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HomeMy WebLinkAbout18 - East Ocean Front to Allow EncroachmentsQ SEW Pp�T CITY OF s NEWPORT BEACH C'94IF09 City Council Staff Report July 25, 2017 Agenda Item No. 18 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director - 949-644-3232, kbrandt@newportbeachca.gov PREPARED BY: Brenda Wisneski, Deputy Community Development Director — bwisneski(o�newportbeachca.gov PHONE: 949-949-644-3297 TITLE: Amendment to Local Coastal Program to Establish a Comprehensive Program for Properties Along East Ocean Front to Allow Encroachments and to Remove Unpermitted Development Beyond the Encroachment Area (PA2013-057) On July 26, 2016, the City Council approved amendments to the Coastal Land Use Plan and City Council Policy L-12 creating the East Ocean Front Encroachment and Removal and Replacement Program (Encroachment Program). An amendment to the Implementation Plan component of the City's certified Local Coastal Program is also needed. The Coastal Commission will need to review and adopt the proposed changes to the Coastal Land Use Plan and Implementation Plan, as well as issue a coastal development permit, before the City can implement the Encroachment Program. RECOMMENDATIONS: a) Conduct a public hearing; b) Determine that the Local Coastal Program amendment, per California Public Resources Code Section 21080.9 and California Environmental Quality Act ("CEQA") Regulation Section 15265, exempts local governments from the requirements of preparing an environmental impact report or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program; c) Adopt Resolution No. 2017-50, A Resolution of the City Council of the City of Newport Beach, California, Authorizing the Submittal of Local Coastal Program Amendment No. LC2013-002 Establishing the East Ocean Front Encroachment and Removal and Replacement Program; and d) Authorize staff to submit the Local Coastal Program Amendment and the East Ocean Front Comprehensive Encroachment and Removal and Replacement Program to the California Coastal Commission for review and action. 18-1 East Ocean Front Encroachment Program July 25, 2017 Page 2 FUNDING REQUIREMENTS: There are funding implications associated with the ultimate implementation of the encroachment program within the City's right-of-way adjacent to East Ocean Front and the removal and replacement of unpermitted development beyond the City's 15 -foot right- of-way. These costs were detailed in the City Council's July 26, 2016, staff report (Attachment B). In summary, the City will implement the Removal and Replacement Plan and recover all or a portion of the estimated $250,000 cost from the appropriate adjacent property owners. Additionally, the City will use the fees collected through the encroachment program to further enhance public access to the Balboa Peninsula and West Newport ocean beaches. DISCUSSION: Location The proposed comprehensive program includes the 66 properties located on East Ocean Front, from and including 1400 East Ocean Front to Channel Road (at the Wedge) in the Peninsula Point community. Many of these properties have associated encroachments on the adjacent public property that include landscaping, fences, irrigation, and hardscape, and the improvements have existed beyond the private property lines for quite some time. The extent of the improvements vary, some of which include minimal landscaping that is only a few feet beyond the property line, while others are quite extensive and extend up to 65 feet beyond the property line. VICINITY MAP The area proposed for the encroachment plan is limited to the City's which parallels the single-family homes on East Ocean Front improvements and replacement with appropriate materials would areas beyond 15 feet. 15 -foot right-of-way, Removal of the be required for the 18-2 East Ocean Front Encroachment Program July 25, 2017 Page 3 Background In 2012, several property owners along East Ocean Front, in the area from E Street to Channel Road, received Notices of Violation from the California Coastal Commission regarding unpermitted development on public properties. A comprehensive encroachment program, similar to the program in place for West Ocean Front, could remedy this issue for unpermitted development in the City's 15 -foot right-of-way. Removal of unpermitted improvements and replacement with appropriate materials would be required for the areas beyond the City's15-foot right-of-way. On January 13, 2017, the California Coastal Commission certified the City's Local Coastal Program (LCP). The LCP consists of two documents, the Coastal Land Use Plan (LUP) and Coastal Implementation Plan (IP). On July 26, 2016, the City Council amended the LUP and created the Encroachment Program (see Attachment D). Since the Council's action occurred during the time the Coastal Commission was considering the draft IP and certification of the City's LCP, staff has waited until this time to submit an application to the Coastal Commission. The draft resolution (Attachment A) includes the LUP amendment, as approved on July 26, 2016, and the proposed IP amendment. Together, the amendments comprise the Local Coastal Program amendment. The Planning Commission reviewed the proposed amendment on May 4, 2017, and recommended approval. Summary This program provides a comprehensive approach that allows the residents of the East Ocean Front area limited use of the City's 15 -foot right-of-way, similar to the West Newport encroachment program. Additionally, the program includes a comprehensive plan for the City to remove and replace the unpermitted development on the public beach. The City will use the encroachment fees collected through this plan to further enhance public access to the Balboa Peninsula and West Newport ocean beaches. The proposed program cannot be implemented until the Coastal Commission adopts the Local Coastal Program Amendment and issues the appropriate coastal permit. ENVIRONMENTAL REVIEW: Staff recommends the City Council find that California Public Resources Code Section 21080.9 and California Environmental Quality Act ("CEQA") Regulation Section 15265 exempt local governments from the requirements of preparing an environmental impact report ("EIR") or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program ("LCP"). Instead, certification of an LCP by the Coastal Commission is subject to the requirements of CEQA. The Coastal Commission's regulatory program involving the preparation, approval and certification of local coastal programs has been certified by the Natural Resources Agency under Public Resources Code Section 21080.5 as the functional equivalent of CEQA review. 18-3 East Ocean Front Encroachment Program July 25, 2017 Page 4 As a result of this certification, the Coastal Commission is exempt from the requirement of preparing an EIR in connection with an LCP. Further, the proposed amendment conforms with the policies in Chapter 3 of the Coastal Act and the proposed Amendment will not result in significant adverse environmental impacts within the meaning of CEQA. NOTICING: Notice of this review was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. In addition, a representative of many of the affected homeowners was notified for the subject hearing. Noticing was also conducted in compliance with California Public Resources Code Section 30514 for the processing of amendments to the CLUP. ATTACHMENTS: Attachment A — Draft Resolution Attachment B — July 26, 2016 City Council Staff report (without Attachments) Attachment C — Redlined Version of Amendments Attachment D — East Ocean Front Encroachment and Removal and Replacement Program (without Attachment) Attachment A Draft Resolution 18-5 RESOLUTION NO. 2017-50 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE SUBMITTAL OF LOCAL COASTAL PROGRAM AMENDMENT NO. LC2013-002 ESTABLISHING THE EAST OCEAN FRONT ENCROACHMENT AND REMOVAL AND REPLACEMENT PROGRAM TO THE CALIFORNIA COASTAL COMMISSION (PA2013-057) WHEREAS, Section 30500 of the Public Resources Code requires each county and city to prepare a Local Coastal Program (LCP) for that portion of the coastal zone within its jurisdiction; WHEREAS, the California Coastal Commission effectively certified the City of Newport Beach's (City) LCP on January 13, 2017, and the City assumed coastal development permit -issuing authority on January 30, 2017. The LCP is comprised of the Coastal Land Use Plan (LUP) and Coastal Implementation Plan (IP); WHEREAS, LCP Amendment No. LC2013-002 creates a comprehensive encroachment program, similar to the program in place for West Ocean Front, which remedies the issue of unpermitted development in the City's fee owned15-foot right-of- way parallel to East Ocean Front; WHEREAS, removal of unpermitted improvements and replacement with appropriate materials is required for areas beyond the City's fee owned 15 -foot right-of- way and in tidelands areas; WHEREAS, a public hearing was held by the Planning Commission of the City of Newport Beach on April 9, 2015, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code (NBMC) and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. At the conclusion of the public hearing, the Planning Commission recommended the City Council approve the LUP amendment establishing the East Ocean Front Encroachment and Removal and Replacement Program; WHEREAS, a public hearing was held by the City Council of the City of Newport Beach on July 26, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code (NBMC) and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing. At the conclusion of the public hearing, the City Council approved the LUP amendment establishing the East Ocean Front Encroachment and Removal and Replacement Program; WHEREAS, a public hearing was held by the Planning Commission of the City of Newport Beach on May 4, 2017, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public I Resolution No. 2017 - Page 2 of 4 hearing was given in accordance with the NBMC and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. At the conclusion of the public hearing, the Planning Commission voted to recommend City Council approval of LCP Amendment No. LC2013-002 which, as of January 13, 2016 encompasses, the LUP and IP; WHEREAS, a public hearing was held by the City Council on July 25, 2017, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; and WHEREAS, pursuant to Section 13515 of the California Code of Regulations, review drafts of LCP Amendment No. LC2013-002 were made available and a notice of the availability was distributed a minimum of six weeks prior the City Council public hearing. