN, MARK -- REV. DESCRIPTION: BY: DATE'. DRUM: Chocked REVISION DATE. SITE — ---- — 939 VIA LIDO SOUD NB., CA. PROPOSED ---- - (8)18" Square P11 PROJECT LINE' , — — — — 1 PIERHEAD LINE 1 DOCK: 1,201 FT2 ` 7768.5=479.5 FT2 7'X68.5'=479:5 FT2 6' X23'= 138 FT2 4'X20'= 80 FT2 1 4'X4'= 2=8FT2X3=24 FT2 GANGWAY: 3'X24'=72 FT2 PIER: 196 FT2 10'X28=280 FT2 4'X4'=16 FT2 TOTAL: 1,765 FT2 1 -r BULKHEAD I----161 ❑ ❑ 43.8" 82.8" I ° 01 I ❑ ❑ 1 1 1 p' 3'x24' Gangway I LOBE 18-l" a� C"�tIFOA��* Public Works 100 Civic Center Drive Newport Beach, CA 92660 Special Conditions June 11, 2019 939 Via Lido Soud With reference to the plans currently under consideration at the above referenced address to remove the existing gangway and. U-shaped float, and replace with a new gangway lobe, gangway and reconfigured U -shape float, the following conditions will now be in effect: 1. The project proponent is aware of the Harbor Permit Policies (Council Policy H-1) and Title 17 of the City of Newport Beach Municipal Code. The project proponent understands that the above referenced project and structure(s) are subject to all applicable federal, state, county and City of Newport Beach statutes, rules, ordinances, laws, and regulations, including but not limited to these Policies and Codes. 2. Any future work on the above mentioned structure(s) beyond that which is expressly permitted herein may require permits from the City of Newport Beach and any other applicable agencies. Painting and work considered to be cosmetic in nature does not require a permit. This approval does not extend to any changes to the operational characteristics, structures, and project beyond those expressly included as part of this approval. 3. The conditions set forth in this document pertain to the proposal to remove the existing gangway and U -shape float, and replace with a new gangway lobe, gangway and reconfigured U. shape float under consideration. Any future modifications or alterations may require additional and/or updated conditions which may override or change these conditions. These conditions supersede all past conditions associated with this property. 4. Only marine oriented uses are allowed on the pier, pier platform, gangway and float. Patio furniture, plants, etc. are not permitted. 5. In accordance with subsections A and B.3 of Newport Beach Municipal Code section 10.08.030, as amended from time to time or any successor statutes thereto, the project proponent shall obtain the proper permits for equipment and materials storage. Such subsections read "A. Except as otherwise provided in this section, no person shall use any public street, sidewalk, alley or parkway or other public property for the purpose of storing or displaying any equipment, materials or merchandise, or any other commercial purpose. B. Public streets, sidewalks, alleys, or parkways may be used for the purpose of selling, storing, or displaying any equipment, material, merchandise or for other commercial purposes in the following cases:... 3. For the temporary storage of construction equipment or material provided a permit is issued pursuant to Chapter 12.62 of this Code and the storage is consistent with provisions of the Uniform Building Code." 6. The project shall be implemented in conformance with the current version of the City of Newport Beach Local Coastal Program - Coastal Land Use Plan. Page 1 of 2 7. The project proponent acknowledges that the noise regulations in Newport Beach Municipal Code Section 10.28.040, as amended from time to time or any successor statute thereto, apply. Such Section 10.28.040 reads, in pertinent part: "A. Weekdays and Saturdays. No person shall, while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or any other related building activity, operate any tool, equipment or machine in a manner which produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the vicinity, on any weekday except between the hours of seven a.m. and six -thirty p.m., nor on any Saturday except between the hours of eight a.m. and six p.m. B. Sundays and Holidays. No person shall, while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or any other related building activity, operate any tool, equipment or machine in a manner which produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the vicinity, on any Sunday or any federal holiday." 8. Your side property lines extend in the water along their same bearing. Vessels shall not encroach upon the neighbor's property on either side. 9. Vessels berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width) per the City Council's decision on June 11, 2019 and per Resolution 2019-48. 10. All required insurance shall be maintained in full force and effect during the pendency of this Approval In Concept. 11. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless the County of Orange, its Board of Supervisors, the 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 this Approval in Concept, the applicant's exercise of this Approval in Concept, the activities of the applicant carried on under authority of this Approval In Concept, and/or any related California Environmental Quality Act determinations. This indemnification shall include, but not be limited to, damages awarded against the County or 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 applicant, County or City, and/or the parties Initiating or bringing such proceeding. The applicant shall Indemnify the County or City for all of County or City's costs, attorneys' fees, and damages which County or City incurs In enforcing the Indemnification provisions set forth in this condition. The applicant shall pay to the County and/or City upon demand any amount owed to the County or City pursuant to the Indemnification requirements prescribed in this condition. Chris Miller, Public Works Date Applicant Signature Print Name Date Joint Pier Applicant Signature (if applicable) Print Name Date Page 2 of 2 18-21 ATTACHMENT D RESOLUTION NO. 2019-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, DENYING THE RESIDENTIAL DOCK RECONSTRUCTION PROJECT (FILE NO. 2585-2018) AT THE PROPERTY LOCATED AT 939 VIA LIDO SOLID WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark Conzelman to remove the existing gangway and U -shape float and replace it with a new gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located at 939 Via Lido Soud, City of Newport Beach, County of Orange, State of California ("Property"), WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4) requires City of Newport Beach Public Works Director to issue an AIC for all development areas where the Coastal Commission retains coastal development permit authority; WHEREAS, the Property is located within the coastal zone; WHEREAS, on December 11, 2018, the Public Works Director determined the Project did not comply with NBMC Section 17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line; WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works Director's determination to the City of Newport Beach Harbor Commission by any interested person; WHEREAS, on December 13, 2018, Swift Slip Dock and Pier Builders, Inc., on behalf Mark Conzelman ("Appellant"), filed a timely appeal of the decision with the basis of the appeal, in pertinent part, being the following: the dock will accommodate the applicant's larger vessel and most of the residential docks from 939 Via Lido Soud to Via Waziers extend to the project line; 18-22 Resolution No. 2019-48 Page 2 of 5 WHEREAS, on February 13, 2019, the Newport Beach Harbor Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented to, and considered by, the Harbor Commission at the public hearing. At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works Director's decision to deny the Project; WHEREAS, on February 26, 2019, the Appellant filed a timely appeal of the Harbor Commission's decision with the basis of the appeal, in pertinent part, being the following: the Project will not affect navigation, adjacent property owners or existing harbor uses; WHEREAS, on May 28, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing. At the conclusion of the public hearing, the City Council voted to approve the Project subject to special conditions including a condition that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width); WHEREAS, Council Policy A-1 authorizes a motion to reconsider the vote on any action taken by the City Council at either the same meeting or the following meeting by one of the Council Members who voted with the prevailing side. On June 11, 2019, the City Council approved a motion for reconsideration of the Project; WHEREAS, on June 25, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the Public Works Department; WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend beyond the pierhead line unless approved by Council Policy H-1; 18-23 Resolution No. 2019-48 Page 3 of 5 WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may not extend beyond the pierhead line unless the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses; and WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Pursuant to Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines") Section 15270, a project that a public agency rejects or disapproves is not subject to CEQA review. Section 2: The City Council does hereby affirm the Harbor Commission's decision and denies the Proposed Dock Configuration at 939 Via Lido Soud, attached hereto as Attachment A. The City Council's decision is made in accordance with NBMC Section 17.50.040 and is supported by the following findings and facts: A. Section 17.50.040(A) and (B)(1). The Project does not conform to the provisions of the NBMC, design criteria, applicable standards and policies in conjunction with plan reviews by the Public Works Department. Facts in Support of Finding. As proposed, the Project does not comply with Sections 17.30.030(A), 17.50.040(6)(2), and 17.50.040(B)(3), Title 21 and Council Policy H-1 as provided in greater detail in subsections (B), (C), (D), and (E), below. Additionally, the Project does not conform to Figure No. 10A of the "City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities" in that the two piles at the end of the finger extend beyond the pierhead line. B. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line unless approved by Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Findinq. As proposed, the Project does not comply with Section 17.35.030(A) in that the pier would extend 16 feet beyond the pierhead line. C. City Council Policy H-1. As an exception to Section 17.35.030(A), piers and floats may extend beyond the pierhead line pursuant to Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. 18-24 Resolution No. 2019-48 Page 4 of 5 Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and the Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation and existing harbor uses. D. Section 17.50.040(B)(2). The Project is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and the Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation and existing harbor uses. E. Section 17.50.040(B)(3). The Project does not conform to the policies and regulations of the certified Local Coastal Program. Facts in Support of Finding. The Project will obstruct public access. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate a vessel approximately 85 feet long that could extend approximately 23 feet beyond the end of the float into the channel. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. 18-25 Resolution No. 2019-48 Page 5 of 5 Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by declared invalid or unconstitutional. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 25th day of June, 2019. Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE —"' 'L ff""' Aaron C. Harp City Attorney 18-26 ATTACHMENT E Q SEW Pp�T CITY OF �m z NEWPORT BEACH c�<,FORN'P City Council Staff Report May 28, 2019 Agenda Item No. 15 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Webb, Public Works Director - 949-644-3330 dawebb@newportbeachca.gov PREPARED BY: Chris Miller, Public Works Administrative Manager, cmiller@newportbeachca.gov PHONE: 949-644-3043 TITLE: 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision ABSTRACT - The applicant at 939 Via Lido Soud, Mr. Conzelman, is appealing the Harbor Commission's denial of his proposed residential dock reconfiguration ("Project") based upon its findings that the Project would negatively impact (1) navigation; (2) adjacent property owners; and (3) existing harbor uses as provided in City Council Policy H-1. For City Council's consideration is whether to affirm, modify or reverse the Harbor Commission's decision. RECOMMENDATION: a) Conduct a public hearing; b) Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review; c) The City Council may either affirm, modify or reverse the Harbor Commission's denial of the proposed dock reconfiguration at 939 Via Lido Soud. By either modifying or reversing the Harbor Commission's decision, the City Council authorizes staff to issue an Approval in Concept for the project; and d) If the City Council affirms the Harbor Commission's decision, adopt Resolution 2019- 48, A Resolution of the City Council of the City of Newport Beach, California, Affirming the Harbor Commission's Denial of an "Approval In Concept" (Project File No. 2585- 2018) for the Removal and Replacement of a Dock System at the Property Located at 939 Via Lido Soud. FUNDING REQUIREMENTS: Beyond the related staff time needed to administer and process this item, there is no anticipated fiscal impact related to this item. 18-27 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision May 28, 2019 Page 2 DISCUSSION: Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the Pierhead Line unless approved by Council Policy. In 2018, City Council Policy H-1 was amended so that piers or floats may not extend beyond the Pierhead Line unless a determination is made that the extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Existing Permit and Residential Dock Configuration The applicant at 939 Via Lido Soud has a residential dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated short-term anchorage area (See Attachment A). The float is currently configured as a U -shape and is also slanted to the north. According to the applicant's current permit, the existing float is permitted to extend up to the Pierhead Line. However, as seen on the aerials, the existing float extends approximately 9 feet beyond the Pierhead Line (as measured on the southern edge of southern finger). 2018 Application for Residential Dock Reconfiguration In October 2018, the applicant submitted a proposal to remove the existing pier -approach, gangway and U -shape float, and replace it with a new gangway lobe, gangway and reconfigured U -shape float which would extend 16 feet beyond the Pierhead Line (See Attachment B). Staff denied the request based on City Council Policy H-1 which does not allow floats to extend beyond the Pierhead Line unless approved by the Harbor Commission. As indicated above. Citv Council Policv H-1 (also see Attachment Cl states: Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the Pierhead Line unless approved by Council policy. The Harbor Commission may permit a pier or float to extend beyond the Pierhead Line if the Harbor Commission makes a determination that such extension will not negatively impact (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Any permit issued by the City of Newport Beach before July 12, 2018, which allows a pier or float to extend beyond the Pierhead Line, is ratified by the City Council and may continue as valid unless and until such pier or float is extended or enlarged. Since the application seeks to extend the float beyond the Pierhead Line, City Council Policy H-1 is triggered, thus requiring the Harbor Commission to make the findings set forth above in order to grant the permit. 