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Home My WebLink About15 - 2888 Bayshore Drive (Newport Marina) — Appeal of Harbor Commission's Decision - Amended Pages v2gec� %V-*, Ad' 6"v pn /5'.-T� At) aP��9 RESOLUTION NO. 2019-30 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MODIFYING THE HARBOR COMMISSION'S APPROVAL OF AN "APPROVAL IN CONCEPT" (PROJECT FILE NO. 1502- 2018) FOR THE REMOVAL AND REPLACEMENT OF A DOCK SYSTEM AT THE PROPERTY LOCATED AT 2888 BAYSHORE DRIVE WHEREAS, an application for an Approval in Concept ("AIC") was filed by Palmo Investments, G.P. (Ron and Allyson Presta), for the removal and replacement of the dock system ("Project" or "AIC") at the property located at 2888 Bayshore Drive, 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 (formerly "Harbor Resources Manager") 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 September 27, 2018, the Harbor Resources Manager issued an AIC, including special conditions, determining that the Project is in compliance with all applicable provisions of NBMC Title 17 entitled "Harbor Code" and the "City of Newport Beach Waterfront Project Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities" ("Harbor Design Guidelines"); 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 November 28, 2018, CAA Planning on behalf of Kevin Moriarty, Glenn Walcott, Zach Fischer and Terry Morrison ("Appellant") filed a timely appeal of the decision with the basis of the appeal, in pertinent part, being the following: lack of due process/inadequate notice of the Public Works Director's decision and inadequate setbacks as required by a prior approval for the Project; Resolution No. 2019-30 Page 2 of 6 WHEREAS, on or about January 9, 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 Chapter 20.62. 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 Harbor Resources Manager's decision to approve the AIC; WHEREAS, on or about January 22, 2019, the Appellant filed a timely appeal of the AIC with the basis of the appeal, in pertinent part, being the following: approval is inconsistent with prior 2016 approval; approved plan is incompatible with surrounding residences; approval sets an unfavorable precedent; and the approval was in violation of CEQA; WHEREAS, on or about February 12, 2019 and March 12, 2019, a public hearing before the City Council was noticed to take place in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, however, in each instance, the public hearing was continued to March 12, 2019 and March 26, 2019, respectively. Notice of the time, place and purpose of each public hearing was given in accordance with the Ralph M. Brown Act and NBMC Chapter 20.62; WHEREAS, on or about March 26, 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 Chapter 20.62. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing; WHEREAS, 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, after consideration of an appeal, Section 17.65.040(F) authorizes the reviewing body to affirm, modify or reverse the original decision; and WHEREAS, the Applicant has submitted Alternate Layout Option #7.1 attached hereto as Exhibit "A" which revises the Project to address the concerns raised by Appellant with additional minor revisions set forth in Alternate Layout Option #7.2 attached hereto as Exhibit "B" ("Modified Project"). Resolution No. 2019-30 Page 3 of 6 NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council finds that the Modified Project is exempt from the requirements of CEQA for the following reasons.- A. easons: A. Title 14 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 marina is an existing facility that has been in operation for several decades. The overwater coverage of the new marina will increase from 12,787 square feet to 13,722 square feet. The number of slips will decrease from 53 to 50 with the slip mix remaining balanced. The Modified Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15301. B. 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[.]" (CEQA Guidelines Section 15302.) The proposed replacement marina is in the same location and is substantially the same size, purpose and capacity as the marina it replaces. The overwater coverage of the new marina will increase from 12,787 square feet to 13,772 square feet. The number of slips will decrease from 53 to 50 with the slip mix remaining balanced. The Modified Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15302. C. No substantial evidence exists demonstrating that any exception to the applicable categorical CEQA exemptions listed in CEQA Guidelines Section 15300.2 applies. i. There are no circumstances triggering the unusual circumstances exception set forth in CEQA Guidelines Section 15300.2, subd. (c), and there is no substantial evidence that the Modified Project would have a significant impact on the environment due to those unusual circumstances. Newport Harbor includes a mix of public slips and moorings, residential docks and commercial marinas. Newport Marina is being rebuilt in a manner consistent with the current configuration. The Modified Project is in conformity with the City's Harbor Design Guidelines and the Local Coastal Plan. Resolution No. 2019-30 Page 4 of 6 ii. The exception under Section 15300.2, subds. (d) and (e) are inapplicable because the Modified Project is not on a "highway officially designated