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby authorize City staff to submit LCP Amendment No. LC2013-002 to the California Coastal Commission for review and approval, as attached in Exhibit A, and incorporated herein by reference. Section 2: LCP Amendment No. LC2013-002 shall not become effective until approval by the California Coastal Commission and adoption, including any modifications suggested by the California Coastal Commission, by resolution(s) and/or ordinance(s) of the City Council of the City of Newport Beach. Section 4: The LCP including the proposed amendment will be carried out fully in conformity with the California Coastal Act. Section 5: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 6: 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 be declared invalid or unconstitutional. Section 7: Pursuant to the authority and criteria contained in the California Environmental Quality Act (CEQA), LCP Amendment No. LC2013-002 is statutorily exempt from CEQA pursuant to Section 15265(a)(1) of the California Code of 18-7 Resolution No. 2017 - Page 3 of 4 Regulations, Title 14, and Chapter 3 of the Coastal Act. Section 15265(a)(1), which exempts local governments from the requirements of preparing an environmental impact report or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program. Section 8: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 25th day of July, 2017. Kevin Muldoon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATT OR OFFICE Aaron C. City Attorney Attachment: LCP Amendment No. LC2013-002 18-8 EXHIBIT A Local Coastal Program Amendment (LC2O13-02) City of Newport Beach Coastal Land Use Plan Proposed Amendments to Chapter 3.0 Public Access and Recreation Section 3.1.3 Beach Encroachments Policies 3.1.3-3 through 3.1.3-9 3.1.3-3. Limit the maximum oceanward extent of encroachments to the following encroachment zones: A. Santa Ana River to 52nd Street. A maximum of 15 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. B. 52nd Street to 36th Street. A maximum of 10 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. C. 36th Street to E Street. Between A Street and a point 250 feet southeast of E Street, up to the inland edge of the Oceanfront Boardwalk (7 to 8 feet oceanward of the rear property line) and within an oceanward prolongation of the side property lines. D. E Street to 107 G Street. No encroachments are permitted from a point 250 feet southeast of E Street to and including 107 G Street, with the exception of landscaping trees existing prior to October 22, 1991 and groundcover. E. 1400 East Ocean Front to Channel Road. A maximum of 15 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. 3.1.3-4. Limit encroachments within encroachment zones as follows: A. Prohibit any structural, electrical, plumbing or other improvements that require issuance of a building permit. B. Prohibit pressurized irrigation lines and valves. C. Prohibit any object that exceeds 36 inches in height, with the exception of landscaping. D. Prohibit any encroachments that impact public access, recreation, views and/or coastal resources. E. Require landscaping to be designed and maintained to avoid impacts to public access and views. F. Restrict landscaping in dune habitat areas to native vegetation. 3.1.3-5. Require annual renewal of encroachment permits and a fee. 18-9 3.1.3-6. Require encroachment permits to specify that the property owner waives and gives up any right to contest the validity of the oceanfront street easement, and that the encroachment permit is revocable, without cause, if the City proposes to construct public improvements within that zone. 3.1.3-7. Require encroachment permits to specify that the construction of any seawall, revetment or other erosion control devices, if necessary, shall occur within, or as close as feasible to, private property. 3.1.3-8. Incorporate into the implementation plan regulations specifying the types of improvements permitted within encroachment zones, a prohibition on improvements that could impair or restrict public access or views, procedures for the encroachment permit applications, City administration of the policy, and other appropriate provisions. 3.1.3-9. As mitigation for any impact on beach access resulting from the encroachments: A. Maintain 33 street ends between 36th Street and Summit to provide an average of 2 parking spaces per street, and additional spaces where feasible. B. Meter West Newport street end parking spaces in the same manner as the West Newport Park in order to encourage public use of the spaces. C. Maintain a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end and at least one other handicapped parking space at one other West Newport street end. D. Require a minimum of 85 percent of the fees generated by encroachments will be used for the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, transportation alternatives, restrooms, vertical or lateral walkways along the beach and similar projects. 18-10 City of Newport Beach Coastal Implementation Plan Proposed Amendments to Appendix C Appendix C — Oceanfront Encroachment Policy Guidelines The Oceanfront Encroachment Policy established specific restrictions and conditions on the installation of private improvements in the public right of way along the oceanfront from the Santa Ana River Channel to Channel Road. The policy included a mitigation program involving the reconstruction of 33 unimproved street ends between 3611 Street and Summit Street to provide additional parking and improved public access. In 2002, the final five street ends were reconstructed. Pursuant to the mitigation program, a minimum of 85 percent of the encroachment fees will be used for the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects. The Oceanfront Encroachment Policy was originally approved by the Coastal Commission on June 11, 1991 and finalized by the City Council through the adoption of Resolution No. 91-80 on July 11, 1991. These restrictions and conditions were incorporated into the Coastal Land Use Plan, which was approved by the Coastal Commission on October 13, 2005, adopted by the City Council on December 13, 2005, and became effective on February 8, 2006. These guidelines are intended to implement the Oceanfront Encroachment Policy by establishing a procedure for approval of permitted encroachments, removal of prohibited encroachments, limiting the extent of encroachments, and clarification of improvements permitted within each encroachment zone. A. Definitions. 1. For the purpose of this Section, the following words and phrases shall be defined as specified below: a. Existing encroachment shall mean any encroachment or improvement installed or constructed before May 31, 1992. b. New encroachment shall mean any encroachment or improvement installed or constructed after May 31, 1992. C. Improvements or Encroachments shall mean any object, thing or landscaping: within or oceanward of any encroachment zone described in this policy; ii. within or oceanward of the north edge of the Oceanfront Boardwalk, between 36th Street and A Street; or 18-11 iii. oceanward of any residential parcel from a point 250 feet southeast of E Street to Channel Road. d. Encroachment permit shall mean the permit issued by the Public Works Director authorizing the maintenance or installation of encroachments or improvements within the encroachment zones described in this policy. e. Application shall mean any application for an encroachment permit pursuant to the provisions of this policy and the land use plan of the local coastal program. f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the concrete walkway along the oceanside of ocean front residential properties between 36th Street and a point approximately 250 feet southeast of E Street. B. Encroachment Zones. Subject to compliance with the provisions of this policy: The owner of any ocean front residential parcel between the Santa Ana River and 52nd Street may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 2. The owner of any oceanfront residential parcel between 52nd Street and 36th Street may install improvements on the ocean side of the parcel up to a maximum of 10 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 3. The owner of any oceanfront residential parcel between A Street and a point 250 feet southeast of E Street may install improvements up to the inland edge of the Oceanfront Boardwalk and within an oceanward prolongation of the property lines on the side of the parcel. 4. The owner of any oceanfront residential parcel between and including 1400 East Ocean Front and Channel Road may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. C. Prohibited Encroachments. Encroachments and improvements are prohibited oceanward of private property between 36th Street and A Street. 2. Encroachments and improvements are prohibited oceanward of any ocean front parcel from a point 250 feet southeast of E Street to and including 107 G Street, 18-12 with the exception of landscaping trees existing prior to October 22, 1991, and groundcover. 