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision May 28, 2019 Page 3 Harbor Lines Defined To provide context when reviewing Harbor Lines and their significance in the harbor, a brief explanation is below: The original Harbor Lines map was approved by the federal government in 1917 then revised periodically until the most recently used 1951 Army Corps of Engineers ("Corps") approved Harbor Lines map. This 1951 map is the version the City references for mapping the harbor lines in the City's GIS system. Harbor lines note the relationship of structures to the channel along the harbor's perimeter. Harbor lines are generally straight lines with a "station number" at either end that help define a particular area of the harbor. Wherever the land curves, there is a new station number defining the beginning of the next line. Bulkhead Line: This line generally, but not always, follows the physical bulkhead around the harbor. As described above, the Bulkhead Line is defined by Bulkhead Station Numbers at every point where the land curves. Lastly, the Bulkhead Line denotes either: (1) the division between tidelands and upland (most cases); or (2) the division between tidelands and the water landward of the Bulkhead Line (i.e. private waterways). Pierhead Line: This line is parallel to, and generally 50 to 80 feet offset from, the Bulkhead Line. Its purpose is to delineate the distance a float may extend out into the water or channel. Project Line: This line is parallel to, and generally 10 to 20 feet offset from the Pierhead Line. The Project Line denotes the dredge limit line for the Corps. (e.g. The Corps dredges from Project Line to Project Line in any given channel). The Project Line creates a dredging "buffer zone" from the Pierhead Line to account for the usual sloughing that occurs when dredging the federal channel. (Note: The harbor lines were originally developed over one hundred years ago when the vision for the future harbor was slightly different from today's reality. Also, via earlier versions of City Council Policy H-1, the City Council previously allowed floats beyond the Pierhead Line in certain parts of the harbor, generally to account for changing beach conditions and the effect of those beaches on the slips. It is important to note the Corps' indifference on any extensions beyond the Pierhead Line. Their practical response, as demonstrated during the last federal dredge project in 2012, was to simply dredge around any impediment, like a float, therefore creating a buffer area.) Harbor Commission Appeal The applicant appealed the Public Works Director's denial to the Harbor Commission, and a Public Hearing was held on February 13, 2019 (See Attachment D). The Harbor Commission discussion mainly focused on the proximity of the property to the adjacent channel and anchorage area. 18-29 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision May 28, 2019 Page 4 As demonstrated in Attachment A, the residential dock is located on a curve on the easterly tip of Lido Isle, opposite Bay Island and across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The channel adjacent to the anchorage area is 256 feet wide and is very active and well used. Additionally, under the existing configuration with a slip width of 21 feet, it is conceivable that an 82 foot vessel could potentially berth in the existing slip. In this hypothetical, worst case scenario, a vessel of this size could legally extend approximately 16 feet beyond the Project Line as measured from the inside of the southern finger. Conversely, the Project as proposed, would accommodate an 85 foot vessel and extend potentially 18.5 feet beyond the Project Line. NBMC 17.25.020(C)(2) states that vessels may not extend bayward beyond the end of the slip a distance of more than the vessel beam. With a float extending beyond the Pierhead Line coupled with a vessel extending even farther beyond, the Harbor Commission was concerned with the lasting effect on navigation. The Harbor Commission upheld the Public Works Director's denial 6-1 with Commissioner Drayton voting against. City Council Appeal The applicant appealed the Harbor Commission's denial to the City Council within the required timeframe (See Attachment E). The proposed application conforms to the applicable provisions of Newport Beach Municipal Code Title 17 entitled "Harbor Code." In addition, the applicant is requesting a modification to the City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria for Commercial and Residential Facilities ("Harbor Design Guidelines") as it relates to the location of the piles at the end of the finger floats beyond the Pierhead Line. Figure No. 10A of the Harbor Design Guidelines describes the relationship between the Pierhead Line and the Project Line with respect to future, potential federal dredging (See Attachment F). However, the City's Building Official may allow this request via a modification if the strict letter of the Harbor Design Standards does not lessen the health, accessibility, life and fire safety or structural requirements. In this case, the applicant is stating that piles at the end of the finger floats are a necessary structural requirement to adequately support the finger length and the corresponding large vessel. Section 17.65.040(F) authorizes the City Council to affirm, modify or reverse the original decision after consideration of an appeal. Additionally, Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the Harbor Design Guidelines and all applicable standards and policies in conjunction with plan reviews by the Public Works Department. As detailed in the attached resolution, the project conforms to the Harbor Design Guidelines and applicable standards and policies of the City with the exception of the aforementioned two piles at the end of the finger floats which the Building Official may grant as a modification. 18-30 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision May 28, 2019 Page 5 If the City Council wishes to modify or reverse the Harbor Commission's decision, the City Council would direct staff to modify Resolution No. 2019-48 as applicable, return to City Council for review and approval (which would include CEQA review) and then direct staff to issue an Approval in Concept for the proposed project as modified, subject to any special conditions, and provided the project complies with all applicable codes. ENVIRONMENTAL REVIEW: Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). The public hearing was also noticed to all residents within a 300' radius per NBMC 21.62.020(B)(2)(c) and published in the newspaper. ATTACHMENTS: Attachment A — Vicinity Map (Aerials) Attachment B — Proposed Dock Reconfiguration Attachment C — City Council Policy H-1 Attachment D — Harbor Commission Minutes (February 13, 2019) Attachment E — Appeal Attachment F — Harbor Design Guidelines (excerpt) Attachment G — Resolution No. 2019-48 18-31 -1w I ?19114. M 6661t"'- fJ 7d -J4 ATTACHMENT B 6351 Industry Way, Westminster 92683 - oocx « r[eR 'iE.RBte[ - SWIFT SLIP DOCK & PIER BUILDERS, INC PhoneJ949) 631-3121 a Fax: (714) 509-0618 CLIENT: BL__ 3 4/17119 AMENDMENTS: CONZELMAN, MARK REV: DESCRIPTION BY: DATE DRAWN: Checked REVISION DATE: — SITE: 939 VIA LIDO SOUD NB, CA. PROPOSED - ---- - - _ I (8)18" Square Pile PROJECT LINE - 4'23' ---1— 7={ '-1--1 T-7 ❑ - 2' PIERHEAD LINE _ _ w `I ❑ ❑ 43 62 -6" DOCK: 1,201 FT2 7'X68.5'=479.5 FT2 ❑ ❑ 7'X68.5'=479.5 FT2 f 6' X23'= 138 FT2 3' 4'X20'= 80 FT2 1 a' 4'X4'= �2=8FT2X3=24 FT2 2 GANGWAY: 3'X24'=72 FT2 1 PIER: 196 FT2 ❑ 10'X28'=280 FT2-17'-11" wr 10' 4'X4'=1 6 FT2 TOTAL: 1,765 FT2 3'x24' Gangway f ' 'X4' LOBE 9' 3" BULKHEAD LINE 1 18-35 ATTACHMENT C HARBOR PERMIT POLICY Background Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the pierhead line unless approved by Council policy. Policy The Harbor Commission may permit a pier or float to extend beyond the pierhead line if the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Any permit issued by the City of Newport Beach before July 12, 2018, which allows a pier or float to extend beyond the pierhead line, is ratified by the City Council and may continue as valid unless and until such pier or float is extended or enlarged. History Adopted H-1- 6-1-1964 Amended H-1 -10-19-1964 Amended H-1 -10-26-1964 Amended H-1 - 4-27-65 Reaffirmed H-1 - 8-30-1966 Amended H-1 -1-9-1967 Amended H-1 - 7-24-1967 Amended H-1 - 6-24-1968 Amended H-1 - 8-19-1968 Amended H-1 -12-23-1968 Amended H-1 -1-26-1970 Reaffirmed H-1 - 3-9-1970 Reaffirmed H-1 - 2-14-1972 Amended H-1 - 8-14-1972 Amended H-1 - 6-25-1973 Reaffirmed H-1 -12-10-1973 Amended H-1 -12-17-1973 Amended H-1 - 6-10-1974 Reaffirmed H-1 -11-11-1974 Amended H-1 - 3-10-1975 Amended H-1 - 4-28-1975 18-36 Amended H-1 - 5-27-1975 Amended H-1 -10-28-1975 Amended H-1 -12-8-1975 Amended H-1 - 5-10-1976 Amended H-1 -10-26-1976 Amended H-1 -11-22-1976 Reaffirmed H-1 -1-24-1977 Amended H-1 - 5-23-1977 Amended H-1 - 5-22-1978 Amended H-1 -12-11-1978 Amended H-1 - 3-12-1979 Amended H-1 - 6-25-1979 Amended H-1 - 6-9-1980 Amended H-1 - 6-23-1980 Amended H-1 -11-23-1981 Amended H-1 - 6-28-1982 Amended H-1 -10-12-1982 Amended H-1 -10-25-1982 Amended H-1 - 6-27-1983 Amended H-1 -1-14-1985 Amended H-1 - 3-25-1985 Amended H-1 - 6-24-1985 Amended H-1 - 6-22-1987 Amended H-1 - 6-13-1988 Amended H-1 -11-28-1988 Amended H-1 - 6-26-1989 Amended H-1 - 9-25-1989 Amended H-1 -11-27-1989 Amended H-1 - 5-14-1990 Amended H-1 - 6-25-1990 Amended H-1 - 4-8-1991 Amended H-1 - 6-24-1991 Amended H-1 -10-28-1991 Reaffirmed H-1 -1-24-1994 Amended H-1 - 6-27-1994 Amended H-1 - 6-26-1995 Amended H-1 - 3-25-1996 Amended H-1- June 8,1998 Amended H-1 -12-14-1998 Amended H-1 - 5-8-2001 Amended H-1 - 9-10-2002 Amended H-1 -10-28-2003 Amended H-1 - 4-13-2004 18-37 Amended H-1 -1-8-2008 Amended H-1 - 5-22-2018 ATTACHMENT D NEWPORT BEACH HARBOR COMMISSION REGULAR MEETING MINUTES Council Chambers — 100 Civic Center Drive, Newport Beach CA Wednesday, February 13, 2019 6:30 PM 1) CALL MEETING TO ORDER The meeting was called to order at 6:30 p.m. 2) ROLL CALL Commissioners: Dave Girling, Chair Scott Cunningham, Vice Chair John Drayton, Secretary Ira Beer, Commissioner Paul Blank, Commissioner Bill Kenney, Commissioner Don Yahn, Commissioner Staff Members: Kurt Borsting, Harbormaster Yolanda Summerhill, Assistant City Attorney Armeen Komeili, Deputy City Attorney Chris Miller, Public Works Manager Jennifer Biddle, Administrative Support Specialist 3) PLEDGE OF ALLEGIANCE — Commissioner Drayton 4) PUBLIC COMMENTS None 5) APPROVAL OF MINUTES Minutes of January 9, 2019, Regular Meeting Chair Girling announced the recording equipment malfunctioned at the January meeting, causing staff to prepare the draft minutes from notes and memory. Commissioners, the public, and parties appearing at the January meeting may offer revisions, but the Commission will review the minutes again in March before approving them. Commissioner Kenney recommended Mr. Mosher's proposed revisions be incorporated into the minutes. Chair Girling clarified that staff prepared draft minutes, and other staff, some Commissioners and some of the parties to the meeting reviewed and provided input to the draft minutes. Commissioner Kenney proposed those comments be incorporated into the minutes as well. With respect to the 2888 Bayshore Drive appeal, the staff report recommended the Harbor Commission find the project exempt from CEQA, but his substitute motion specifically stated the project is subject to the California Environmental Quality Act (CEQA). Chair Girling requested the first instance of "LCP" in the final paragraph on page 2 state "Local Coastal Plan (LCP)." 18-39 6) PUBLIC HEARING(S) Residential Dock Reconfiguration at 939 Via Lido Soud — Appeal The applicant at 939 Via Lido Soud is appealing the Public Works Director's denial of the proposed residential dock reconfiguration. For the Harbor Commission's consideration is the decision whether to uphold, amend, or reverse the Public Works Director's decision to deny an Approval in Concept ("AIC") requesting the residential float to extend beyond the Pierhead Line. Recommendation: 1) Conduct a public hearing; 2) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment; and 3) The Harbor Commission may either uphold, amend, or reverse the Public Works Director's denial of the proposed residential dock reconfiguration at 939 Via Lido Sound. Commissioners Blank and Drayton disclosed longstanding personal relationships with members of the public who may speak to the item. The relationships will in no way influence their ability to make fair and impartial decisions regarding the matter. Commissioners Beer and Yahn disclosed sporadic conversations with Mr. Swift regarding other business, but the relationship will not affect in any way their decisions. Public Works Manager Chris Miller reported the item is an appeal of the Public Works Director's decision to deny the proposed residential dock configuration. The Harbor Commission may either uphold, amend, or reverse the Director's decision. An aerial photo shows the neighboring anchorage area and the approximate distance of 200 feet between the anchorage area and the Project Line. The existing dock is built at an angle or slant to the house, and its fingers extend 6-6.5 feet beyond the Pierhead Line. An aerial photo is a good but not perfect representation of the existing conditions. Council Policy H-1, which became effective in May 2018, states no pier shall extend beyond the Pierhead Line unless it has been previously permitted, in which case the owner may build to the same position. The proposed dock reconfiguration will align the dock with the house and extend the dock fingers to the Project Line. According to a previously approved drawing in the City's records, the float is shown to extend to the Pierhead Line but not beyond. The previously approved configuration is dated September 10, 1981 with "OK 2-9-98" handwritten on its face. The two dates may be explained through staff's practice of pulling the last drawing for a dock, in this case a drawing from 1981, and updating it with new drawings, in this case in 1998. If the Harbor Commission chooses to reverse the Director's decision and approve the proposed dock reconfiguration, it must find the extension does not negatively impact navigation, does not negatively impact adjacent property owners, and does not negatively impact existing harbor uses. In reply to Commissioner Beer's question, Public Works Manager Miller indicated the applicant's drawing shows the distance between the Pierhead Line and the Project Line as 15 feet. Public Works Manager Miller had not measured the distance. Commissioner Beer reported drawings for the properties immediately adjacent to the north and south of the subject property show the distance between the Pierhead Line and the Project Line as 20 feet. Public Works Manager Miller advised that the distance is 20 feet for most locations in the Harbor, but he seemed to recall some locations with a distance of 10 feet. In response to Commissioner Kenney's inquiries, Public Works Manager Miller believed Council Policy H- 1 allows a dock to extend the same distance beyond the Pierhead Line rather than allows the same amount of square footage to extend beyond the Pierhead Line. The first decision for the Harbor Commission is whether the float can extend beyond the Pierhead Line. If the Harbor Commission allows the float to extend beyond the Pierhead Line, the next decision is whether the float can extend to the existing distance of 6- 6.5 feet beyond the Pierhead Line or to the Project Line as the applicant proposes. 