as a state scenic highway" or on a hazardous materials -related site "which is included on any list complied pursuant to section 65962.5 of the Government Code" because there is no "successive projects of the same type in the same place" occurring as this Project. The exception in Section 15300.2, subd. (f) is also inapplicable since the Modified Project does not affect any historical resources. D. Based on the whole of the administrative record the Modified Project is exempt from CEQA pursuant to CEQA Guidelines Sections 15301 and 15302 and there is no substantial evidence demonstrating that any exception to the categorical exemptions listed in CEQA Guidelines Section 15300.2 applies. Section 2: The adoption of Resolution No. 2019-30 shall not be interpreted as prohibiting the Applicant from requesting a revision to the AIC as authorized in Section 17.50.040 or from submitting a new AIC application consistent with Section 17.50.020 provided the revision or new application conforms to the design criteria and all applicable standards an0'�s s. Sectiohe City Council does hereby modify the Harbor Commission's decision and the Public Works Director to process for approval the Modified Project set forth in Exhibit "B" but revised to reflect the appropriate pierhead line and subject to any special conditions required by the Public Works Director. 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 Modified Project conforms to the design criteria and all applicable standards and policies in conjunction with plan reviews by the City. Facts in Support of Finding. The Modified Project conforms to the City's Harbor Design Guidelines, including, but not limited to, the following: 1) the finger widths are within the lengths required in Section I.A.2.c. Table No. 1 of the Harbor Design Guidelines, 2) an accessible ramp is incorporated in the Modified Project as required by Section I.A.5.b. of the Harbor Design Guidelines and the Federal Americans with Disabilities Act, 3) the existing dock was permitted to extend beyond the pierhead line prior to July 12, 2018 and the Modified Project does not extend or enlarge the protrusion any further than the existing dock, and 4) no variances are requested or required. Resolution No. 2019-30 Page 5 of 6 B. Section 17.50.040(B)(2). The Modified Project is not likely to create navigational congestion, or otherwise interfere with the rights of other harbor permittees within Newport Harbor, or other oceanfront property owners. Facts in Support of Finding_ The Modified Project will not increase navigational congestion in the adjacent channel. Additionally, the Modified Project will not interfere with rights of others in that the Modified Project is agreeable to both the Applicant and Appellant, the Modified Project includes a camel barrier safety system at the south end of the Property, and the Project is conditioned so that cleats are not permitted on the southern end of the main headwalk adjacent to 2782 Bayshore Drive. C. Section 17.50.040(B)(3). The Modified Project conforms to the policies and regulations of the certified Local Coastal Program. Facts in Support of Finding_ The Modified Project is designed and sited so as not to obstruct public access and to minimize impacts to public coastal views and coastal resources. There is currently no public access or a public coastal view within or adjacent to the Property, therefore no public access or views will be impacted. The Modified Project is in the same location and is substantially the same size, purpose and capacity as the marina it replaces. ii. The Modified Project is designed and sited to be harmonious with the natural appearance of the surrounding area. The Modified Project is a replacement of the existing marina, but in a marginally different configuration. The Modified Project will not be out of character with the surrounding area, and is substantially the same size, purpose and capacity as the marina it replaces. The Modified Project is designed and sited and makes use of materials that will minimize and, where feasible, avoid impacts to eelgrass and marine habitat. The Modified Project is sited to minimally impact eelgrass where it was surveyed in 2018. iv. The Modified Project will increase the overall water coverage from 12,787 square feet to 13,722 square feet, in part, to comply with the current dock design standards. V. The Modified Project is designed and sited to the water's depth and accessibility. D. Section 17.65.040(F). When a decision is modified or reversed, the appellate (or reviewing) body shall state the specific reasons for modification or reversal. Resolution No. 2019-30 Page 6 of 6 Facts in Support of Finding. The Modified Project is acceptable to the Applicant and Appellant and address the concerns raised by Appellant while also conforming to all applicable standards as identified in Sections 3.A -C above. Secti n 4: The recitals provided in this resolution are true and correct and are incorporated e operative part of this resolution. Section 5: 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 6: 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 26th day of March, 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: Exhibit A - Project No. 1502-2018 Modified Site Plan Exhibit B - Project No. 1502-2018 Modified Site Plan identified as Alternate Layout Option #7.2