3. Any existing encroachment or improvement for which no application has been filed on or before May 31, 1992, and any new encroachment or improvement for which no application is filed prior to installation is prohibited. 4. Any new or existing encroachment or improvement which, on or after July 1, 1992, is not in conformance with this policy is prohibited. 5. Any new or existing encroachment or improvement for which there is no valid permit. D. Permitted Encroachment/Improvements. Subject to compliance with the provisions of this policy, the following improvements are permitted within the encroachment zones described in Section B: 1. Patio slabs or decks no higher than six inches above existing natural grade. The determination of grade will be made as provided in Section J. 2. Walls and/or fences less than 36 inches in height above existing natural grade. The determination of grade will be made as provided in Section J. 3. Existing improvements which were constructed in conjunction with development for which a building permit was issued may be approved by the Public Works Director upon a finding that the improvement is consistent with or is modified to be consistent with the standards of this chapter. 4. . Where a shoreline protective device per Section 21.30.030(Natural Landform and Shoreline Protection) cannot be sited within private property, it may be sited as close as feasible to private property. In no event shall a shoreline protective device be constructed to protect a private encroachment authorized on a public right-of-way. E. Prohibited Improvements. 1. Except for perimeter walls and/or fences less than 36 inches in height, any structural, electrical, plumbing or other improvements which require issuance of a building permit. 2. Pressurized irrigation lines and valves. 3. Any object which exceeds 36 inches in height, exclusive of the following: a. trees planted by the City of Newport Beach or private parties pursuant to written policy of the City Council of the City of Newport Beach; or 18-13 b. any landscaping or vegetation within the encroachment zone subject to the following: The vegetation or landscaping was installed prior to the first effective date of this policy; ii. The vegetation or landscaping does not block views from adjoining property; iii. The vegetation or landscaping does not function as a hedge as defined in Title 20 of the Newport Beach Municipal Code; and iv. The vegetation or landscaping does not impair or affect the health, safety or welfare of persons using the oceanfront Walk, nearby property owners, or residents of the area. V. New plant materials that have not been approved by a coastal development permit issued by the Coastal Commission. Notwithstanding the provisions of this Subparagraph, the City reserves the right to reduce the height of any existing landscaping at any time, upon a determination by the Public Works Director, and after notice to the owner of property on which the vegetation or landscaping exists, that a reduction in height is necessary or appropriate given the purposes of this policy. F. Permit Process. 1. An encroachment permit shall be required for all permitted improvements. The application shall be filed with the Public Works Department on a form provided by the City. The application shall be signed by the owner of the property, or an agent of the owner if the application is accompanied by a document, signed by the owner, granting the agent the power to act for the owner with respect to the property. The application shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all proposed improvements and objects within the encroachment zone. Applications with incomplete information and/or inadequate drawings will not be accepted. 2. Applications for existing encroachments must be filed on or before May 31, 1992. Applications for new encroachments shall be filed before any encroachment or improvement is installed. No new encroachments or improvements shall be installed without an encroachment permit. 3. Upon receipt of the application, the Public Works Director shall, within fifteen (15) days after the date of filing, determine if the application is complete or if additional information is necessary or appropriate to an evaluation of the application. In the event the application is incomplete or additional information is necessary, written 18-14 notice to that effect shall be sent to the property owner within twenty (20) days after the application is filed. 4. With respect to applications for existing encroachments, an inspection shall be conducted of all improvements within the encroachment zone before a permit is issued by the Public Works Director. With respect to applications for new encroachments, an on site inspection will be conducted after installation of the improvements to insure conformity with provisions of the permit and this Section. 5. The Public Works Director shall approve the permit upon a determination that the encroachments proposed to be constructed, or to remain, are permitted by this Section, the applicant has agreed to abide by all of the terms and conditions imposed on the permit, and the applicant has paid all fees. 6. The Public Works Director shall have the authority to condition his/her approval of the encroachment permit as necessary or appropriate to insure compliance with the provisions of this Section. The Public Works Director shall have the specific authority to condition approval of an encroachment permit on the removal of nonconforming improvements within a specified period of time. 7. The Public Works Director shall notify the applicant of his/her decision within sixty (60) days after the application is filed and the decision of the Public Works Director shall be final. G. Term. 1. Except as provided in this Section, annual encroachment permits shall expire on June 30 of each calendar year. 2. Encroachment permits issued prior to June 30, 1992 shall expire June 30, 1993. H. Renewal. 1. Annual renewal fees shall be due and payable on or before May 31 preceeding the annual term of the permit. For example: Annual renewal fees due on May 31, 2001, are for the period July 1, 2001 through June 30, 2002. 2. The Public Works Director shall approve annual renewal if: a. The applicant has complied with all standard and special conditions of approval; b. The applicant has constructed only those improvements and encroachments authorized by the permit; C. The applicant is in compliance with all of the provisions of this policy. 18-15 Standard Conditions. 1. The Public Works Director shall impose standard conditions of approval on all encroachment permits. These standard conditions shall include, without limitation, the following: a. The obligation of permittee to comply with all of the provisions of this policy and all conditions imposed upon the permit. b. The right of the Public Works Director to revoke any permit after notice and hearing if the permittee is in violation of this policy or conditions to the permit. C. The right of the City to summarily abate encroachments or improvements which are prohibited by this policy or conditions on the permit upon ten (10) day's written notice. d. The obligation of permittee to pay all costs incurred by the City in summarily abating any prohibited improvement. e. The obligation of permittee to defend, indemnify and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment. f. Permittee's waiver of any right to contest the City's street and public access easement over property within or oceanward of the encroachment zones. g. The right of the Public Works Director or his designee to inspect improvements within the encroachment zone without notice to the permittee. h. The right of the City to cancel or modify any, or all, encroachment permit(s) upon a determination by the City Council to construct a public facility or improvement within or adjacent to the encroachment zone. 2. The construction of any seawall, revetment or other device necessary to control erosion, shall occur as close to private property as feasible. Erosion control devices shall not be placed or installed closer to the ocean to protect improvements or encroachments. 3. The Public Works Director may impose additional standard conditions necessary or appropriate to insure compliance with, or facilitate City administration of this policy. J. Determination of Grade. 1. The nature of the beach makes a precise determination of grade difficult. The level of the sand changes with wind, storm, and tidal conditions. The Public Works 18-16 Director shall determine the level from which the height of encroachments and improvements is to be measured. In making this determination, the Public Works Director shall consider the following criteria: a. The existing natural grade in the area; d. Any data on the historic elevation of the beach in that area. K. Annual Fee. 1. The fees based on the depths of encroachment shown below shall be established by resolution of the City Council and paid annually as a condition of the issuance of encroachment permits: Depth of Encroachment 0 - 5 feet 5 - 7 1/2 feet 7 1/2 - 10 feet 10 - 15 feet 2. For purposes of determining fees, the average depth of the encroachment shall be used. However, the maximum depth shall not exceed the limitations specified in Section B. A dimensional tolerance not to exceed 12 inches may be allowed in determining the appropriate fee to be paid by persons with existing encroachments. 3. The annual fee shall be due and payable upon submittal of the application for the initial encroachment permit. Renewal fees shall be due May 31 of each year. The fee shall be considered delinquent thirty (30) days thereafter. Delinquent fees shall be established by resolution of the City Council. 