18-40 In answer to Commissioner Drayton's query, Public Works Manager Miller explained the 1981 drawing does not show an extension beyond the Pierhead Line. Staff could not find a prior approval for the float to extend any distance beyond the Pierhead Line. In reply to Commissioner Beer's inquiry, Public Works Manager Miller advised that the existing dock is unpermitted compared to the approved drawings on file. In answer to Commissioner Yahn's questions, Public Works Manager Miller remarked that the margin of error for the accuracy of aerial photography is not very much, perhaps one foot. Commissioner Beer shared his calculations for maximum vessel size for the applicant's and six adjacent property owners' docks. The applicant's existing dock could accommodate a vessel of 76.5 feet. A vessel of this size would extend 11.5 feet beyond the Project Line. For the dock at 941 Via Lido Soud, the largest vessel would fall 4 feet short of the Project Line. For the docks at 940 and 944 Via Lido Soud, the largest vessel would fall at the Project Line. For the dock at 933 Via Lido Soud, the largest vessel would extend 12 feet 5 inches beyond the Project Line. For the dock at 929 Via Lido Soud, the largest vessel would extend 7 feet beyond the Project Line. For the dock at 925 Via Lido Soud, the largest vessel would extend 12 feet beyond the Project Line. The applicant's proposed configuration would accommodate an 85 -foot vessel, and it would extend 23 feet beyond the Project Line. Commissioner Kenney reminded Commissioners that the navigable channel was 220 feet wide. The navigable channel between the anchorage and the Newport Harbor Yacht Club mooring field is sometimes cluttered. Chair Girling clarified that the existing dock is not permitted to extend beyond the Pierhead Line. Therefore, any extension would not be eligible for the preexisting conditions listed in Policy H-1. Pete Swift, appellant representative, reported the 1981 drawing on file with the City could show an incorrect location for the Pierhead Line because satellite imagery, GPS, GIS, and aerial photographs were not common in 1981. He thought the criteria for allowing a dock would be merit, use of the dock, the effect on the area, the owner's intent to moor his boat or to generate profit, the long-term effect, and increased safety. The three criteria stated in Policy H-1 are simpler. Between the subject property and Via Koron, there are 64 docks, 50 of which extend to or beyond the Project Line. The final house on Via Lido Soud is 941, which would be a good point to disallow extensions to the Project Line. If the City disallows this project and projects for the other 49 houses, people could build docks without obtaining permits. The distance from the project site to the anchorage is 250 feet and from the project site to mooring field D is 300 feet. Because of the distance, the proposed dock would not be a threat to navigation. Thirty-foot sailboats on a race course would have sufficient room to navigate. Mark Conzelman, applicant, indicated he proposed a dock reconfiguration so that the dock would be uniform with neighbors' docks, could accommodate as many Harbor 20s as possible for regattas, and could accommodate his wife's dream boat. Gary Thorne commented that the Conzelmans support boating and sailing in the Harbor. Rescue boats and chase boats for regattas are allowed to use their dock. The Conzelmans are hospitable and provide first aid to boaters. The Conzelmans' dock is not an issue for laying out a sailboat race course. Dennis Lockhard suggested 220 feet was sufficient width for a navigable waterway. The proposed reconfiguration will enhance navigation and existing Harbor uses and increase the safety of boaters in the area. Philip Thompson related several times Mr. Conzelman had offered assistance or the use of his dock to boaters. The Conzelmans have received commendations and awards for providing service to the community. A dock extending an additional 8 feet into the Harbor would not affect navigation or other boaters. 18-41 In reply to Commissioner Blank's query, Public Works Manager Miller reported there are no restrictions preventing the applicant from relocating the float landward. Commissioner Blank commended Mr. Conzelman for his generosity and service to the community. Commissioners were very careful in drafting the language for Policy H-1. He strongly opposed unpermitted extensions beyond the Pierhead Line. The applicant should consider moving the float system closer to the bulkhead. The dock is located at the convergence of two navigable channels, which are very congested. He supported bringing the dock into compliance at the current time. Chair Girling opened and closed the public hearing with no public comment. Mr. Swift indicated the applicant did not want to build the dock the width of the boat and put the dock out as far as possible. The seawalls are some of the oldest in the Harbor, and dredging will cause them to fail. He has already moved the dock 15-20 feet towards shore and done everything possible to fit the dream boat on the dock. In answer to Commissioner Beer's question, Mr. Swift reported the proposed vessel's overall length is 79 feet. The boat's bow is going to come up over the dock 6-7 feet. He wants to get it as close as possible so they can board on the swim step. In reply to Commissioner Drayton's query, Public Works Manager Miller advised that staff has not received any communications from adjacent properties or neighbors. Commissioner Drayton explained that Commissioners drafted the language of Council Policy H-1 in consideration of the Commission hearing appeals and the Commission's need for some discretion. Given the prevailing winds and the location of docks in the area, he was not concerned about the proposed dock extending 7 feet past the Project Line. Commissioner Beer explained that a 79 -foot vessel put in the slip properly will extend 17 feet. An 85 -foot vessel would extend 23 feet past the Project Line. For the four adjacent properties, the average that any vessel could possibly protrude is just under 11 feet, which is consistent with the existing condition. He encouraged the applicant to move the dock further back in order to accommodate the dream vessel or to limit the beam width so that it is more consistent with the existing condition. The difference between the existing dock and the proposed dock creates an opportunity for more docks in the area to extend beyond the Pierhead Line. The area is very congested in the summer. The fact that the existing dock is not permitted is an important consideration. Commissioner Kenney advised that the dock extension, if approved, will be approved in perpetuity. Docks along Via Lido Soud and Via Lido Nord project beyond the Pierhead Line and may be to and beyond the Project Line, but the Harbor Commission cannot do anything about those docks. This is a difficult decision for the Harbor Commission. Chair Girling noted Council Policy H-1 does not require the Harbor Commission to allow an extension if the configuration meets the three criteria. He questioned whether the proposed configuration would affect adjacent property owners. Allowing the proposed configuration would create a precedent that the Harbor Commission did not want to create. Commissioner Blank moved to uphold the Director's decision denying the application. Commissioner Beer seconded the motion. The motion carried by the following roll call vote: Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Beer, Commissioner Blank, Commissioner Kenney, Commissioner Yahn Nays: Commissioner Drayton Abstaining: None Absent: None 18-42 7) CURRENT BUSINESS Review of Mooring Slip and Rental Initial Application Fee The City Council reviewed the Harbor Department's Fees and Rents at their January 22, 2019 City Council meeting and requested the Harbor Commission to review on fee entitled "Mooring Slip and Rental Initial Application Fee. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Recommend to the City Council removing this proposed fee from further consideration as it is not common practice in the boating community. Harbormaster Kurt Borsting reported in August 2018 the Harbor Commission reviewed and recommended the City Council adopt fee and rent updates, and the Council reviewed and approved all but one update on January 22, 2019. The City Council asked the Harbor Commission to reconsider the one-time mooring and slip initial application fee of $17. In concept, a new customer to the Harbor would pay the fee to cover staff time for processing the application. Several Council Members felt the fee was not usual or customary in either municipal or private marinas. In addition, the fee could be perceived as not being customer -friendly. Incorporating the fee in the City's software proved to be a challenge as well. Staff anticipated the proposed fee would generate approximately $5,100 in annual revenue; therefore, eliminating the fee would not result in a substantial amount of lost revenue. In answer to Commissioner Blank's question, Harbormaster Borsting understood the fee would apply to any new customer regardless of the length of his stay in the Harbor. Commissioner Blank suggested the cost for processing a new permittee application should be included in the mooring transfer fee. Transient visitors should not be burdened with such a fee. In answer to Commissioner Kenney's inquiry, Commissioner Blank clarified his belief as any administrative burden placed on staff for processing a mooring transfer is covered within the existing mooring transfer fee. An additional $17 is not warranted to administer that process. In other words, the fee should not be charged to anyone. Chair Girling requested public comment and received none. Commissioner Beer moved to recommend the City Council remove the mooring and slip initial application fee from further consideration. Commissioner Kenney seconded the motion. The motion carried by the following roll call vote: Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Drayton, Commissioner Beer, Commissioner Blank, Commissioner Kenney, Commissioner Yahn Nays: None Abstaining: None Absent: None Harbor Commission 2018 Objectives: Ad Hoc Committee Updates Each ad hoc committee studying their respective Functional Area within the Commission's 2018 Objectives will provide a progress update. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 18-43 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Receive and file. Functional Area 1: Vice Chair Cunningham reported he attended the California Marine Affairs and Navigation Conference (CMANC), where he learned a lot. Beneficial reuse of sediment as a means to reduce costs has a lot of momentum up and down the coast. He will attend the annual CMANC trip to Washington, DC. The subcommittee is reviewing the entire RGP-54 process in anticipation of renewing the permit in 2020. Bringing a hydraulic dredger to the Harbor is a high priority in 2019. In reply to Commissioner Kenney's inquiries, Public Works Manager Miller advised that technology exists to treat dredged material. The treatment techniques are most effective on small -quantity projects. For the City and deep -channel dredging, hauling dredged material is more economical than treating it. Test cases or small specific projects could utilize onsite treatment, but finding the space to do it is challenging. Treating material could be feasible for a small project such as dredging under a dock. Functional Area 2: Commissioner Drayton advised that efforts to enhance code enforcement have continued. The subcommittee will meet with the Mooring Owners Association to discuss issues of mutual interest. Functional Area 3: Commissioner Beer related that efforts have been focused on establishing policies for modifications to mooring sizes. Data has led the subcommittee to believe a more concise and objective method to determine which fields and which rows can accommodate certain sizes of vessels is possible. Functional Area 4: Commissioner Kenney indicated the review of Title 17 continues. The next topic for discussion is marine activities permits. Hopefully, by late April the subcommittee can begin scheduling stakeholder meetings. Functional Area 5: Chair Girling stated the subcommittee is rescheduling meetings with charter fleet operators. Functional Area 6: Commissioner Blank reported the subcommittee is working to identify constituent groups and schedule outreach sessions for them. The visioning process is running parallel to the General Plan Update. Harbormaster Update — January 2019 The Harbormaster is responsible for on -water management of the City's moorings, the Marina Park Marina, and code enforcement on the water. This report will update the Commission on the Harbor Department's activities for January 2019. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Receive and file. Harbormaster Borsting reported the Harbor Department used a California Department of Fish and Wildlife grant to purchase a portable trailer, 1,000 feet of boom material, absorbents, and other equipment, which can be utilized for oil spills in the Harbor. The grant included training for 16 staff members and an Orange County Deputy Sheriff. Members of the Council and Harbor Commission attended a media event to highlight the new equipment. In January, staff met with various stakeholders in an effort to increase outreach. Currently, 48 live -aboard permittees reside in the Harbor. Staff inspected 26 live -aboard vessels in January. 18-44 Chair Girling and Commissioner commended Harbormaster Borsting for making great progress with the live-aboards. In reply to Commissioners' questions, Harbormaster Borsting indicated staff observes the operability of live - aboard vessels as the vessels travel to Marina Park for the inspection. Staff is aware of the preregistration deadline to apply for a grant to dispose of abandoned vessels. In addition, staff is working to expend the remaining grant funds prior to the deadline. The oil spill trailer is temporarily parked at Marina Park. Staff is searching for long-term parking adjacent to the Harbor and will be mapping deployment locations. Two Harbor Department pontoon -style vessels are rentals. Staff has developed specifications for a patrol boat but is now looking at a bid process for two different styles of vessels, the patrol boat and a work boat. Code Enforcement Supervisor Matt Cosylion will work with the Harbor Department through June 30. In the upcoming budget, staff requested an extension of his time with the Department by 12 months. Commissioner Blank remarked that during the Council planning session, Assistant City Manager Carol Jacobs advocated for retaining Mr. Cosylion in the Harbor Department for another year. Some Council Members and the Mayor seemed amenable. Commissioner Cunningham requested staff confirm permits have been issued for docks when staff observes dock construction. Public Works Manager Miller commented that the dock industry notifies staff when other people are working without a permit. Public Works Manager Miller reported a letter has been sent to the Coast Guard regarding the City's request for the West Anchorage. The goal is to have a program in place in June. An engineering study has been conducted. Commissioner Kenney advised that constituents had contacted him in support of the West Anchorage. 8) COMMISSIONER ANNOUNCEMENTS (NON -DISCUSSION ITEM) Vice Chair Cunningham announced the third annual Harbor underwater cleanup is scheduled for June 1. Commissioner Blank referred to an article in the Stu News regarding Harbor -related businesses. The Harbor Commission approved a list of businesses and amenities needed to maintain a healthy, vibrant, and functioning Harbor. 9) QUESTIONS AND ANSWERS WITH STAFF ON HARBOR -RELATED ISSUES None 10) MATTERS WHICH COMMISSIONERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT (NON -DISCUSSION ITEM) Chair Girling requested an item regarding Lower Castaways be scheduled for the April meeting as he would not be present for the March meeting. In reply to Chair Girling's query, Harbormaster Borsting felt, after a phone conversation with the Coast Guard, the Coast Guard is open to discussing a navigational aid/lighthouse. Commissioner Kenney recommended enhanced lighted markers for the jetties be discussed with the Coast Guard in conjunction with navigational aids. Chair Girling requested an item on this topic in April or May. Staff should engage Keith Yonkers in the next 30-60 days. 11) DATE AND TIME FOR NEXT MEETING: Wednesday, March 13, 2019 16) ADJOURNMENT There being no further business to come before the Harbor Commission, the meeting was adjourned at 8:21 p.m. 18-45 ATTACHMENT E ��WPo�T Appeal Application City Clerk's Office 100 Civic Center Drive / P.O. Box 1768 Newport Beach, CA 92658-8915 10 014 ,i V0 N 949-644-3005 Clerk's Date & Time Stamp EC'EIVED Appeals are time sensitive and must be received by the City Clerk specified ti0 PfFrfQ.J/ JM, _ w 0qcision or final action by a decision -maker. It is advisable to consult with the Department managing the issue if there is question with regards to appealing an action. This is an appeal of the: ❑ Community Development Director Action to the Planning Commission - $1,637 ❑ Zoning Administrator Action to the Planning Commission - $1,637 ❑ Planning Commission Action to the City Council - $1,637 ❑ Hearing Officer Action to the City Council - $1,637 ❑ Building Official/Fire Marshal Action to the Building/Fire Board of Appeals - $1,637 ❑ Chief of Police Action on an Operator License to the City Manager - $710 ❑ City Manager Action on a Special Events Permit to the City Council - $1,639 ❑ Harbor Resources Manager Action on a Lease/Permit to the Harbor Commission - $100 ❑ Harbor Resources Manager Action to the Harbor Commission - Hourly Cost Uf Harbor Commission Action to the City Council - Hourly Cost ❑ Other - Specify decision -maker, appellate body, Municipal Code authority and fee: Appellant Information: Name(s): Address: Y City/State/Zip: 2 Phone:gq • t0 �1 . Appealing Application Regarding:: p� Name of Applicant(s): G h G0t-4 I-M,� , t � Date of Final Decision: �' 201 Project No.: J�'J' V Actility No..