HomeMy WebLinkAbout2019-30 - 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 DriveRESOLUTION 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 7
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, Newport Beach Council Policy H-1 provides that a pier or float may
extend beyond the pierhead line if the Harbor Commission makes a determination that
such extension will not negatively impact: (1) navigation; (2) adjacent property owners;
and (3) existing harbor uses;
WHEREAS, after consideration of an appeal, Section 17.65.040(F) authorizes the
reviewing body to affirm, modify or reverse the original decision; and
Resolution No. 2019-30
Page 3 of 7
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").
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. 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 4of7
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 and policies.
Section 3: The City Council does hereby modify the Harbor Commission's
decision and directs the Public Works Director to process for approval the Modified
Project set forth in Exhibit "B" but revised to reflect the appropriate pierhead line, project
line, and subject to any special conditions required by the Public Works Director. Public
Works Director shall provide a copy of the revised plan to the Appellant. 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 7
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.
iii. 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.
Resolution No. 2019-30
Page 6of7
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.
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.
Section 4: The Modified Project will not negatively impact: (1) navigation; (2)
adjacent property owners; and/or (3) existing harbor uses.
Facts in Support of Finding. 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. The Modified Project will not
increase navigational congestion in the adjacent channel. 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. Finally, the Modified Project is acceptable to the
Appellants, all of whom reside adjacent to the Modified Project site.
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 by declared invalid or
unconstitutional.
Section 7: 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.
Di6ne B. Dixon
Resolution No. 2019-30
Page 7of7
ATTEST:
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Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
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Aaron .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
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EXHIBIT A
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STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2019-30 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 261h day of March, 2019; and the same was so passed and adopted by the
following vote, to wit:
AYES: Council Member Brad Avery, Council Member Joy Brenner, Council Member
Jeff Herdman, Council Member Kevin Muldoon, Mayor Pro Tem Will O'Neill, Mayor
Diane Dixon
NAYS: None
RECUSED: Council Member Duffy Duffield
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 271h day of March, 2019.
J
Leilani I. Brown
City Clerk
Newport Beach, California