4. The annual fee shall be used to defray City costs of administration, incidental costs of improvements on street ends along the oceanfront, and incidental costs to enhance public access and use of the ocean beaches. At least eighty-five (85%) percent of the fees shall be used by the City to implement the mitigation plan as required by Amendment No. 23 to the Land Use Plan of the City's Local Coastal Program. (See Section M.) L. Violations/Remedy. 1. The City shall, in addition to any right or remedy provided by law, have the right to do any or all of the following in the event a permittee is in violation of the provisions of this policy or any condition to the permit, or any encroachment or improvement violates the provisions of this policy: 18-17 a. Revoke the permit after giving the permittee notice and an opportunity to be heard upon a determination that there is substantial evidence to support a violation of this policy. The Public Works Director shall establish the specific procedures designed to insure that permittee receives due process of law. b. Summarily abate any encroachment or improvement violative of this policy after giving the permittee or property owner ten (10) day's written notice of its intention to do so in the event the permittee or property owner fails to remove the encroachment or improvement. The permittee or property owner shall pay all costs incurred by the City in summarily abating the encroachment or improvement. The determination of the Public Works Director with respect to abatement shall be final. M. Mitigation Plan. To mitigate any impact on beach access resulting from the encroachments, the City shall: 1. Reconstruct thirty-three unimproved street ends between 36th Street and Summit to provide additional parking and approved access in accordance with the following: a. The reconstruction shall provide a minimum, where feasible, of two parking spaces per street end and shall proceed in substantial conformance with the standard drawing, attached as exhibit "A." b. The City shall use at least eighty-five percent (85%) of the fees to fund reconstruction of street ends until all have been improved. The City will use its best efforts to improve three or more street ends per year (except during the year when vertical handicapped access is constructed), and anticipates that funding will be adequate to do so. C. West Newport street -end parking spaces shall be metered in the same manner as the West Newport Park in order to encourage public use of the spaces. 2. Within three years after Council approval of this Resolution, City shall construct a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end. City shall designate at least one other handicapped space at one of the first three street ends improved. 3. Subsequent to the reconstruction of all West Newport street ends, at least eighty- five percent (85%) of the fees generated by encroachments will be used for the construction of improvements which directly benefit the beach going public such 18-18 as parking spaces, transportation alternatives, rest rooms, vertical or lateral walkways along the beach and similar projects. 18-19 Attachment B July 26, 2016 City Council Staff Report (without Attachments) 18-20 Q �tiW PpR� CITY O Vno"ACH o"" Y 'WP0"4k0I Ot °q,FOR�P City Council Staff Report July 26, 2016 Agenda Item No. 16 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director - 949-644-3232, kbrandt@newportbeachca.gov PREPARED BY: Brenda Wisneski, Deputy Community Development Director — bwisneski@newportbeachca.gov PHONE: 949-949-644-3297 TITLE: Amendments to Coastal Land Use Plan and Policy L-12 and the Establishment of a Comprehensive Program for Properties Along East Ocean . Front to Allow Encroachments and to Remove Unpermitted Development Beyond the Encroachment Area (PA2013-057) ABSTRACT: In 2012, several property owners along East Ocean Front, in the area from E Street to Channel Road, received Notices of Violation from the California Coastal Commission regarding unpermitted development on public properties. A comprehensive encroachment program, similar to the program in place for West Ocean Front, could remedy this issue for unpermitted development in the City's 15 -foot right-of-way. Removal of unpermitted improvements and replacement with appropriate materials would be required for the areas beyond the City's15-foot right-of-way. In order for City Council to approve the proposed program, appropriate amendments to the City of Newport Beach Coastal Land Use Plan and City Council Policy L-12 are required. RECOMMENDATIONS: a) Conduct a public hearing; b) Determine that the Coastal Land Use Plan amendment, per California Public Resources Code Section 21080.9 and California Environmental Quality Act ("CEQA") Regulation Section 15265, exempts local governments from the requirements of preparing an environmental impact report or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program; 18-21 East Ocean Front Comprehensive Program July 26, 2016 Page 2 c) Determine that the Council Policy L-12 Amendment and the East Ocean Front Comprehensive Encroachment and Removal and Replacement Program are exempt from CEQA pursuant to Section 15303 New Construction or Conversion of Small Structures of the CEQA Guidelines; d) Adopt Resolution No. 2016-92, A Resolution of the City Council of the City of Newport Beach, California, Approving Coastal Land Use Plan Amendment No. LC2013-002, Council Policy L-12 Amendment, and the East Ocean Front Comprehensive Encroachment and Removal and Replacement Program (PA2013- 057); and e) Authorize staff to submit the Coastal Land Use Plan Amendment and the East Ocean Front Comprehensive Encroachment and Removal and Replacement Program to the California Coastal Commission for review and action. FUNDING REQUIREMENTS: There are funding implications associated with the ultimate implementation of the encroachment program within the City's right-of-way adjacent to East Ocean Front and the removal and replacement of unpermitted development beyond the City's 15 -foot right-of-way. These costs are discussed below in conjunction with these two program components. DISCUSSION: Location The proposed comprehensive program includes the 66 properties located on East Ocean Front, from and including 1400 East Ocean Front to Channel Road (at the Wedge) in the Peninsula Point community. Many of these properties have associated encroachments on the adjacent public property that include landscaping, fences, irrigation, and hardscape, and the improvements have existed beyond the private property lines for quite some time. The extent of the improvements vary, some of which include minimal landscaping that is only a few feet beyond the property line, while others are quite extensive and extend up to 65 feet beyond the property line. 18-22 East Ocean Front Comprehensive Program July 26, 2016 Page 3 VICINITY MAP The area proposed for the encroachment plan is limited to the City's 15 -foot right of way which parallels the single family homes on East Ocean Front. Removal of the improvements and replacement with appropriate materials would be required for the areas beyond 15 feet. Background In 2011, the California Coastal Commission (Commission) was notified by an outside party of the encroachments. In 2012, after concluding their investigation, the Commission issued Notices of Violation (NOV) to fifteen property owners. The NOVs state that the encroachments are on City property and are inconsistent with both the Coastal Act and the City's Coastal Land Use Plan, and therefore need to be removed and the beach restored for public use. Commission staff has indicated to staff that they have identified fifty-eight properties with encroachment violations. Staff facilitated a meeting with the residents and Commission staff to explore potential solutions. However, the number of residents with varying circumstances and positions, as well as the limited flexibility offered by Commission staff, made this approach cumbersome. Staff also met with Commission staff to advocate for the residents' perspective. Commission staff expressed their desire for a comprehensive solution to the issue. While the City is not a party to the subject NOV(s), it is apparent that the best chance for a comprehensive solution requires the City's involvement. To that end, an encroachment plan, similar to the program applied to West Ocean Front, could remedy this issue for the 15 -foot right-of-way. This program allows limited 18-23 East Ocean Front Comprehensive Program July 26, 2016 Page 4 improvements in the City's right-of-way pursuant to the approval of an encroachment permit and the payment of an annual fee. On February 11, 2013, the City Council conducted a study session to consider the issue, and at the regular meeting, City Council initiated an amendment to the Coastal Land Use Plan (CLUP) Policy 3.1.3 Beach Encroachments and City Council Policy L-12 for purposes of establishing an encroachment plan for East Ocean Front. On April 9, 2015, the Planning Commission reviewed the CLUP amendment and recommended the City Council approve the amendment by adoption of a resolution (Attachment B). However, since the Planning Commission's action on the CLUP, staff determined the properties located at 1317, 1319, 1320, 1322, 1324, 1350, 1354, 1358 Balboa Boulevard and 107 G Street were located adjacent to public tidelands, and not the City's right-of-way, as originally thought. Therefore, these properties cannot be included in the proposed encroachment program, and staff has modified the recommended CLUP language amendment to reflect this determination. Fortunately, unpermitted development in this area appears limited, but will require additional evaluation. East Ocean Front Comprehensive Encroachment and Removal/Replacement Program The proposed comprehensive program includes two components (Attachment A, Exhibit A-3): The encroachment plan that allows limited improvements within the City's 15 -foot right-of-way in conjunction with obtaining an encroachment permit and paying an annual fee, to be used for other visitor -serving uses. The removal and replacement plan for the unpermitted development beyond the City's public right-of-way. Encroachment Plan Currently, CLUP Policy 3.1.3 Beach Encroachments establishes a policy and mitigation program related to private improvements along the City's oceanfront right-of-way from the Santa Ana River to Channel Road. Specifically, the policy establishes four encroachment zones, permitted encroachments in each zone, permit and fee requirements, and the use of the fees for mitigation related to public beach access. The encroachment zone defined as "E Street to Channel Road" currently prohibits any type of development, with the exception of trees and ground cover. The proposed amendment will apply the same regulations to all the identified zones where there is an oceanfront public right-of-way adjacent to the private property. The proposed amendment language identifies "1400 East Ocean Front to Channel Road" as an encroachment zone where the same limited improvements are allowed (Attachment A, Exhibit A-1 and Attachment D). 