- Application o.: Application Site Address: De tion of application: ICC.. �(/1.M., son(§)--rb Appeal (attach a separate Signature of Appellant: FOR OFFICE USE ONLY: Date Ameal filed and Admini City cc: if np , 0 Date: Fee received: ,2 -(_� a 1 20 J�. Department Director, Deputy Director, Staff Cashier Code: CDD004 (Harbor Appeal BR001) F IUsetslClciklSharedlFonnslAppeal Application Updated 12/14/2018 18-46 Conzelman Appeal 939 Via Lido Soud Page 2 Federal Government which created Newport Harbor as we know it today. This action was taken prior to the dedication of Newport Beach in 1936 We are appealing a decision of the Harbor Commission that withholds our right to build to the Project Line as designated by the United States Army Corps of Engineers under the Rivers and Harbors Act of 1899 (30 Stat. 1151, Ch. 425, §11 (March 3, 1899); codified at 33 U.S.C. §404). The Project Line was designated by the Secretary of the Army in a map published on December 26, 195o, by the Army Corps District Engineer, and approved by the Secretary of the Army on April 15, 1951. The map designates 3 lines, the bulkhead line, the pierhead line, and the project line. No subsequent map has been published by the Army Corps of Engineers. The project line is the limit of federal dredging project responsibility (whether or not the Federal Government carries out this responsibility). Newport Beach has approved floats for the mooring of private vessels connected by gangways to the adjacent property to extend to the project line. The Harbor Commission limited the float at 939 Via Lido Soud to the pierhead line. The existing float already extends beyond the pierhead line as do many of the floats which surround Lido Island. Municipal Code §17.35.03oA limits dock floats to the pierhead line "unless approved by Council Policy". Council Policy H-1 allows for dock floats to extend beyond the pierhead line up to the project line if "such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses." Many existing floats along Via Lido Soud extend not only beyond the pierhead line, but often beyond the project line. In some cases the float is parallel to the shore at the project line with wide beamed vessels extending beyond the project line. The proposed float at the project line will not affect navigation, adjacent property owners, or existing harbor uses. Most neighboring properties have floats that extend to or beyond the project line. From 8o1 to 941 Via Lido Soud, almost every property extends to or beyond the project line, and every property extends beyond the pierhead line. If there was to be an impact on navigation, it would have become apparent long before now. As the adjacent property owners enjoy privileges denied to this property owner, there can be no negative impact on adjacent property owners. The only adjacent harbor use is a temporary visitor anchorage which is more than 220 feet from the project line. This is a more than adequate channel for the vessels to pass between the project line and the anchorage boundaries. The City recently adopted a Local Coastal Program. Municipal Code §21.30C.050 governs the construction of docks at private residences. No portion of this provision limits the float to the pierhead line nor modifies the provisions of Municipal Code §17.35.03oA or Council Policy H-1. U.S. Army Corps of Engineer and California Coastal Commission approval will be required. Each agency will apply its required statutory standards to the proposed project. There is nothing in either the Army Corps regulations or the Coastal Commission regulations which would limit the property owner's pier to the pierhead line. 18-47 February 19, 2019 DELIVERED VIA FIRST CLASS REGULAR MAIL Swift Slip Dock and Pier Builders, Inc. Attn: Pete Swift 6351 Industry Way Westminster, CA 92683 RE: 939 Via Lido Soud — Notice of Harbor Commission's Decision Mr. Swift, CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3311 1 949 644-3308 FAX newportbeachca.gov/PublicWorks Pursuant to Newport Beach Municipal Code Section 17.65.040(F), at a noticed public hearing of the Harbor Commission held on February 13, 2019, the Harbor Commission upheld the Public Works Director's denial of the Approval in Concept for the proposed residential dock reconfiguration at 939 Via Lido Soud, Newport Beach, CA. Pursuant to Newport Beach Municipal Code Section 17.65.020, the decision of the Harbor Commission will become final unless appealed by the filing of the necessary form and fees to the City Clerk's Office located at 100 Civic Center Drive, Newport Beach, CA 92660 within fourteen (14) days of the decision. If you have any questions or comments regarding this notice of decision, please feel free to contact me directly at (949) 644-3043. Regards, Chris Miller Administrative Manager Public Works ATTACHMENT F CITY OF NEWPORT BEACH WATERFRONT PROJECT GUIDELINES AND STANDARD S HARBOR DESIGN CRITERIA COMMERCIAL & RESIDENTIAL FACILITIES Q 2017 EDITION 18-49 Outside limit of Pierhead Line (1)(4) guidepile Stringers (TYP) Fig. No. 10A Project Line(l)- Dock Fingers (3) No piles within zone between Pierhead and Project lines (4) I _ Federal Dredging Limit (2) (1) Pierhead and Project lines are established and managed by the federal government. (2) Portions of floating docks that extend into Federal Dredging Limit must be removed by the dock owner at dock owner's cost, when the federal goverment conducts periodic dredging operations. (3) Dock fingers must be designed and constructed in such a way that provides structural integrity of the fingers to resist lateral impact and mooring line loads without guide piles at the finger ends. Continuous structural stringers and/or special moment and shear—carrying splices must be engineered and submitted to the Building Department for approval. (4) The City council has allowed exceptions for dock constrcution beyond the Pierhead Lines as noted in Council Policy H-1. DOCK ARRANGEMENT CASE 9B 18-50 ATTACHMENT G RESOLUTION NO. 2019-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AFFIRMING THE HARBOR COMMISSION'S DENIAL OF AN "APPROVAL IN CONCEPT" (PROJECT FILE NO. 2585-2018) FOR THE REMOVAL AND REPLACEMENT OF A DOCK SYSTEM AT THE PROPERTY LOCATED AT 939 VIA LIDO SOLID WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark Conzelman to remove the existing gangway and U -shape float and replace it with a new gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located at 939 Via Lido Saud, City of Newport Beach, County of Orange, State of California ("Property"); WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4) requires City of Newport Beach Public Works Director to issue an AIC for all development areas where the Coastal Commission retains coastal development permit authority; WHEREAS, the Property is located within the coastal zone; WHEREAS, on or about October 2, 2018, the Public Works Director denied the application and determined that the Project did not comply with NBMC Section 17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the gangway and reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line; WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works Director's decision to the City of Newport Beach Harbor Commission by any interested person; WHEREAS, on or about January 15, 2019, Swift Slip Dock and Pier Builders, Inc. on behalf Mark Conzelman ("Appellant") filed a timely appeal of the decision with the basis of the appeal, in pertinent part, being the following: the dock will accommodate the applicant's larger vessel and most of the residential docks from 939 Via Lido Saud to Via Waziers on Via Lido Soud extend to the project line, 18-51 Resolution No. 2019 - Page 2 of 4 WHEREAS, on or about February 13, 2019, the Newport Beach Harbor Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented to, and considered by, the Harbor Commission at the public hearing. At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works Director's decision to deny the Project; WHEREAS, on or about February 26, 2019, the Appellant filed a timely appeal of the Harbor Commission's decision with the basis of the appeal, in pertinent part, being the following: the Project will not affect navigation, adjacent property owners or existing harbor uses; WHEREAS, on or about May 28, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the Public Works Department; WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend beyond the pierhead line unless approved by Council Policy H-1; WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may not extend beyond the pierhead line unless the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses; and WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Pursuant to Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines") Section 15270, projects which a public agency rejects or disapproves are not subject to CEQA review. 18-52 Resolution No. 2019 - Page 3 of 4 Section 2: The City Council does hereby affirm the Harbor Commission's decision and denies the Project. The City Council's decision is made in accordance with NBMC Section 17.50.040 and is supported by the following findings and facts: A. Section 17.50.040(A) and (B)(1). The Project does not conform to the policies in conjunction with plan reviews by the City. Facts in Support of Finding. The Project does not conform to the Harbor Design Guidelines Figure 10A in that the two piles at the end of the finger extend beyond the federal dredging limit. In order to allow the two piles to extend beyond the federal dredging limit, the Building Official must find there are practical difficulties in carrying out the provisions of the code and a special individual reason exists for making the strict letter of this code impractical. Additionally, the Building Official must find that the modification complies with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. California Building Code Section 104.10. B. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line unless approved by Council policy as may be amended from time to time. Facts in Support of Finding. As proposed, the Project does not comply with Section 17.35.030(A) in that the pier would extend 16 feet beyond the pierhead line. C. City Council Policy H-1. Piers and floats may extend beyond the pierhead line, as an exception to Section 17.35.030(A), if the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5 feet into the navigable channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property owners and existing harbor uses. D. Section 17.50.040(B)(2). The Project is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. 18-53 Resolution No. 2019 - Page 4 of 4 Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5 feet into the navigable channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property owners and existing harbor uses. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by declared invalid or unconstitutional. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 28th day of May, 2019. Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE F AarC. Harp City ttorney 18-54 ATTACHMENT F Q �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report June 11, 2019 Agenda Item No. 4 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Webb, Public Works Director - 949-644-3330 dawebb@newportbeachca.gov PREPARED BY: Chris Miller, Public Works Administrative Manager, cmiller@newportbeachca.gov PHONE: 949-644-3043 TITLE: Resolution No. 2019-48: Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido Soud ABSTRACT: At the May 28, 2019 meeting, the City Council approved the proposed residential dock project at 939 Via Lido Soud, and directed staff to return to the next Council meeting with an updated resolution to reflect the City Council's decision and findings. This report provides the requested resolution approving the proposed residential dock and sets forth the conditions of approval. RECOMMENDATION: a) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, Code of Regulations, Title 14, Chapter 3; and b) Adopt Resolution 2019-48, A Resolution of the City Council of the City of Newport Beach, California, Approving the Residential Dock Reconstruction Project (File No. 2585-2018) at the Property Located at 939 Via Lido Soud. FUNDING REQUIREMENTS: Beyond the related staff time needed to administer and process this item, there is no anticipated fiscal impact related to this item. DISCUSSION: Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the pierhead line unless approved by Council Policy. In 2018, City Council Policy H-1 was amended so that piers or floats may not extend beyond the pierhead line unless a determination is made that the extension will not negatively affect (1) navigation, (2) adjacent property owners, and (3) existing harbor uses. 18-55 Resolution No. 2019-48: Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido Soud June 11, 2019 Page 2 Existing Permit and Residential Dock Configuration The applicant who owns the home at 939 Via Lido Soud ("Property") has a residential dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated short-term anchorage area. The float is currently configured as a U -shape, which is slanted to the north. According to the applicant's current permit, the existing float is permitted to extend up to the pierhead line. However, in the existing configuration, the float extends approximately 9 feet beyond the pierhead line (as measured on the southern edge of the southern finger). 2018 Application for Residential Dock Reconfiguration In October 2018, the applicant submitted a proposal to remove the existing pier -approach, gangway and U -shape float, and replace it with a new gangway lobe, gangway and reconfigured U -shape float which would extend 16 feet beyond the pierhead line. Staff denied the request based on City Council Policy H-1, which does not allow floats to extend beyond the pierhead line unless approved by the Harbor Commission. Harbor Commission Appeal The applicant appealed the Public Works Director's denial to the Harbor Commission, and a public hearing was held on February 13, 2019. After considering the appeal, the Harbor Commission upheld the Public Works Director's denial (6-1) because the Harbor Commission did not make the findings for approval. City Council Appeal The applicant appealed the Harbor Commission's denial to the City Council within the required timeframe on the basis that the proposed application conforms to the applicable provisions of Newport Beach Municipal Code ("NBMC") Title 17 and Council Policy H-1. On May 28, 2019, the appeal was heard by the City Council, which, pursuant to Section 17.65.040(F), is authorized to affirm, modify or reverse the Harbor Commission's decision. At the hearing on May 28, 2019, the City Council considered both oral and written testimony from the applicant, neighbors and the public. The primary issues considered by the City Council at the appeal hearing was whether the proposed configuration of the float was allowed under NBMC Section 17.35.030 (A), 17.50.040(B)(2) and Council Policy H1. Specifically, the NBMC and Council Policy H1 prohibit a float from extending beyond the pierhead line, unless it is determined the extension of the float does not negatively affect (1) navigation, (2) adjacent property owners, and (3) existing harbor uses/permittees. 18-56 Resolution No. 2019-48: Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido Soud June 11, 2019 Page 3 At the hearing, information was presented to the City Council that the navigable channel in front of the Property to the anchorage is 256 feet wide, which provides adequate space to navigate the channel without undue congestion. The applicant also provided the City Council with documents and correspondence from the adjacent property owners at 929, 933, 941 and 944 Via Lido Soud, which indicated the proposed project would not interfere with the adjacent property owners. Evidence was also submitted that the proposed project would not affect harbor dredging as the closest piling to the federal project line is set back five feet from the project line. Finally, correspondence from a former Harbor 20 Fleet Captain indicated the proposed project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. In addition, at the hearing, evidence was presented to the City Council regarding the proposed projects conformance with Harbor Design Guidelines, as required by Section 17.50.040(A) and (13)(1). At the hearing, City staff provided information to the City Council regarding the configuration of the proposed project in regards to the Harbor Design Guidelines. The Building Official has reviewed the design of the proposed project and determined that configuration of the proposed project is acceptable in that it does not lessen health, accessibility, life and fire safety, or structural requirements. After hearing all of the testimony and evidence, the City Council voted 4-3 to approve the proposed dock reconstruction project at 939 Via Lido Soud with a special condition that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width). As part of the motion to approve the proposed project, the City Council directed City staff to return with a resolution approving the project, with conditions. The requested resolution is attached hereto as Attachment A. For background, City staff has also included the May 28, 2019 staff report, which is attached hereto as Attachment B. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. CEQA Guidelines Section 15301 (Class 1) applies to 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." Section 15302 (Class 2) applies to the "replacement or reconstruction of existing structures and facilities where the new structures will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced[J' The replacement residential dock system is in the same location and is substantially the same size, purpose and capacity as the dock system it replaces. The overwater coverage of the new dock system increased from 1,287 square feet to 1,765 square feet. The single, U -shape slip configuration remains the same, though oriented differently. 18-57 Resolution No. 2019-48: Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido Soud June 11, 2019 Page 4 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). The public hearing for the May 28, 2019 meeting was also noticed to all residents within a 300' radius per NBMC 21.62.020(B)(2)(c) and published in the newspaper. ATTACHMENTS: Attachment A — Resolution No. 2019-48 Attachment B — Staff Report from the May 28, 2019 City Council Meeting ATTACHMENT A RESOLUTION NO. 2019-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING THE RESIDENTIAL DOCK RECONSTRUCTION PROJECT (FILE NO. 2585-2018) AT THE PROPERTY LOCATED AT 939 VIA LIDO SOUD WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark Conzelman to remove the existing gangway and U -shape float and replace it with a new gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located at 939 Via Lido Soud, City of Newport Beach, County of Orange, State of California ("Property"); WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4) requires City of Newport Beach Public Works Director to issue an AIC for all development areas where the Coastal Commission retains coastal development permit authority; WHEREAS, the Property is located within the coastal zone; WHEREAS, on or about December 11, 2018, the Public Works Director determined the Project did not comply with NBMC Section 17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the gangway and reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line; WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works Director's determination to the City of Newport Beach Harbor Commission by any interested person; WHEREAS, on or about December 13, 2018, Swift Slip Dock and Pier Builders, Inc. on behalf Mark Conzelman ("Appellant") filed a timely appeal of the determination with the basis of the appeal, in pertinent part, being the following: the dock will accommodate the applicant's larger vessel and most of the residential docks from 939 Via Lido Soud to Via Waziers on Via Lido Soud extend to the project line; 18-59 Resolution No. 2019-48 Page 2 of 5 WHEREAS, on or about February 13, 2019, the Newport Beach Harbor Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented to, and considered by, the Harbor Commission at the public hearing. At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works Director's decision to deny the Project; WHEREAS, on or about February 26, 2019, the Appellant filed a timely appeal of the Harbor Commission's decision with the basis of the appeal, in pertinent part, being the following: the Project will not affect navigation, adjacent property owners or existing harbor uses; WHEREAS, on or about May 28, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the Public Works Department; WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend beyond the pierhead line unless approved by Council Policy H-1; WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may not extend beyond the pierhead line unless the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses; and WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: 18-60 Resolution No. 2019-48 Page 3 of 5 Section 1: Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines") Section 15301 (Class 1) applies to 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 Project is an existing facility that has existed for several decades. The overwater coverage of the Project will increase from 1,287 square feet to 1,765 square feet. The Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15301. CEQA Guidelines Section 15302 (Class 2) applies to the "replacement or reconstruction of existing structures and facilities where the new structures will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced[J' The Project is in the same location and is substantially the same size, purpose and capacity as the dock system it replaces. The overwater coverage of the Project will increase from 1,287 square feet to 1,765 square feet. The Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15302. Section 2: The City Council does hereby reverse the Harbor Commission's decision and approves the Proposed Dock Configuration at 939 Via Lido Saud, attached hereto as Attachment A, and including the special conditions also set forth in Attachment A, which is incorporated herein by this reference. Additionally, the Project is conditioned so that any vessel berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width). The City Council's decision is made in accordance with NBMC Section 17.50.040 and is supported by the following findings and facts: A. Section 17.50.040(A) and (B)(1). The Project conforms to the policies in conjunction with plan reviews by the City. Facts in Support of Finding. The Project conforms to the Harbor Design Guidelines. Although the two piles at the end of the finger may extend beyond the pierhead line, the extension may be authorized by the Building Official if there are practical difficulties in carrying out the provisions of the code and a special individual reason exists for making the strict letter of this code impractical. The Building Official has reviewed the plans and found that the modification complies with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. California Building Code Section 104.10. B. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line subject to City Council Policy H-1 which authorizes such extension provided the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. 18-61 Resolution No. 2019-48 Page 4 of 5 Facts in Support of Finding. The Project will not negatively impact (1) navigation, (2) adjacent property owners or (3) existing harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field near the convergence of two navigable channels. With respect to (1), the navigable channel in front of the Property to the anchorage is 256 feet wide, which provides adequate space to navigate the channel. With respect to (2), the Project will not interfere with adjacent property owners as evidenced by correspondence of support for the Project from adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3), the Applicant provided evidence that the Project would have no impact on harbor dredging as the closest piling to the federal project line is set back five feet. Additionally, correspondence from the former Harbor 20 Fleet Captain indicated the Project would not negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. C. Section 17.50.040(B)(2). The Project is not likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. Facts in Support of Finding. As indicated above, the navigable channel in front of the Property to the anchorage is 256 feet wide, which provides adequate space to navigate the channel. Additionally, correspondence in support of the Project was submitted from the adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. The Applicant provided evidence that the Project would have no impact on harbor dredging as the closest piling to the federal project line is set back five feet. Finally, correspondence from the former Harbor 20 Fleet Captain indicated the Project would not have an impact on sailboat racing in the area of Newport Harbor east of Lido Isle. No other evidence was submitted that the Project would have a negative impact on existing harbor uses. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by declared invalid or unconstitutional. 18-62 Resolution No. 2019-48 Page 5 of 5 Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 11th day of June, 2019. Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachment A: Proposed Dock Configuration at 939 Via Lido Soud including Special Conditions 18-63 ATTACHMENT A 6351 Industry Way, Westminster 92683 SWIFT SLIP DOCK & PIER BUILDERS, INC'. PhoneJ949) 631-3121 Fax: (714) 509-0618 CLIENT - BL 3.0 4/17/19 AMENDMENTS: CONZELMAN, MARK -- REV: DESCRIPTION: BY: DATE"- DRAWN: Checked REVISION DATE. SITE — --"— — _ 939 VIA LIDO SOLID NB CA. PROPOSED - ---- - 1 (8)18" Square Pile PROJECT LINE 2' PIERIHEAD LINE ❑ ❑ 43 -6' 62 -6" DOCK: 1,201 FT2 7X68.5=479.5 FT2 ❑ ❑ 7'X68.5'=479.5 FT2 6'X23'= 138 FT2 s' 4'X20'= 80 FT2 4'X4'= 2=8FT2X3=24 FT2 2 6 GANGWAY: 3'X24'=72 FT2 I PIER: 196 FT2 L❑ o 10'X28'=280 FT2 �--IT-u•• 4'X4'=16 FT2 TOTAL: 1,765 FT2 3'x24' Gangway -28 'X4' LOBE 9'� i O _1.• BULKHEAD LINE. 1 ,s--1 r--,s--i 18-64 I WraR r I c'�t�Fox�N�r. Public Works 100 Civic Center Drive Newport Beach, CA 92660 Special Conditions June 11, 2019 939 Via Lido Soud With reference to the plans currently under consideration at the above referenced address to remove the existing gangway and U-shaped float, and replace with a new gangway lobe, gangway and reconfigured U -shape float, the following conditions will now be in effect: 1. The project proponent is aware of the Harbor Permit Policies (Council Policy H-1) and Title 17 of the City of Newport Beach Municipal Code. The project proponent understands that the above referenced project and structure(s) are subject to all applicable federal, state, county and City of Newport Beach statutes, rules, ordinances, laws, and regulations, including but not limited to these Policies and Codes. 2. Any future work on the above mentioned structure(s) beyond that which is expressly permitted herein may require permits from the City of 'Newport Beach and any other applicable agencies. Painting and work considered to be cosmetic in nature does not require a permit. This approval does not extend to any changes to the operational characteristics, structures, and project beyond those expressly included as part of this approval. 3. The conditions set forth in this document pertain to the proposal to remove the existing gangway and U -shape float, and replace with a new gangway lobe, gangway and reconfigured U. shape float under consideration. Any future modifications or alterations may require additional and/or updated conditions which may override or change these conditions. These conditions supersede all past conditions associated with this property. 4. Only marine oriented uses are allowed on the pier, pier platform, gangway and float. Patio furniture, plants, etc. are not permitted. 5. In accordance with subsections A and B.3 of Newport Beach Municipal Code section 10.08.030, as amended from time to time or any successor statutes thereto, the project proponent shall obtain the proper permits for equipment and materials storage. Such subsections read "A. Except as otherwise provided in this section, no person shall use any public street, sidewalk, alley or parkway or other public property for the purpose of storing or displaying any equipment, materials or merchandise, or any other commercial purpose. B. Public streets, sidewalks, alleys, or parkways may be used for the purpose of selling, storing, or displaying any equipment, material, merchandise or for other commercial purposes in the following cases:... 3. For the temporary storage of construction equipment or material provided a permit is issued pursuant to Chapter 12.62 of this Code and the storage is consistent with provisions of the Uniform Building. Code." 6. The project shall be implemented in conformance with the current version of the City of Newport Beach Local Coastal Program Coastal Land Use Plan. Page 1 of 2 18-65 7. The project proponent acknowledges that the noise regulations in Newport Beach Municipal Code Section 10.28.040, as amended from time to time or any successor statute thereto, apply. Such Section 10.28.040 reads, in pertinent part: "A. Weekdays and Saturdays. No person shall, while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or any other related building activity, operate any tool, equipment or machine in a manner which produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the vicinity, on any weekday except between the hours of seven a.m. and six -thirty p.m., nor on any Saturday except between the hours of eight a.m. and six p.m. B. Sundays and Holidays. No person shall, while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or any other related building activity, operate any tool, equipment or machine in a manner which produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the vicinity, on any Sunday or any federal holiday." 8. Your side property lines extend in the water along their same bearing. Vessels shall not encroach upon the neighbor's property on either side. 9. Vessels berthed at the float shall not extend past the end of the float by more than fifty percent (50%) of the beam (i.e. overall vessel width) per the City Council's decision on June 11, 2019 and per Resolution 2019-48. 10. All required insurance shall be maintained in full force and effect during the pendency of this Approval In. Concept. 11. To the fullest extent permitted bylaw, applicant shall indemnify, defend and hold harmless the County of Orange, its Board of Supervisors, the 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 this Approval in Concept, the applicant's exercise of this Approval. in Concept, the activities of the applicant carried on under authority of this Approval in Concept, and/or any related California Environmental Quality Act determinations. This indemnification shall include, but not be limited to, damages awarded against the County or 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 applicant, County or City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the County or City for all of County or City's costs, attorneys' fees, and damages which County or City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the County and/or City upon demand any amount owed to the County or City pursuant to the indemnification requirements prescribed in this condition. Chris Miller, Public Works Date Applicant Signature Print Name Date Joint Pier Applicant Signature (if applicable) Print Name Date Page 2 of 2 18-66 ATTACHMENT B May 28, 2019 Agenda Item No. 15 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Webb, Public Works Director - 949-644-3330 dawebb@newportbeachca.gov PREPARED BY: Chris Miller, Public Works Administrative Manager, cmiller@newportbeachca.gov PHONE: 949-644-3043 TITLE: 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of Harbor Commission's Decision ABSTRACT - The applicant at 939 Via Lido Soud, Mr. Conzelman, is appealing the Harbor Commission's denial of his proposed residential dock reconfiguration ("Project") based upon its findings that the Project would negatively impact (1) navigation; (2) adjacent property owners; and (3) existing harbor uses as provided in City Council Policy H-1. For City Council's consideration is whether to affirm, modify or reverse the Harbor Commission's decision. RECOMMENDATION: a) Conduct a public hearing; b) Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review; c) The City Council may either affirm, modify or reverse the Harbor Commission's denial of the proposed dock reconfiguration at 939 Via Lido Soud. By either modifying or reversing the Harbor Commission's decision, the City Council authorizes staff to issue an Approval in Concept for the project; and d) If the City Council affirms the Harbor Commission's decision, adopt Resolution 2019- 48, A Resolution of the City Council of the City of Newport Beach, California, Affirming the Harbor Commission's Denial of an "Approval In Concept" (Project File No. 2585- 2018) for the Removal and Replacement of a Dock System at the Property Located at 939 Via Lido Soud. FUNDING REQUIREMENTS: Beyond the related staff time needed to administer and process this item, there is no anticipated fiscal impact related to this item. 18-67 DISCUSSION: Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the Pierhead Line unless approved by Council Policy. In 2018, City Council Policy H-1 was amended so that piers or floats may not extend beyond the Pierhead Line unless a determination is made that the extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Existing Permit and Residential Dock Configuration The applicant at 939 Via Lido Soud has a residential dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated short-term anchorage area (See Attachment A). The float is currently configured as a U -shape and is also slanted to the north. According to the applicant's current permit, the existing float is permitted to extend up to the Pierhead Line. However, as seen on the aerials, the existing float extends approximately 9 feet beyond the Pierhead Line (as measured on the southern edge of southern finger). 