18-24 East Ocean Front Comprehensive Program July 26, 2016 Page 5 Allowed Improvements: The improvements that would be allowed are currently specified in the CLUP in Policy 3.1.3-4- A. Prohibit any structural, electrical, plumbing or other improvements that require issuance of a building permit. B. Prohibit pressurized irrigation lines and valves. C. Prohibit any object that exceeds 36 inches in height, with the exception of landscaping. D. Prohibit any encroachments that impact public access, recreation, views and/or coastal resources. E. Require landscaping to be designed and maintained to avoid impacts to public access and views. F. Restrict landscaping in dune habitat areas to native vegetation. Encroachment Permit and Annual Fee: In conjunction with a property owner obtaining an encroachment permit, an annual encroachment fee would also be required. Council Policy L-12 establishes the permit requirement and establishes that the fees are based on the average depths of the encroachment. The depths are: 0-5 feet 7-7.5 feet 7.5- 10 feet 10-15 feet The necessary amendments to Council Policy L-12 are contained in Attachment A, Exhibit A-2 and the redlined version is in Attachment D. Fee Establishment: In order to establish an encroachment fee for this area, a market study was conducted in November 2015 to determine encroachment rates reflective of open market value for the project area in accordance with Council Policy F-7, (Attachments C). The study concluded that the annual fee for Peninsula Point would be $6.50 per square foot of encroachment. As an example of the fee range, for Peninsula Point properties, with a lot width of 45 feet, the annual fee would range from $728 to $3,656 depending on the depth of the encroachment. As a comparison, the existing annual fees for the West Newport Encroachment Program range from $345 to $1,037 per property. The West Newport program was initially established in Fiscal Year 1991-92, and the fees have been increased annually based upon the consumer price index. In Fiscal Year 2015-16, the City collected $220,635 in annual fees for West Newport from 277 participating properties. Staff does recommend that the City Council adopt a fee for East Ocean Front that is consistent with Council Policy F-7, but staff does not recommend adopting the fee at this time. Rather staff recommends that the fee be adopted after the program receives all necessary Coastal Commission approvals. Staff expects a lengthy timeframe to 18-25 East Ocean Front Comprehensive Program July 26, 2016 Page 6 process the application because a CLUP amendment is required, and depending on the Commission's action, it may be necessary to update the market study or make adjustments in assumptions. The fees shall be set at fair market value, using one or more appraisals. Public Beach Access Improvements: The CLUP requires that the annual encroachment fees be used to improve public beach access. The mitigation program included in Policy 3.1.3-9 has generally been completed. Therefore, staff is recommending that "transportation alternatives" be added to Policy 3.1.3-9 as an additional method to improve beach access to the West Newport/Balboa Peninsula area. These new transportation alternative amenities could include, but are not limited to: 1. A free shuttle program for Balboa Peninsula. The City has received a grant from the Orange County Transportation Authority and intends to have the program operating in the summer of 2017. The encroachment fees could also serve as funding a source for the long-term operation of the shuttle service. 2. Improving the boardwalk transition at E Street to Ocean Boulevard. 3. Improving pedestrian and bicycle access in the McFadden Square area,- 4. rea,4. Providing additional parking on Balboa Peninsula. This could include increased parking on the Peninsula, such as at the Palm Street lot, or at an off-site location that is tied to the shuttle system 5. Improving the safety of the existing boardwalk for all types of users. 6. Improving ADA access to sandy beach areas. Additionally, the fees could be used to improve beach access by increasing lifeguard hours and presence at the Balboa Peninsula Point beaches, including the Wedge. The use of the encroachment fees for any of the improvements listed above would be subject to appropriate public review and permits, including a coastal development permit if required. Removal and Replacement Plan In respect to the unpermitted development beyond the City's right-of-way, the City retained a biologist to assess the encroachments and to develop a removal plan. The biologist conducted a parcel -level inventory of the unpermitted development on the public beach (Attachment A, Exhibit A-3). The proposed plan would remove the ornamental improvements and invasive vegetation in stages over a three-year period, while encouraging existing native coastal strand vegetation and introducing appropriate groundcover (such as dunes grasses versus non-native iceplant) in the removal areas, so that large areas of sand are not made unstable at any time during the process. The plan also includes a three-year maintenance and monitoring program. 18-26 East Ocean Front Comprehensive Program July 26, 2016 Page 7 Plan Costs: Appendix A of the plan includes a cost estimate of approximately $250,000 for removing the unpermitted development beyond the 15 -foot encroachment area and the three-year monitoring effort. The Plan also provides the costs for each affected parcel which range from less than $100 to over $5,000. To maintain a comprehensive and integrated approach, staff recommends that the City implement the Removal and Replacement Plan and recover all or a portion of the costs from the appropriate adjacent property owners. The specific costs can be determined at the time the City moves forward with the plan. Summary This program provides a comprehensive approach that allows the residents of the East Ocean Front area limited use of the City's 15 -foot right-of-way that is similar to what is currently allowed in West Newport, while also providing a comprehensive plan for the City to remove and replace the unpermitted development on the public beach. The City will use the encroachment fees collected through this plan to further enhance public access to the Balboa Peninsula and West Newport ocean beaches. The proposed program cannot be implemented until the Coastal Commission approval the Coastal Land Use Plan Amendment is final and the appropriate coastal permit for the program is issued. The Council Policy L-12 amendment will become effective once the Coastal Land Use Plan approval is final. ENVIRONMENTAL REVIEW: Staff recommends the City Council find that California Public Resources Code Section 21080.9 and California Environmental Quality Act ("CEQA") Regulation Section 15265 exempt local governments from the requirements of preparing an environmental impact report ("EIR") or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program ("LCP"). Instead, certification of an LCP by the Coastal Commission is subject to the requirements of CEQA. The Coastal Commission's regulatory program involving the preparation, approval and certification of local coastal programs has been certified by the Natural Resources Agency under Public Resources Code Section 21080.5 as the functional equivalent of CEQA review. As a result of this certification, the Coastal Commission is exempt from the requirement of preparing an EIR in connection with an LCP. Further, the Amendment to the City's CLUP conforms with the policies in Chapter 3 of the Coastal Act and the proposed Amendment will not result in significant adverse environmental impacts within the meaning of CEQA. Furthermore, staff recommends that the City Council find that the Council Policy L-12 Amendment and the proposed East Ocean Front Comprehensive Encroachment and Removal and Replacement Program are exempt from CEQA pursuant to Section 15303 New Construction or Conversion of Small Structures of the CEQA Guidelines. 