2018 Application for Residential Dock Reconfiguration In October 2018, the applicant submitted a proposal to remove the existing pier -approach, gangway and U -shape float, and replace it with a new gangway lobe, gangway and reconfigured U -shape float which would extend 16 feet beyond the Pierhead Line (See Attachment B). Staff denied the request based on City Council Policy H-1 which does not allow floats to extend beyond the Pierhead Line unless approved by the Harbor Commission. As indicated above. Citv Council Policv H-1 (also see Attachment Cl states: Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the Pierhead Line unless approved by Council policy. The Harbor Commission may permit a pier or float to extend beyond the Pierhead Line if the Harbor Commission makes a determination that such extension will not negatively impact (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Any permit issued by the City of Newport Beach before July 12, 2018, which allows a pier or float to extend beyond the Pierhead Line, is ratified by the City Council and may continue as valid unless and until such pier or float is extended or enlarged. Since the application seeks to extend the float beyond the Pierhead Line, City Council Policy H-1 is triggered, thus requiring the Harbor Commission to make the findings set forth above in order to grant the permit. Harbor Lines Defined To provide context when reviewing Harbor Lines and their significance in the harbor, a brief explanation is below: The original Harbor Lines map was approved by the federal government in 1917 then revised periodically until the most recently used 1951 Army Corps of Engineers ("Corps") approved Harbor Lines map. This 1951 map is the version the City references for mapping the harbor lines in the City's GIS system. Harbor lines note the relationship of structures to the channel along the harbor's perimeter. Harbor lines are generally straight lines with a "station number" at either end that help define a particular area of the harbor. Wherever the land curves, there is a new station number defining the beginning of the next line. Bulkhead Line: This line generally, but not always, follows the physical bulkhead around the harbor. As described above, the Bulkhead Line is defined by Bulkhead Station Numbers at every point where the land curves. Lastly, the Bulkhead Line denotes either: (1) the division between tidelands and upland (most cases); or (2) the division between tidelands and the water landward of the Bulkhead Line (i.e. private waterways). Pierhead Line: This line is parallel to, and generally 50 to 80 feet offset from, the Bulkhead Line. Its purpose is to delineate the distance a float may extend out into the water or channel. Project Line: This line is parallel to, and generally 10 to 20 feet offset from the Pierhead Line. The Project Line denotes the dredge limit line for the Corps. (e.g. The Corps dredges from Project Line to Project Line in any given channel). The Project Line creates a dredging "buffer zone" from the Pierhead Line to account for the usual sloughing that occurs when dredging the federal channel. (Note: The harbor lines were originally developed over one hundred years ago when the vision for the future harbor was slightly different from today's reality. Also, via earlier versions of City Council Policy H-1, the City Council previously allowed floats beyond the Pierhead Line in certain parts of the harbor, generally to account for changing beach conditions and the effect of those beaches on the slips. It is important to note the Corps' indifference on any extensions beyond the Pierhead Line. Their practical response, as demonstrated during the last federal dredge project in 2012, was to simply dredge around any impediment, like a float, therefore creating a buffer area.) Harbor Commission Appeal The applicant appealed the Public Works Director's denial to the Harbor Commission, and a Public Hearing was held on February 13, 2019 (See Attachment D). The Harbor Commission discussion mainly focused on the proximity of the property to the adjacent channel and anchorage area. As demonstrated in Attachment A, the residential dock is located on a curve on the easterly tip of Lido Isle, opposite Bay Island and across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The channel adjacent to the anchorage area is 256 feet wide and is very active and well used. Additionally, under the existing configuration with a slip width of 21 feet, it is conceivable that an 82 foot vessel could potentially berth in the existing slip. In this hypothetical, worst case scenario, a vessel of this size could legally extend approximately 16 feet beyond the Project Line as measured from the inside of the southern finger. Conversely, the Project as proposed, would accommodate an 85 foot vessel and extend potentially 18.5 feet beyond the Project Line. NBMC 17.25.020(C)(2) states that vessels may not extend bayward beyond the end of the slip a distance of more than the vessel beam. With a float extending beyond the Pierhead Line coupled with a vessel extending even farther beyond, the Harbor Commission was concerned with the lasting effect on navigation. The Harbor Commission upheld the Public Works Director's denial 6-1 with Commissioner Drayton voting against. City Council Appeal The applicant appealed the Harbor Commission's denial to the City Council within the required timeframe (See Attachment E). The proposed application conforms to the applicable provisions of Newport Beach Municipal Code Title 17 entitled "Harbor Code." In addition, the applicant is requesting a modification to the City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria for Commercial and Residential Facilities ("Harbor Design Guidelines") as it relates to the location of the piles at the end of the finger floats beyond the Pierhead Line. Figure No. 10A of the Harbor Design Guidelines describes the relationship between the Pierhead Line and the Project Line with respect to future, potential federal dredging (See Attachment F). However, the City's Building Official may allow this request via a modification if the strict letter of the Harbor Design Standards does not lessen the health, accessibility, life and fire safety or structural requirements. In this case, the applicant is stating that piles at the end of the finger floats are a necessary structural requirement to adequately support the finger length and the corresponding large vessel. Section 17.65.040(F) authorizes the City Council to affirm, modify or reverse the original decision after consideration of an appeal. Additionally, Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the Harbor Design Guidelines and all applicable standards and policies in conjunction with plan reviews by the Public Works Department. As detailed in the attached resolution, the project conforms to the Harbor Design Guidelines and applicable standards and policies of the City with the exception of the aforementioned two piles at the end of the finger floats which the Building Official may grant as a modification. 18-70 If the City Council wishes to modify or reverse the Harbor Commission's decision, the City Council would direct staff to modify Resolution No. 2019-48 as applicable, return to City Council for review and approval (which would include CEQA review) and then direct staff to issue an Approval in Concept for the proposed project as modified, subject to any special conditions, and provided the project complies with all applicable codes. ENVIRONMENTAL REVIEW: Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). The public hearing was also noticed to all residents within a 300' radius per NBMC 21.62.020(B)(2)(c) and published in the newspaper. ATTACHMENTS: Attachment A — Vicinity Map (Aerials) Attachment B — Proposed Dock Reconfiguration Attachment C — City Council Policy H-1 Attachment D — Harbor Commission Minutes (February 13, 2019) Attachment E — Appeal Attachment F — Harbor Design Guidelines (excerpt) Attachment G — Resolution No. 2019-48 18-71 -1w I ?19114. M 6661t"'- fJ 7t5-/4 ATTACHMENT B 6351 Industry Way, Westminster 92683 - oocx « r[eR 'iE.RBte[ - SWIFT SLIP DOCK & PIER BUILDERS, INC PhoneJ949) 631-3121 a Fax: (714) 509-0618 CLIENT: BL__ 3 4/17119 AMENDMENTS: CONZELMAN, MARK REV: DESCRIPTION BY: DATE DRAWN: Checked REVISION DATE: — SITE: 939 VIA LIDO SOUD NB, CA. PROPOSED - ---- - - _ I (8)18" Square Pile PROJECT LINE - 4'23' ---1— 7={ '-1--1 T-7 ❑ - 2' PIERHEAD LINE _ _ w `I ❑ ❑ 43 62 -6" DOCK: 1,201 FT2 7'X68.5'=479.5 FT2 ❑ ❑ 7'X68.5'=479.5 FT2 f 6' X23'= 138 FT2 3' 4'X20'= 80 FT2 1 a' 4'X4'= �2=8FT2X3=24 FT2 2 GANGWAY: 3'X24'=72 FT2 1 PIER: 196 FT2 ❑ 10'X28'=280 FT2-17'-11" wr 10' 4'X4'=1 6 FT2 TOTAL: 1,765 FT2 3'x24' Gangway f ' 'X4' LOBE 9' 3" BULKHEAD LINE 1 18-75 ATTACHMENT C HARBOR PERMIT POLICY Background Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may not extend beyond the pierhead line unless approved by Council policy. Policy The Harbor Commission may permit a pier or float to extend beyond the pierhead line if the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Any permit issued by the City of Newport Beach before July 12, 2018, which allows a pier or float to extend beyond the pierhead line, is ratified by the City Council and may continue as valid unless and until such pier or float is extended or enlarged. History Adopted H-1- 6-1-1964 Amended H-1 -10-19-1964 Amended H-1 -10-26-1964 Amended H-1 - 4-27-65 Reaffirmed H-1 - 8-30-1966 Amended H-1 -1-9-1967 Amended H-1 - 7-24-1967 Amended H-1 - 6-24-1968 Amended H-1 - 8-19-1968 Amended H-1 -12-23-1968 Amended H-1 -1-26-1970 Reaffirmed H-1 - 3-9-1970 Reaffirmed H-1 - 2-14-1972 Amended H-1 - 8-14-1972 Amended H-1 - 6-25-1973 Reaffirmed H-1 -12-10-1973 Amended H-1 -12-17-1973 Amended H-1 - 6-10-1974 Reaffirmed H-1 -11-11-1974 Amended H-1 - 3-10-1975 Amended H-1 - 4-28-1975 18-76 Amended H-1 - 5-27-1975 Amended H-1 -10-28-1975 Amended H-1 -12-8-1975 Amended H-1 - 5-10-1976 Amended H-1 -10-26-1976 Amended H-1 -11-22-1976 Reaffirmed H-1 -1-24-1977 Amended H-1 - 5-23-1977 Amended H-1 - 5-22-1978 Amended H-1 -12-11-1978 Amended H-1 - 3-12-1979 Amended H-1 - 6-25-1979 Amended H-1 - 6-9-1980 Amended H-1 - 6-23-1980 Amended H-1 -11-23-1981 Amended H-1 - 6-28-1982 Amended H-1 -10-12-1982 Amended H-1 -10-25-1982 Amended H-1 - 6-27-1983 Amended H-1 -1-14-1985 Amended H-1 - 3-25-1985 Amended H-1 - 6-24-1985 Amended H-1 - 6-22-1987 Amended H-1 - 6-13-1988 Amended H-1 -11-28-1988 Amended H-1 - 6-26-1989 Amended H-1 - 9-25-1989 Amended H-1 -11-27-1989 Amended H-1 - 5-14-1990 Amended H-1 - 6-25-1990 Amended H-1 - 4-8-1991 Amended H-1 - 6-24-1991 Amended H-1 -10-28-1991 Reaffirmed H-1 -1-24-1994 Amended H-1 - 6-27-1994 Amended H-1 - 6-26-1995 Amended H-1 - 3-25-1996 Amended H-1- June 8,1998 Amended H-1 -12-14-1998 Amended H-1 - 5-8-2001 Amended H-1 - 9-10-2002 Amended H-1 -10-28-2003 Amended H-1 - 4-13-2004 18-77 Amended H-1 -1-8-2008 Amended H-1 - 5-22-2018 ATTACHMENT D NEWPORT BEACH HARBOR COMMISSION REGULAR MEETING MINUTES Council Chambers — 100 Civic Center Drive, Newport Beach CA Wednesday, February 13, 2019 6:30 PM 1) CALL MEETING TO ORDER The meeting was called to order at 6:30 p.m. 2) ROLL CALL Commissioners: Dave Girling, Chair Scott Cunningham, Vice Chair John Drayton, Secretary Ira Beer, Commissioner Paul Blank, Commissioner Bill Kenney, Commissioner Don Yahn, Commissioner Staff Members: Kurt Borsting, Harbormaster Yolanda Summerhill, Assistant City Attorney Armeen Komeili, Deputy City Attorney Chris Miller, Public Works Manager Jennifer Biddle, Administrative Support Specialist 3) PLEDGE OF ALLEGIANCE — Commissioner Drayton 4) PUBLIC COMMENTS None 5) APPROVAL OF MINUTES Minutes of January 9, 2019, Regular Meeting Chair Girling announced the recording equipment malfunctioned at the January meeting, causing staff to prepare the draft minutes from notes and memory. Commissioners, the public, and parties appearing at the January meeting may offer revisions, but the Commission will review the minutes again in March before approving them. Commissioner Kenney recommended Mr. Mosher's proposed revisions be incorporated into the minutes. Chair Girling clarified that staff prepared draft minutes, and other staff, some Commissioners and some of the parties to the meeting reviewed and provided input to the draft minutes. Commissioner Kenney proposed those comments be incorporated into the minutes as well. With respect to the 2888 Bayshore Drive appeal, the staff report recommended the Harbor Commission find the project exempt from CEQA, but his substitute motion specifically stated the project is subject to the California Environmental Quality Act (CEQA). Chair Girling requested the first instance of "LCP" in the final paragraph on page 2 state "Local Coastal Plan (LCP)." 18-79 6) PUBLIC HEARING(S) Residential Dock Reconfiguration at 939 Via Lido Soud — Appeal The applicant at 939 Via Lido Soud is appealing the Public Works Director's denial of the proposed residential dock reconfiguration. For the Harbor Commission's consideration is the decision whether to uphold, amend, or reverse the Public Works Director's decision to deny an Approval in Concept ("AIC") requesting the residential float to extend beyond the Pierhead Line. Recommendation: 1) Conduct a public hearing; 2) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment; and 3) The Harbor Commission may either uphold, amend, or reverse the Public Works Director's denial of the proposed residential dock reconfiguration at 939 Via Lido Sound. Commissioners Blank and Drayton disclosed longstanding personal relationships with members of the public who may speak to the item. The relationships will in no way influence their ability to make fair and impartial decisions regarding the matter. Commissioners Beer and Yahn disclosed sporadic conversations with Mr. Swift regarding other business, but the relationship will not affect in any way their decisions. Public Works Manager Chris Miller reported the item is an appeal of the Public Works Director's decision to deny the proposed residential dock configuration. The Harbor Commission may either uphold, amend, or reverse the Director's decision. An aerial photo shows the neighboring anchorage area and the approximate distance of 200 feet between the anchorage area and the Project Line. The existing dock is built at an angle or slant to the house, and its fingers extend 6-6.5 feet beyond the Pierhead Line. An aerial photo is a good but not perfect representation of the existing conditions. Council Policy H-1, which became effective in May 2018, states no pier shall extend beyond the Pierhead Line unless it has been previously permitted, in which case the owner may build to the same position. The proposed dock reconfiguration will align the dock with the house and extend the dock fingers to the Project Line. According to a previously approved drawing in the City's records, the float is shown to extend to the Pierhead Line but not beyond. The previously approved configuration is dated September 10, 1981 with "OK 2-9-98" handwritten on its face. The two dates may be explained through staff's practice of pulling the last drawing for a dock, in this case a drawing from 1981, and updating it with new drawings, in this case in 1998. If the Harbor Commission chooses to reverse the Director's decision and approve the proposed dock reconfiguration, it must find the extension does not negatively impact navigation, does not negatively impact adjacent property owners, and does not negatively impact existing harbor uses. In reply to Commissioner Beer's question, Public Works Manager Miller indicated the applicant's drawing shows the distance between the Pierhead Line and the Project Line as 15 feet. Public Works Manager Miller had not measured the distance. Commissioner Beer reported drawings for the properties immediately adjacent to the north and south of the subject property show the distance between the Pierhead Line and the Project Line as 20 feet. Public Works Manager Miller advised that the distance is 20 feet for most locations in the Harbor, but he seemed to recall some locations with a distance of 10 feet. In response to Commissioner Kenney's inquiries, Public Works Manager Miller believed Council Policy H- 1 allows a dock to extend the same distance beyond the Pierhead Line rather than allows the same amount of square footage to extend beyond the Pierhead Line. The first decision for the Harbor Commission is whether the float can extend beyond the Pierhead Line. If the Harbor Commission allows the float to extend beyond the Pierhead Line, the next decision is whether the float can extend to the existing distance of 6- 6.5 feet beyond the Pierhead Line or to the Project Line as the applicant proposes. 