18-27 East Ocean Front Comprehensive Program July 26, 2016 Page 8 NOTICING: Notice of this review was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. In addition, a representative of many of the affected homeowners was notified for the subject hearing. Noticing was also conducted in compliance with California Public Resources Code Section 30514 for the processing of amendments to the CLUP. ATTACHMENTS: Attachment A — Draft Resolution Attachment B — Planning Commission Resolution No. 1978 and Meeting Minutes Attachment C — Council Policy F-7 Attachment D — Redlined Version of Amendments Attachment C Redlined Version of Amendments 18-29 Local Coastal Program Amendment (LC2O13-02) City of Newport Beach Coastal Land Use Plan Proposed Amendments to Chapter 3.0 Public Access and Recreation Section 3.1.3 Beach Encroachments Policies 3.1.3-3 through 3.1.3-9 The proposed amendments are indicated in redline below: 3.1.3-3. Limit the maximum oceanward extent of encroachments to the following encroachment zones: A. Santa Ana River to 52nd Street. A maximum of 15 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. B. 52nd Street to 36th Street. A maximum of 10 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. C. 36th Street to E Street. Between A Street and a point 250 feet southeast of E Street, up to the inland edge of the Oceanfront Boardwalk (7 to 8 feet oceanward of the rear property line) and within an oceanward prolongation of the side property lines. D. E Street to 107 G Street. No encroachments are permitted from a point 250 feet southeast of E Street to and including 107 G Street ChaRne' Rea4, with the exception of landscaping trees existing prior to October 22, 1991 and groundcover. E. 1400 East Ocean Front to Channel Road. A maximum of 15 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. 3.1.3-4. Limit encroachments within encroachment zones as follows: A. Prohibit any structural, electrical, plumbing or other improvements that require issuance of a building permit. B. Prohibit pressurized irrigation lines and valves. C. Prohibit any object that exceeds 36 inches in height, with the exception of landscaping. D. Prohibit any encroachments that impact public access, recreation, views and/or coastal resources. E. Require landscaping to be designed and maintained to avoid impacts to public access and views. F. Restrict landscaping in dune habitat areas to native vegetation. 3.1.3-5. Require annual renewal of encroachment permits and a fee. 3.1.3-6. Require encroachment permits to specify that the property owner waives and gives up any right to contest the validity of the oceanfront street easement, and that the encroachment permit is revocable, without cause, if the City proposes to construct public improvements within that zone. 18-30 3.1.3-7. Require encroachment permits to specify that the construction of any seawall, revetment or other erosion control devices, if necessary, shall occur within, or as close as feasible to, private property. 3.1.3-8. Incorporate into the implementation plan regulations specifying the types of improvements permitted within encroachment zones, a prohibition on improvements that could impair or restrict public access or views, procedures for the encroachment permit applications, City administration of the policy, and other appropriate provisions. 3.1.3-9. As mitigation for any impact on beach access resulting from the encroachments: A. Maintain 33 street ends between 36th Street and Summit to provide an average of 2 parking spaces per street, and additional spaces where feasible. B. Meter West Newport street end parking spaces in the same manner as the West Newport Park in order to encourage public use of the spaces. C. Maintain a hard surface walkway perpendicularto Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end and at least one other handicapped parking space at one other West Newport street end. D. Require a minimum of 85 percent of the fees generated by encroachments will be used for the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, transportation alternatives, restrooms, vertical or lateral walkways along the beach and similar projects. 18-31 City of Newport Beach Coastal Implementation Plan Proposed Amendments to Appendix C Appendix C — Oceanfront Encroachment Policy Guidelines The Oceanfront Encroachment Policy established specific restrictions and conditions on the installation of private improvements in the public right of way along the oceanfront from the Santa Ana River Channel to Channel Road. The policy included a mitigation program involving the reconstruction of 33 unimproved street ends between 36th Street and Summit Street to provide additional parking and improved public access. In 2002, the final five street ends were reconstructed. Pursuant to the mitigation program, a minimum of 85 percent of the encroachment fees will be used for the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects. The Oceanfront Encroachment Policy was originally approved by the Coastal Commission on June 11, 1991 and finalized by the City Council through the adoption of Resolution No. 91-80 on July 11, 1991. These restrictions and conditions were incorporated into the Coastal Land Use Plan, which was approved by the Coastal Commission on October 13, 2005, adopted by the City Council on December 13, 2005, and became effective on February 8, 2006. These guidelines are intended to implement the Oceanfront Encroachment Policy by establishing a procedure for approval of permitted encroachments, removal of prohibited encroachments, limiting the extent of encroachments, and clarification of improvements permitted within each encroachment zone. A. Definitions. 1. For the purpose of this Section, the following words and phrases shall be defined as specified below: a. Existing encroachment shall mean any encroachment or improvement installed or constructed before May 31, 1992. b. New encroachment shall mean any encroachment or improvement installed or constructed after May 31, 1992. C. Improvements or Encroachments shall mean any object, thing or landscaping: within or oceanward of any encroachment zone described in this policy; ii. within or oceanward of the north edge of the Oceanfront Boardwalk, between 36th Street and A Street; or Newport Beach LCP Implementation Plan Page C-1 18-32 iii. oceanward of any residential parcel from a point 250 feet southeast of E Street to Channel Road. d. Encroachment permit shall mean the permit issued by the Public Works Director authorizing the maintenance or installation of encroachments or improvements within the encroachment zones described in this policy. e. Application shall mean any application for an encroachment permit pursuant to the provisions of this policy and the land use plan of the local coastal program. f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the concrete walkway along the oceanside of ocean front residential properties between 36th Street and a point approximately 250 feet southeast of E Street. B. Encroachment Zones. Subject to compliance with the provisions of this policy: 1. The owner of any ocean front residential parcel between the Santa Ana River and 52nd Street may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 2. The owner of any oceanfront residential parcel between 52nd Street and 36th Street may install improvements on the ocean side of the parcel up to a maximum of 10 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 3. The owner of any oceanfront residential parcel between A Street and a point 250 feet southeast of E Street may install improvements up to the inland edge of the Oceanfront Boardwalk and within an oceanward prolongation of the property lines on the side of the parcel. 4. The owner of any oceanfront residential parcel between and including 1400 East Ocean Front and Channel Road may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. C. Prohibited Encroachments. 1. Encroachments and improvements are prohibited oceanward of private property between 36th Street and A Street. Newport Beach LCP Implementation Plan Page C-2 18-33 2. Encroachments and improvements are prohibited oceanward of any ocean front parcel from a point 250 feet southeast of E Street to Channel Rea and including 107 G Street, with the exception of landscaping trees existing prior to October 22, 1991, and groundcover. 3. Any existing encroachment or improvement for which no application has been filed on or before May 31, 1992, and any new encroachment or improvement for which no application is filed prior to installation is prohibited. 4. Any new or existing encroachment or improvement which, on or after July 1, 1992, is not in conformance with this policy is prohibited. 5. Any new or existing encroachment or improvement for which there is no valid permit. D. Permitted Encroachment/improvements. Subject to compliance with the provisions of this policy, the following improvements are permitted within the encroachment zones described in Section B: 1. Patio slabs or decks no higher than six inches above existing natural grade. The determination of grade will be made as provided in Section J. 2. Walls and/or fences less than 36 inches in height above existing natural grade. The determination of grade will be made as provided in Section J. 3. Existing improvements which were constructed in conjunction with development for which a building permit was issued may be approved by the Public Works Director upon a finding that the improvement is consistent with or is modified to be consistent with the standards of this chapter. 4. . Where a shoreline protective device per Section 21.30.030(Natural Landform and Shoreline Protection) cannot be sited within private property, it may be sited as close as feasible to private property. In no event shall a shoreline protective device be constructed to protect a private encroachment authorized on a public right-of-way. E. Prohibited Improvements. 1. Except for perimeter walls and/or fences less than 36 inches in height, any structural, electrical, plumbing or other improvements which require issuance of a building permit. 2. Pressurized irrigation lines and valves. 