18-80 In answer to Commissioner Drayton's query, Public Works Manager Miller explained the 1981 drawing does not show an extension beyond the Pierhead Line. Staff could not find a prior approval for the float to extend any distance beyond the Pierhead Line. In reply to Commissioner Beer's inquiry, Public Works Manager Miller advised that the existing dock is unpermitted compared to the approved drawings on file. In answer to Commissioner Yahn's questions, Public Works Manager Miller remarked that the margin of error for the accuracy of aerial photography is not very much, perhaps one foot. Commissioner Beer shared his calculations for maximum vessel size for the applicant's and six adjacent property owners' docks. The applicant's existing dock could accommodate a vessel of 76.5 feet. A vessel of this size would extend 11.5 feet beyond the Project Line. For the dock at 941 Via Lido Soud, the largest vessel would fall 4 feet short of the Project Line. For the docks at 940 and 944 Via Lido Soud, the largest vessel would fall at the Project Line. For the dock at 933 Via Lido Soud, the largest vessel would extend 12 feet 5 inches beyond the Project Line. For the dock at 929 Via Lido Soud, the largest vessel would extend 7 feet beyond the Project Line. For the dock at 925 Via Lido Soud, the largest vessel would extend 12 feet beyond the Project Line. The applicant's proposed configuration would accommodate an 85 -foot vessel, and it would extend 23 feet beyond the Project Line. Commissioner Kenney reminded Commissioners that the navigable channel was 220 feet wide. The navigable channel between the anchorage and the Newport Harbor Yacht Club mooring field is sometimes cluttered. Chair Girling clarified that the existing dock is not permitted to extend beyond the Pierhead Line. Therefore, any extension would not be eligible for the preexisting conditions listed in Policy H-1. Pete Swift, appellant representative, reported the 1981 drawing on file with the City could show an incorrect location for the Pierhead Line because satellite imagery, GPS, GIS, and aerial photographs were not common in 1981. He thought the criteria for allowing a dock would be merit, use of the dock, the effect on the area, the owner's intent to moor his boat or to generate profit, the long-term effect, and increased safety. The three criteria stated in Policy H-1 are simpler. Between the subject property and Via Koron, there are 64 docks, 50 of which extend to or beyond the Project Line. The final house on Via Lido Soud is 941, which would be a good point to disallow extensions to the Project Line. If the City disallows this project and projects for the other 49 houses, people could build docks without obtaining permits. The distance from the project site to the anchorage is 250 feet and from the project site to mooring field D is 300 feet. Because of the distance, the proposed dock would not be a threat to navigation. Thirty-foot sailboats on a race course would have sufficient room to navigate. Mark Conzelman, applicant, indicated he proposed a dock reconfiguration so that the dock would be uniform with neighbors' docks, could accommodate as many Harbor 20s as possible for regattas, and could accommodate his wife's dream boat. Gary Thorne commented that the Conzelmans support boating and sailing in the Harbor. Rescue boats and chase boats for regattas are allowed to use their dock. The Conzelmans are hospitable and provide first aid to boaters. The Conzelmans' dock is not an issue for laying out a sailboat race course. Dennis Lockhard suggested 220 feet was sufficient width for a navigable waterway. The proposed reconfiguration will enhance navigation and existing Harbor uses and increase the safety of boaters in the area. Philip Thompson related several times Mr. Conzelman had offered assistance or the use of his dock to boaters. The Conzelmans have received commendations and awards for providing service to the community. A dock extending an additional 8 feet into the Harbor would not affect navigation or other boaters. 18-81 In reply to Commissioner Blank's query, Public Works Manager Miller reported there are no restrictions preventing the applicant from relocating the float landward. Commissioner Blank commended Mr. Conzelman for his generosity and service to the community. Commissioners were very careful in drafting the language for Policy H-1. He strongly opposed unpermitted extensions beyond the Pierhead Line. The applicant should consider moving the float system closer to the bulkhead. The dock is located at the convergence of two navigable channels, which are very congested. He supported bringing the dock into compliance at the current time. Chair Girling opened and closed the public hearing with no public comment. Mr. Swift indicated the applicant did not want to build the dock the width of the boat and put the dock out as far as possible. The seawalls are some of the oldest in the Harbor, and dredging will cause them to fail. He has already moved the dock 15-20 feet towards shore and done everything possible to fit the dream boat on the dock. In answer to Commissioner Beer's question, Mr. Swift reported the proposed vessel's overall length is 79 feet. The boat's bow is going to come up over the dock 6-7 feet. He wants to get it as close as possible so they can board on the swim step. In reply to Commissioner Drayton's query, Public Works Manager Miller advised that staff has not received any communications from adjacent properties or neighbors. Commissioner Drayton explained that Commissioners drafted the language of Council Policy H-1 in consideration of the Commission hearing appeals and the Commission's need for some discretion. Given the prevailing winds and the location of docks in the area, he was not concerned about the proposed dock extending 7 feet past the Project Line. Commissioner Beer explained that a 79 -foot vessel put in the slip properly will extend 17 feet. An 85 -foot vessel would extend 23 feet past the Project Line. For the four adjacent properties, the average that any vessel could possibly protrude is just under 11 feet, which is consistent with the existing condition. He encouraged the applicant to move the dock further back in order to accommodate the dream vessel or to limit the beam width so that it is more consistent with the existing condition. The difference between the existing dock and the proposed dock creates an opportunity for more docks in the area to extend beyond the Pierhead Line. The area is very congested in the summer. The fact that the existing dock is not permitted is an important consideration. Commissioner Kenney advised that the dock extension, if approved, will be approved in perpetuity. Docks along Via Lido Soud and Via Lido Nord project beyond the Pierhead Line and may be to and beyond the Project Line, but the Harbor Commission cannot do anything about those docks. This is a difficult decision for the Harbor Commission. Chair Girling noted Council Policy H-1 does not require the Harbor Commission to allow an extension if the configuration meets the three criteria. He questioned whether the proposed configuration would affect adjacent property owners. Allowing the proposed configuration would create a precedent that the Harbor Commission did not want to create. Commissioner Blank moved to uphold the Director's decision denying the application. Commissioner Beer seconded the motion. The motion carried by the following roll call vote: Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Beer, Commissioner Blank, Commissioner Kenney, Commissioner Yahn Nays: Commissioner Drayton Abstaining: None Absent: None 18-82 7) CURRENT BUSINESS Review of Mooring Slip and Rental Initial Application Fee The City Council reviewed the Harbor Department's Fees and Rents at their January 22, 2019 City Council meeting and requested the Harbor Commission to review on fee entitled "Mooring Slip and Rental Initial Application Fee. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Recommend to the City Council removing this proposed fee from further consideration as it is not common practice in the boating community. Harbormaster Kurt Borsting reported in August 2018 the Harbor Commission reviewed and recommended the City Council adopt fee and rent updates, and the Council reviewed and approved all but one update on January 22, 2019. The City Council asked the Harbor Commission to reconsider the one-time mooring and slip initial application fee of $17. In concept, a new customer to the Harbor would pay the fee to cover staff time for processing the application. Several Council Members felt the fee was not usual or customary in either municipal or private marinas. In addition, the fee could be perceived as not being customer -friendly. Incorporating the fee in the City's software proved to be a challenge as well. Staff anticipated the proposed fee would generate approximately $5,100 in annual revenue; therefore, eliminating the fee would not result in a substantial amount of lost revenue. In answer to Commissioner Blank's question, Harbormaster Borsting understood the fee would apply to any new customer regardless of the length of his stay in the Harbor. Commissioner Blank suggested the cost for processing a new permittee application should be included in the mooring transfer fee. Transient visitors should not be burdened with such a fee. In answer to Commissioner Kenney's inquiry, Commissioner Blank clarified his belief as any administrative burden placed on staff for processing a mooring transfer is covered within the existing mooring transfer fee. An additional $17 is not warranted to administer that process. In other words, the fee should not be charged to anyone. Chair Girling requested public comment and received none. Commissioner Beer moved to recommend the City Council remove the mooring and slip initial application fee from further consideration. Commissioner Kenney seconded the motion. The motion carried by the following roll call vote: Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Drayton, Commissioner Beer, Commissioner Blank, Commissioner Kenney, Commissioner Yahn Nays: None Abstaining: None Absent: None Harbor Commission 2018 Objectives: Ad Hoc Committee Updates Each ad hoc committee studying their respective Functional Area within the Commission's 2018 Objectives will provide a progress update. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 18-83 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Receive and file. Functional Area 1: Vice Chair Cunningham reported he attended the California Marine Affairs and Navigation Conference (CMANC), where he learned a lot. Beneficial reuse of sediment as a means to reduce costs has a lot of momentum up and down the coast. He will attend the annual CMANC trip to Washington, DC. The subcommittee is reviewing the entire RGP-54 process in anticipation of renewing the permit in 2020. Bringing a hydraulic dredger to the Harbor is a high priority in 2019. In reply to Commissioner Kenney's inquiries, Public Works Manager Miller advised that technology exists to treat dredged material. The treatment techniques are most effective on small -quantity projects. For the City and deep -channel dredging, hauling dredged material is more economical than treating it. Test cases or small specific projects could utilize onsite treatment, but finding the space to do it is challenging. Treating material could be feasible for a small project such as dredging under a dock. Functional Area 2: Commissioner Drayton advised that efforts to enhance code enforcement have continued. The subcommittee will meet with the Mooring Owners Association to discuss issues of mutual interest. Functional Area 3: Commissioner Beer related that efforts have been focused on establishing policies for modifications to mooring sizes. Data has led the subcommittee to believe a more concise and objective method to determine which fields and which rows can accommodate certain sizes of vessels is possible. Functional Area 4: Commissioner Kenney indicated the review of Title 17 continues. The next topic for discussion is marine activities permits. Hopefully, by late April the subcommittee can begin scheduling stakeholder meetings. Functional Area 5: Chair Girling stated the subcommittee is rescheduling meetings with charter fleet operators. Functional Area 6: Commissioner Blank reported the subcommittee is working to identify constituent groups and schedule outreach sessions for them. The visioning process is running parallel to the General Plan Update. Harbormaster Update — January 2019 The Harbormaster is responsible for on -water management of the City's moorings, the Marina Park Marina, and code enforcement on the water. This report will update the Commission on the Harbor Department's activities for January 2019. Recommendation: 1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2) Receive and file. Harbormaster Borsting reported the Harbor Department used a California Department of Fish and Wildlife grant to purchase a portable trailer, 1,000 feet of boom material, absorbents, and other equipment, which can be utilized for oil spills in the Harbor. The grant included training for 16 staff members and an Orange County Deputy Sheriff. Members of the Council and Harbor Commission attended a media event to highlight the new equipment. In January, staff met with various stakeholders in an effort to increase outreach. Currently, 48 live -aboard permittees reside in the Harbor. Staff inspected 26 live -aboard vessels in January. 18-84 Chair Girling and Commissioner commended Harbormaster Borsting for making great progress with the live-aboards. In reply to Commissioners' questions, Harbormaster Borsting indicated staff observes the operability of live - aboard vessels as the vessels travel to Marina Park for the inspection. Staff is aware of the preregistration deadline to apply for a grant to dispose of abandoned vessels. In addition, staff is working to expend the remaining grant funds prior to the deadline. The oil spill trailer is temporarily parked at Marina Park. Staff is searching for long-term parking adjacent to the Harbor and will be mapping deployment locations. Two Harbor Department pontoon -style vessels are rentals. Staff has developed specifications for a patrol boat but is now looking at a bid process for two different styles of vessels, the patrol boat and a work boat. Code Enforcement Supervisor Matt Cosylion will work with the Harbor Department through June 30. In the upcoming budget, staff requested an extension of his time with the Department by 12 months. Commissioner Blank remarked that during the Council planning session, Assistant City Manager Carol Jacobs advocated for retaining Mr. Cosylion in the Harbor Department for another year. Some Council Members and the Mayor seemed amenable. Commissioner Cunningham requested staff confirm permits have been issued for docks when staff observes dock construction. Public Works Manager Miller commented that the dock industry notifies staff when other people are working without a permit. Public Works Manager Miller reported a letter has been sent to the Coast Guard regarding the City's request for the West Anchorage. The goal is to have a program in place in June. An engineering study has been conducted. Commissioner Kenney advised that constituents had contacted him in support of the West Anchorage. 