3. Any object which exceeds 36 inches in height, exclusive of the following: a. trees planted by the City of Newport Beach or private parties pursuant to written policy of the City Council of the City of Newport Beach; or Newport Beach LCP Implementation Plan Page C-3 18-34 b. any landscaping or vegetation within the encroachment zone subject to the following: The vegetation or landscaping was installed prior to the first effective date of this policy; ii. The vegetation or landscaping does not block views from adjoining property; iii. The vegetation or landscaping does not function as a hedge as defined in Title 20 of the Newport Beach Municipal Code; and iv. The vegetation or landscaping does not impair or affect the health, safety or welfare of persons using the oceanfront Walk, nearby property owners, or residents of the area. V. New plant materials that have not been approved by a coastal development permit issued by the Coastal Commission. Notwithstanding the provisions of this Subparagraph, the City reserves the right to reduce the height of any existing landscaping at any time, upon a determination by the Public Works Director, and after notice to the owner of property on which the vegetation or landscaping exists, that a reduction in height is necessary or appropriate given the purposes of this policy. F. Permit Process. 1. An encroachment permit shall be required for all permitted improvements. The application shall be filed with the Public Works Department on a form provided by the City. The application shall be signed by the owner of the property, or an agent of the owner if the application is accompanied by a document, signed by the owner, granting the agent the power to act for the owner with respect to the property. The application shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all proposed improvements and objects within the encroachment zone. Applications with incomplete information and/or inadequate drawings will not be accepted. 2. Applications for existing encroachments must be filed on or before May 31, 1992. Applications for new encroachments shall be filed before any encroachment or improvement is installed. No new encroachments or improvements shall be installed without an encroachment permit. 3. Upon receipt of the application, the Public Works Director shall, within fifteen (15) days after the date of filing, determine if the application is complete or if additional information is necessary or appropriate to an evaluation of the application. In the event the application is incomplete or additional information is necessary, written Newport Beach LCP Implementation Plan Page C-4 18-35 notice to that effect shall be sent to the property owner within twenty (20) days after the application is filed. 4. With respect to applications for existing encroachments, an inspection shall be conducted of all improvements within the encroachment zone before a permit is issued by the Public Works Director. With respect to applications for new encroachments, an on site inspection will be conducted after installation of the improvements to insure conformity with provisions of the permit and this Section. 5. The Public Works Director shall approve the permit upon a determination that the encroachments proposed to be constructed, or to remain, are permitted by this Section, the applicant has agreed to abide by all of the terms and conditions imposed on the permit, and the applicant has paid all fees. 6. The Public Works Director shall have the authority to condition his/her approval of the encroachment permit as necessary or appropriate to insure compliance with the provisions of this Section. The Public Works Director shall have the specific authority to condition approval of an encroachment permit on the removal of nonconforming improvements within a specified period of time. 7. The Public Works Director shall notify the applicant of his/her decision within sixty (60) days after the application is filed and the decision of the Public Works Director shall be final. G. Term. 1. Except as provided in this Section, annual encroachment permits shall expire on June 30 of each calendar year. 2. Encroachment permits issued prior to June 30, 1992 shall expire June 30, 1993. H. Renewal. 1. Annual renewal fees shall be due and payable on or before May 31 preceeding the annual term of the permit. For example: Annual renewal fees due on May 31, 2001, are for the period July 1, 2001 through June 30, 2002. 2. The Public Works Director shall approve annual renewal if: a. The applicant has complied with all standard and special conditions of approval; b. The applicant has constructed only those improvements and encroachments authorized by the permit; C. The applicant is in compliance with all of the provisions of this policy. Newport Beach LCP Implementation Plan Page C-5 18-36 Standard Conditions. 1. The Public Works Director shall impose standard conditions of approval on all encroachment permits. These standard conditions shall include, without limitation, the following: a. The obligation of permittee to comply with all of the provisions of this policy and all conditions imposed upon the permit. b. The right of the Public Works Director to revoke any permit after notice and hearing if the permittee is in violation of this policy or conditions to the permit. C. The right of the City to summarily abate encroachments or improvements which are prohibited by this policy or conditions on the permit upon ten (10) day's written notice. d. The obligation of permittee to pay all costs incurred by the City in summarily abating any prohibited improvement. e. The obligation of permittee to defend, indemnify and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment. f. Permittee's waiver of any right to contest the City's street and public access easement over property within or oceanward of the encroachment zones. g. The right of the Public Works Director or his designee to inspect improvements within the encroachment zone without notice to the permittee. h. The right of the City to cancel or modify any, or all, encroachment permit(s) upon a determination by the City Council to construct a public facility or improvement within or adjacent to the encroachment zone. 2. The construction of any seawall, revetment or other device necessary to control erosion, shall occur as close to private property as feasible. Erosion control devices shall not be placed or installed closer to the ocean to protect improvements or encroachments. 3. The Public Works Director may impose additional standard conditions necessary or appropriate to insure compliance with, or facilitate City administration of this policy. J. Determination of Grade. 1. The nature of the beach makes a precise determination of grade difficult. The level of the sand changes with wind, storm, and tidal conditions. The Public Works Newport Beach LCP Implementation Plan Page C-6 18-37 Director shall determine the level from which the height of encroachments and improvements is to be measured. In making this determination, the Public Works Director shall consider the following criteria: a. The existing natural grade in the area; d. Any data on the historic elevation of the beach in that area. K. Annual Fee. 1. The fees based on the depths of encroachment shown below shall be established by resolution of the City Council and paid annually as a condition of the issuance of encroachment permits: Depth of Encroachment 0 - 5 feet 5 - 7 1/2 feet 7 1/2 - 10 feet 10 - 15 feet 2. For purposes of determining fees, the average depth of the encroachment shall be used. However, the maximum depth shall not exceed the limitations specified in Section B. A dimensional tolerance not to exceed 12 inches may be allowed in determining the appropriate fee to be paid by persons with existing encroachments. 3. The annual fee shall be due and payable upon submittal of the application for the initial encroachment permit. Renewal fees shall be due May 31 of each year. The fee shall be considered delinquent thirty (30) days thereafter. Delinquent fees shall be established by resolution of the City Council. 4. The annual fee shall be used to defray City costs of administration, incidental costs of improvements on street ends along the oceanfront, and incidental costs to enhance public access and use of the ocean beaches. At least eighty-five (85%) percent of the fees shall be used by the City to implement the mitigation plan as required by Amendment No. 23 to the Land Use Plan of the City's Local Coastal Program. (See Section M.) L. Violations/Remedy. 1. The City shall, in addition to any right or remedy provided by law, have the right to do any or all of the following in the event a permittee is in violation of the provisions of this policy or any condition to the permit, or any encroachment or improvement violates the provisions of this policy: Newport Beach LCP Implementation Plan Page C-7 18-38 a. Revoke the permit after giving the permittee notice and an opportunity to be heard upon a determination that there is substantial evidence to support a violation of this policy. The Public Works Director shall establish the specific procedures designed to insure that permittee receives due process of law. b. Summarily abate any encroachment or improvement violative of this policy after giving the permittee or property owner ten (10) day's written notice of its intention to do so in the event the permittee or property owner fails to remove the encroachment or improvement. The permittee or property owner shall pay all costs incurred by the City in summarily abating the encroachment or improvement. The determination of the Public Works Director with respect to abatement shall be final. M. Mitigation Plan. To mitigate any impact on beach access resulting from the encroachments, the City shall: 1. Reconstruct thirty-three unimproved street ends between 36th Street and Summit to provide additional parking and approved access in accordance with the following: a. The reconstruction shall provide a minimum, where feasible, of two parking spaces per street end and shall proceed in substantial conformance with the standard drawing, attached as exhibit "A." b. The City shall use at least eighty-five percent (85%) of the fees to fund reconstruction of street ends until all have been improved. The City will use its best efforts to improve three or more street ends per year (except during the year when vertical handicapped access is constructed), and anticipates that funding will be adequate to do so. C. West Newport street -end parking spaces shall be metered in the same manner as the West Newport Park in order to encourage public use of the spaces. 2. Within three years after Council approval of this Resolution, City shall construct a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end. City shall designate at least one other handicapped space at one of the first three street ends improved. 3. Subsequent to the reconstruction of all West Newport street ends, at least eighty- five percent (85%) of the fees generated by encroachments will be used for the construction of improvements which directly benefit the beach going public such Newport Beach LCP Implementation Plan Page C-8 18-39 as parking spaces, transportation alternatives, rest rooms, vertical or lateral walkways along the beach and similar projects. Newport Beach LCP Implementation Plan Page C-9 S �I Attachment D East Ocean Front Encroachment and Removal and Replacement Program (without Attachment) 18-41 East Ocean Front Comprehensive Encroachment and Removal and Replacement Program Adopted by Newport Beach City Council , 2016 18-42 BACKGROUND East Ocean Front Comprehensive Encroachment and Removal and Replacement Program Peninsula Point is one of Newport Beach's original residential neighborhoods with the tract maps having been recorded in the early 1920s. Located at the eastern end of Balboa Peninsula, the neighborhood borders the west side of the Newport Harbor jetty along the harbor entrance. The neighborhood is primarily developed with single-family homes, and as indicated in the aerial photograph, homes border the harbor area as well as the ocean beach. Although not developed with any type of improvement, the City owns a 15 -foot wide right-of-way adjacent to the ocean -facing properties from 1400 East Ocean Front to Channel Road (at the Wedge). Unpermitted encroachments into the City's right-of-way and onto the public beach have existed for some time. In 2012, the California Coastal Commission issued notices of violation to 15 property owners. These notices stated that the encroachments were on public property and are inconsistent with policies of the Coastal Act and the City's Coastal Land Use Plan, and therefore the development is required to be removed and the beach restored for public use. A total of 58 properties were identified as potentially in violation. PURPOSE The intent of this program is to create a comprehensive solution to the notices of violation issued by the Coastal Commission, and the program includes two components: An Encroachment Plan that allows limited improvements within the City's 15 -foot right- of-way in conjunction with obtaining an encroachment permit and paying an annual fee, to be used for other visitor -serving uses; and A Removal and Replacement Plan for the unpermitted development on the public beach beyond the City's public right-of-way and on other tidelands areas. 18-43 The program provides a means for property owners along East Ocean Front and a portion of G Street to encroach into the 15 -foot right-of-way at the rear (ocean -facing side) of their properties. It does not permit encroachments beyond this 15 -foot right-of-way and onto the public beach or other tidelands areas. Additionally the removal and replacement plan provides a City -implemented and coordinated approach to removing the unpermitted beyond the 15 - foot public right-of-way. It is important to note that this comprehensive program will require review and approval by the Coastal Commission prior to its implementation. The Encroachment Plan APPLICABILITY The encroachment plan is available to property owners along East Ocean Front from approximately G Street to Channel Road (see exhibits below). Property owners with existing encroachments into the City's right-of-way will be required to participate in the program or remove the unpermitted development in the right -of way. Property owners who do not have any improvements in the City's right-of-way would have no need to participate in the program. 1400 - 1580 East Ocean Front,° p Mpg w 13 Foof Rfgfd OF Way +9ppr a�grywY� 0' 41, 0 0 X41'41 _. w N4 1700 - 2060 East Ocean Front z 40 Dc n 1 u 15 foot Right of Way �a 2100 2172 East Ocean Frant - Z�9a z OCEAN BLVD \ c5 V N ty :a., h 4O c�U P l ry0 EANFRONTAUEYE O1 N v v h N R O Of@ N NO N R`grnOvOlf CEA"F prep RON7 E 1 i Foot Right of Way I 18-44 ALLOWED IMPROVEMENTS The allowed improvements in the City's 15 -foot right-of- way are limited pursuant to the City's Coastal Land Use Plan which indicates the restrictions on the types of improvement allowed: Any structural, electrical, plumbing or other improvements that require issuance of a building permit are prohibited. Pressurized irrigation lines and valves are prohibited. Any object that exceeds 36 inches in height, with the exception of landscaping, is prohibited. Any encroachments that impact public access, recreation, views and/or coastal resources are Example of West Newport Encroachment prohibited. Landscaping must be designed and maintained to avoid impacts to public access and views. Landscaping in dune habitat areas is restricted to native vegetation. West Newport Example PERMIT PROCESS So as an example, these standards may allow: Low fences, walls, and/or hedges Decorative plantings Play equipment that is 36 inches or under in height Patio slabs/decks Stepping stones/paths City Council Policy L-12 details the process for obtaining an encroachment permit. An encroachment permit application will be reviewed and acted upon by the Public Works Department, and the application form shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all 18-45 proposed improvements and objects within the encroachment area. Council Policy L-12 is available on the City's website at www.newportbeachca.gov. FEES The City Council will adopt a fee schedule for the encroachment plan by resolution. Fees shall be set at fair market value, using one or more appraisals. USE OF FEES Coastal Land Use Policy 3.1.3-9 specifies that the fees collected through this encroachment plan will serve as mitigation for any impact on beach access resulting from the encroachments. The fees are to be used for construction and maintenance of improvements which directly benefit the beach -going public. Improving accessibility to the West Newport/Balboa Peninsula through transportation alternatives is one use for the fees. New transportation alternative amenities could include, but are not limited to: 1. A free shuttle program for Balboa Peninsula. The City has received a grant from the Orange County Transportation Authority and intends to have the program operating in the summer of 2017. The encroachment fees could also serve as funding source for the long-term operation of the shuttle service. 2. Improving the boardwalk transition at E Street to Ocean Boulevard. 3. Improving pedestrian and bicycle access in the McFadden Square area; 4. Providing additional parking on Balboa Peninsula. This could include increased parking on the Peninsula, such as at the Palm Street lot, or at an off-site location that is tied to the shuttle system S. Improving the safety of the existing boardwalk for all types of users. 6. Improving ADA access to sandy beach areas. Additionally, the fees could be used to increase lifeguarding hours and presence at the Balboa Peninsula Point beaches, including the Wedge. The City's expenditures of the encroachment fees for any of the improvements listed above would be subject to appropriate public review and permits, including a coastal development permit if required. The Removal and Replacement Plan The purpose of the plan is to remove the ornamental improvements and invasive vegetation in stages over a three-year period, while encouraging existing native coastal strand vegetation and introducing appropriate groundcover (such as dunes grasses versus non-native iceplant) in the removal areas, so that large areas of sand are not made unstable at any time during the process. The plan also includes a three-year maintenance and monitoring program. The plan is contained in Attachment A. 18-46 Appendix A of the plan includes a cost estimate of approximately $250,000 for removing the unpermitted development beyond the 15 -foot encroachment area and the three-year monitoring effort. The Plan also provides the costs for each affected parcel which range from less than $100 to over $5,000. To maintain a comprehensive and integrated approach, the City will implement the Removal and Replacement Plan and recover all or a portion of the costs from the appropriate adjacent property owners. SUMMARY This program provides a comprehensive approach that allows the residents of the East Ocean Front area limited use of the City's 15 -foot right-of-way that is similar to what is currently allowed in West Newport, while also providing a comprehensive plan for the City to remove the unpermitted development on the public beach and then install appropriate native plantings that will stabilize the sand area. The City will use the encroachment fees collected through this plan to further enhance public access to the Balboa Peninsula and West Newport ocean beaches. ATTACHMENT Attachment A — Encroachment Removal and Replacement Plan 18-47 ATTACHMENT A Encroachment Removal and Replacement Plan 18-48