8) COMMISSIONER ANNOUNCEMENTS (NON -DISCUSSION ITEM) Vice Chair Cunningham announced the third annual Harbor underwater cleanup is scheduled for June 1. Commissioner Blank referred to an article in the Stu News regarding Harbor -related businesses. The Harbor Commission approved a list of businesses and amenities needed to maintain a healthy, vibrant, and functioning Harbor. 9) QUESTIONS AND ANSWERS WITH STAFF ON HARBOR -RELATED ISSUES None 10) MATTERS WHICH COMMISSIONERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT (NON -DISCUSSION ITEM) Chair Girling requested an item regarding Lower Castaways be scheduled for the April meeting as he would not be present for the March meeting. In reply to Chair Girling's query, Harbormaster Borsting felt, after a phone conversation with the Coast Guard, the Coast Guard is open to discussing a navigational aid/lighthouse. Commissioner Kenney recommended enhanced lighted markers for the jetties be discussed with the Coast Guard in conjunction with navigational aids. Chair Girling requested an item on this topic in April or May. Staff should engage Keith Yonkers in the next 30-60 days. 11) DATE AND TIME FOR NEXT MEETING: Wednesday, March 13, 2019 16) ADJOURNMENT There being no further business to come before the Harbor Commission, the meeting was adjourned at 8:21 p.m. 18-85 ATTACHMENT E ��WPo�T Appeal Application City Clerk's Office 100 Civic Center Drive / P.O. Box 1768 Newport Beach, CA 92658-8915 10 014 ,i V0 N 949-644-3005 Clerk's Date & Time Stamp EC'EIVED Appeals are time sensitive and must be received by the City Clerk specified ti0 PfFrfQ.J/ JM, _ w 0qcision or final action by a decision -maker. It is advisable to consult with the Department managing the issue if there is question with regards to appealing an action. This is an appeal of the: ❑ Community Development Director Action to the Planning Commission - $1,637 ❑ Zoning Administrator Action to the Planning Commission - $1,637 ❑ Planning Commission Action to the City Council - $1,637 ❑ Hearing Officer Action to the City Council - $1,637 ❑ Building Official/Fire Marshal Action to the Building/Fire Board of Appeals - $1,637 ❑ Chief of Police Action on an Operator License to the City Manager - $710 ❑ City Manager Action on a Special Events Permit to the City Council - $1,639 ❑ Harbor Resources Manager Action on a Lease/Permit to the Harbor Commission - $100 ❑ Harbor Resources Manager Action to the Harbor Commission - Hourly Cost Uf Harbor Commission Action to the City Council - Hourly Cost ❑ Other - Specify decision -maker, appellate body, Municipal Code authority and fee: Appellant Information: Name(s): Address: Y City/State/Zip: 2 Phone:gq • t0 �1 . Appealing Application Regarding:: p� Name of Applicant(s): G h G0t-4 I-M,� , t � Date of Final Decision: �' 201 Project No.: J�'J' V Actility No..- Application o.: Application Site Address: De tion of application: ICC.. �(/1.M., son(§)--rb Appeal (attach a separate Signature of Appellant: FOR OFFICE USE ONLY: Date Ameal filed and Admini City cc: if np , 0 Date: Fee received: ,2 -(_� a 1 20 J�. Department Director, Deputy Director, Staff Cashier Code: CDD004 (Harbor Appeal BR001) F IUsetslClciklSharedlFonnslAppeal Application Updated 12/14/2018 18-86 Conzelman Appeal 939 Via Lido Soud Page 2 Federal Government which created Newport Harbor as we know it today. This action was taken prior to the dedication of Newport Beach in 1936 We are appealing a decision of the Harbor Commission that withholds our right to build to the Project Line as designated by the United States Army Corps of Engineers under the Rivers and Harbors Act of 1899 (30 Stat. 1151, Ch. 425, §11 (March 3, 1899); codified at 33 U.S.C. §404). The Project Line was designated by the Secretary of the Army in a map published on December 26, 195o, by the Army Corps District Engineer, and approved by the Secretary of the Army on April 15, 1951. The map designates 3 lines, the bulkhead line, the pierhead line, and the project line. No subsequent map has been published by the Army Corps of Engineers. The project line is the limit of federal dredging project responsibility (whether or not the Federal Government carries out this responsibility). Newport Beach has approved floats for the mooring of private vessels connected by gangways to the adjacent property to extend to the project line. The Harbor Commission limited the float at 939 Via Lido Soud to the pierhead line. The existing float already extends beyond the pierhead line as do many of the floats which surround Lido Island. Municipal Code §17.35.03oA limits dock floats to the pierhead line "unless approved by Council Policy". Council Policy H-1 allows for dock floats to extend beyond the pierhead line up to the project line if "such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses." Many existing floats along Via Lido Soud extend not only beyond the pierhead line, but often beyond the project line. In some cases the float is parallel to the shore at the project line with wide beamed vessels extending beyond the project line. The proposed float at the project line will not affect navigation, adjacent property owners, or existing harbor uses. Most neighboring properties have floats that extend to or beyond the project line. From 8o1 to 941 Via Lido Soud, almost every property extends to or beyond the project line, and every property extends beyond the pierhead line. If there was to be an impact on navigation, it would have become apparent long before now. As the adjacent property owners enjoy privileges denied to this property owner, there can be no negative impact on adjacent property owners. The only adjacent harbor use is a temporary visitor anchorage which is more than 220 feet from the project line. This is a more than adequate channel for the vessels to pass between the project line and the anchorage boundaries. The City recently adopted a Local Coastal Program. Municipal Code §21.30C.050 governs the construction of docks at private residences. No portion of this provision limits the float to the pierhead line nor modifies the provisions of Municipal Code §17.35.03oA or Council Policy H-1. U.S. Army Corps of Engineer and California Coastal Commission approval will be required. Each agency will apply its required statutory standards to the proposed project. There is nothing in either the Army Corps regulations or the Coastal Commission regulations which would limit the property owner's pier to the pierhead line. 18-87 February 19, 2019 DELIVERED VIA FIRST CLASS REGULAR MAIL Swift Slip Dock and Pier Builders, Inc. Attn: Pete Swift 6351 Industry Way Westminster, CA 92683 RE: 939 Via Lido Soud — Notice of Harbor Commission's Decision Mr. Swift, CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3311 1 949 644-3308 FAX newportbeachca.gov/PublicWorks Pursuant to Newport Beach Municipal Code Section 17.65.040(F), at a noticed public hearing of the Harbor Commission held on February 13, 2019, the Harbor Commission upheld the Public Works Director's denial of the Approval in Concept for the proposed residential dock reconfiguration at 939 Via Lido Soud, Newport Beach, CA. Pursuant to Newport Beach Municipal Code Section 17.65.020, the decision of the Harbor Commission will become final unless appealed by the filing of the necessary form and fees to the City Clerk's Office located at 100 Civic Center Drive, Newport Beach, CA 92660 within fourteen (14) days of the decision. If you have any questions or comments regarding this notice of decision, please feel free to contact me directly at (949) 644-3043. Regards, Chris Miller Administrative Manager Public Works ATTACHMENT F CITY OF NEWPORT BEACH WATERFRONT PROJECT GUIDELINES AND STANDARD S HARBOR DESIGN CRITERIA COMMERCIAL & RESIDENTIAL FACILITIES Q 2017 EDITION 18-89 Outside limit of Pierhead Line (1)(4) guidepile Stringers (TYP) Fig. No. 10A Project Line(l)- Dock Fingers (3) No piles within zone between Pierhead and Project lines (4) I _ Federal Dredging Limit (2) (1) Pierhead and Project lines are established and managed by the federal government. (2) Portions of floating docks that extend into Federal Dredging Limit must be removed by the dock owner at dock owner's cost, when the federal goverment conducts periodic dredging operations. (3) Dock fingers must be designed and constructed in such a way that provides structural integrity of the fingers to resist lateral impact and mooring line loads without guide piles at the finger ends. Continuous structural stringers and/or special moment and shear—carrying splices must be engineered and submitted to the Building Department for approval. (4) The City council has allowed exceptions for dock constrcution beyond the Pierhead Lines as noted in Council Policy H-1. DOCK ARRANGEMENT CASE 9B 18-90 ATTACHMENT G RESOLUTION NO. 2019-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AFFIRMING THE HARBOR COMMISSION'S DENIAL OF AN "APPROVAL IN CONCEPT" (PROJECT FILE NO. 2585-2018) FOR THE REMOVAL AND REPLACEMENT OF A DOCK SYSTEM AT THE PROPERTY LOCATED AT 939 VIA LIDO SOLID WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark Conzelman to remove the existing gangway and U -shape float and replace it with a new gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located at 939 Via Lido Saud, City of Newport Beach, County of Orange, State of California ("Property"); WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4) requires City of Newport Beach Public Works Director to issue an AIC for all development areas where the Coastal Commission retains coastal development permit authority; WHEREAS, the Property is located within the coastal zone; WHEREAS, on or about October 2, 2018, the Public Works Director denied the application and determined that the Project did not comply with NBMC Section 17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the gangway and reconfigured U -shape float (currently permitted to extend up to the pierhead line) would extend 16 feet beyond the pierhead line; WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works Director's decision to the City of Newport Beach Harbor Commission by any interested person; WHEREAS, on or about January 15, 2019, Swift Slip Dock and Pier Builders, Inc. on behalf Mark Conzelman ("Appellant") filed a timely appeal of the decision with the basis of the appeal, in pertinent part, being the following: the dock will accommodate the applicant's larger vessel and most of the residential docks from 939 Via Lido Saud to Via Waziers on Via Lido Soud extend to the project line, 18-91 Resolution No. 2019 - Page 2 of 4 WHEREAS, on or about February 13, 2019, the Newport Beach Harbor Commission held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented to, and considered by, the Harbor Commission at the public hearing. At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works Director's decision to deny the Project; WHEREAS, on or about February 26, 2019, the Appellant filed a timely appeal of the Harbor Commission's decision with the basis of the appeal, in pertinent part, being the following: the Project will not affect navigation, adjacent property owners or existing harbor uses; WHEREAS, on or about May 28, 2019, the City Council held a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. Notice of the time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor Development Permits upon the determination that a new permit and/or a revision to an existing permit conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the Public Works Department, WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend beyond the pierhead line unless approved by Council Policy H-1; WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may not extend beyond the pierhead line unless the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses; and WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Pursuant to Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines") Section 15270, projects which a public agency rejects or disapproves are not subject to CEQA review. 18-92 Resolution No. 2019 - Page 3 of 4 Section 2: The City Council does hereby affirm the Harbor Commission's decision and denies the Project. The City Council's decision is made in accordance with NBMC Section 17.50.040 and is supported by the following findings and facts: A. Section 17.50.040(A) and (B)(1). The Project does not conform to the policies in conjunction with plan reviews by the City. Facts in Support of Finding. The Project does not conform to the Harbor Design Guidelines Figure 10A in that the two piles at the end of the finger extend beyond the federal dredging limit. In order to allow the two piles to extend beyond the federal dredging limit, the Building Official must find there are practical difficulties in carrying out the provisions of the code and a special individual reason exists for making the strict letter of this code impractical. Additionally, the Building Official must find that the modification complies with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. California Building Code Section 104.10. B. Section 17.35.030(A). Piers and floats may not extend beyond the pierhead line unless approved by Council policy as may be amended from time to time. Facts in Support of Finding. As proposed, the Project does not comply with Section 17.35.030(A) in that the pier would extend 16 feet beyond the pierhead line. C. City Council Policy H-1. Piers and floats may extend beyond the pierhead line, as an exception to Section 17.35.030(A), if the Harbor Commission makes a determination that such extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses. Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5 feet into the navigable channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property owners and existing harbor uses. D. Section 17.50.040(B)(2). The Project is likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor. 18-93 Resolution No. 2019 - Page 4 of 4 Facts in Support of Finding. The Project is located in an area congested with various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated short-term anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of two navigable channels. The navigable channel is 256 feet wide with significant congestion between the anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5 feet into the navigable channel. Therefore, the Project, as proposed, does not comply with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property owners and existing harbor uses. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by declared invalid or unconstitutional. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this 28th day of May, 2019. Diane B. Dixon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE F AarC. Harp City ttorney 18-94 ATTACHMENT G From: Harp, Aaron Sent: Thursday, June 13, 2019 7:04 AM To: Brown, Leilani Subject: FW: Since it is being reconsidered... From: Blank, Paul Sent: Wednesday, June 12, 2019 11:56 AM To: Blank, Paul Subject: Since it is being reconsidered... I believe you are being asked to reconsider a proposed dock system, here are the findings on which I based my decision: • The existing structure is not permitted. It extends at least 6' beyond pierhead line, the previously permitted extent of structures at that location. • There was no provision in any previous code or policy that would have recognized extension beyond the pierhead line for any proposed or actual structure in that location. • That location is a congested area of the harbor and heavily used by: o Kayakers and paddle boarders o Single and double scull rowers o Racing sailing dinghies o Harbor cruisers o Participants in the Christmas Boat Parade The proposed dock system presented a significant negative change for all of the above harbor uses. • A new structure extending beyond the existing one posed a hazard to navigation in that area. • A new/different boat extending beyond the proposed dock system as described by the applicant posed a significant hazard to navigation in that area especially at night. • Granting an extension beyond the pierhead line in this location would be precedent setting and likely result in other, perhaps many other requests for similar such extensions or exemptions in this and other locations around the harbor likely leading to significant harbor use changes. • The desired dock configuration, size and orientation could be accommodated within the pierhead line if the system were moved closer to and perhaps up against the bulkhead. That would likely require dredging and perhaps reinforcement of the existing seawall but seemed a worthy compromise to achieve the applicant's stated objectives. Paul 18-95