HomeMy WebLinkAbout04 - Approving the Proposed Residential Dock Reconstruction Project at 939 Via Lido SoudTO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
June 11, 2019
Agenda Item No. 4
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Dave Webb, Public Works Director - 949-644-3330
dawebb@newportbeachca.gov
PREPARED BY: Chris Miller, Public Works Administrative Manager,
cmiller@newportbeachca.gov
PHONE: 949-644-3043
TITLE: Resolution No. 2019-48: Approving the Proposed Residential Dock
Reconstruction Project at 939 Via Lido Soud
ABSTRACT:
At the May 28, 2019 meeting, the City Council approved the proposed residential dock
project at 939 Via Lido Soud, and directed staff to return to the next Council meeting with
an updated resolution to reflect the City Council's decision and findings. This report
provides the requested resolution approving the proposed residential dock and sets forth
the conditions of approval.
RECOMMENDATION:
a) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant
to Section 15301 (Existing Facilities) and Section 15302 (Replacement or
Reconstruction) of the CEQA Guidelines, Code of Regulations, Title 14, Chapter 3; and
b) Adopt Resolution 2019-48, A Resolution of the City Council of the City of Newport
Beach, California, Approving the Residential Dock Reconstruction Project (File
No. 2585-2018) at the Property Located at 939 Via Lido Soud.
FUNDING REQUIREMENTS:
Beyond the related staff time needed to administer and process this item, there is no
anticipated fiscal impact related to this item.
DISCUSSION:
Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may
not extend beyond the pierhead line unless approved by Council Policy. In 2018, City
Council Policy H-1 was amended so that piers or floats may not extend beyond the
pierhead line unless a determination is made that the extension will not negatively affect
(1) navigation, (2) adjacent property owners, and (3) existing harbor uses.
4-1
Resolution No. 2019-48: Approving the Proposed Residential
Dock Reconstruction Project at 939 Via Lido Soud
June 11, 2019
Page 2
Existing Permit and Residential Dock Configuration
The applicant who owns the home at 939 Via Lido Soud ("Property") has a residential
dock on the easterly tip of Lido Isle, opposite Bay Island, and adjacent to the designated
short-term anchorage area. The float is currently configured as a U -shape, which is
slanted to the north. According to the applicant's current permit, the existing float is
permitted to extend up to the pierhead line. However, in the existing configuration, the
float extends approximately 9 feet beyond the pierhead line (as measured on the southern
edge of the southern finger).
2018 Application for Residential Dock Reconfiguration
In October 2018, the applicant submitted a proposal to remove the existing pier -approach,
gangway and U -shape float, and replace it with a new gangway lobe, gangway and
reconfigured U -shape float which would extend 16 feet beyond the pierhead line. Staff
denied the request based on City Council Policy H-1, which does not allow floats to extend
beyond the pierhead line unless approved by the Harbor Commission.
Harbor Commission Appeal
The applicant appealed the Public Works Director's denial to the Harbor Commission,
and a public hearing was held on February 13, 2019. After considering the appeal, the
Harbor Commission upheld the Public Works Director's denial (6-1) because the Harbor
Commission did not make the findings for approval.
City Council Appeal
The applicant appealed the Harbor Commission's denial to the City Council within the
required timeframe on the basis that the proposed application conforms to the applicable
provisions of Newport Beach Municipal Code ("NBMC") Title 17 and Council Policy H-1.
On May 28, 2019, the appeal was heard by the City Council, which, pursuant to Section
17.65.040(F), is authorized to affirm, modify or reverse the Harbor Commission's
decision.
At the hearing on May 28, 2019, the City Council considered both oral and written
testimony from the applicant, neighbors and the public. The primary issues considered
by the City Council at the appeal hearing was whether the proposed configuration of the
float was allowed under NBMC Section 17.35.030 (A), 17.50.040(B)(2) and Council Policy
H1. Specifically, the NBMC and Council Policy H1 prohibit a float from extending beyond
the pierhead line, unless it is determined the extension of the float does not negatively
affect (1) navigation, (2) adjacent property owners, and (3) existing harbor
uses/permittees.
4-2
Resolution No. 2019-48: Approving the Proposed Residential
Dock Reconstruction Project at 939 Via Lido Soud
June 11, 2019
Page 3
At the hearing, information was presented to the City Council that the navigable channel
in front of the Property to the anchorage is 256 feet wide, which provides adequate space
to navigate the channel without undue congestion. The applicant also provided the City
Council with documents and correspondence from the adjacent property owners at 929,
933, 941 and 944 Via Lido Soud, which indicated the proposed project would not interfere
with the adjacent property owners. Evidence was also submitted that the proposed
project would not affect harbor dredging as the closest piling to the federal project line is
set back five feet from the project line. Finally, correspondence from a former Harbor 20
Fleet Captain indicated the proposed project would not negatively affect sailboat racing
in the area of Newport Harbor east of Lido Isle.
In addition, at the hearing, evidence was presented to the City Council regarding the
proposed projects conformance with Harbor Design Guidelines, as required by Section
17.50.040(A) and (13)(1). At the hearing, City staff provided information to the City Council
regarding the configuration of the proposed project in regards to the Harbor Design
Guidelines. The Building Official has reviewed the design of the proposed project and
determined that configuration of the proposed project is acceptable in that it does not
lessen health, accessibility, life and fire safety, or structural requirements.
After hearing all of the testimony and evidence, the City Council voted 4-3 to approve the
proposed dock reconstruction project at 939 Via Lido Soud with a special condition that
any vessel berthed at the float shall not extend past the end of the float by more than fifty
percent (50%) of the beam (i.e. overall vessel width). As part of the motion to approve
the proposed project, the City Council directed City staff to return with a resolution
approving the project, with conditions. The requested resolution is attached hereto as
Attachment A. For background, City staff has also included the May 28, 2019 staff report,
which is attached hereto as Attachment B.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act ("CEQA") pursuant to Section 15301 (Existing Facilities) and
Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3. CEQA Guidelines Section 15301 (Class 1) applies to
the "operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of
existing public or private structures, facilities, mechanical equipment, or topographical
features, involving negligible or no expansion of existing or former use." Section 15302
(Class 2) applies to the "replacement or reconstruction of existing structures and facilities
where the new structures will be located on the same site as the structure replaced and will
have substantially the same purpose and capacity as the structure replaced[.]" The
replacement residential dock system is in the same location and is substantially the same
size, purpose and capacity as the dock system it replaces. The overwater coverage of the
new dock system increased from 1,287 square feet to 1,765 square feet. The single,
U -shape slip configuration remains the same, though oriented differently.
4-3
Resolution No. 2019-48: Approving the Proposed Residential
Dock Reconstruction Project at 939 Via Lido Soud
June 11, 2019
Page 4
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item). The public hearing for the
May 28, 2019 meeting was also noticed to all residents within a 300' radius per
NBMC 21.62.020(B)(2)(c) and published in the newspaper.
ATTACHMENTS:
Attachment A — Resolution No. 2019-48
Attachment B — Staff Report from the May 28, 2019 City Council Meeting
ATTACHMENT A
RESOLUTION NO. 2019-48
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING THE
RESIDENTIAL DOCK RECONSTRUCTION PROJECT
(FILE NO. 2585-2018) AT THE PROPERTY LOCATED AT
939 VIA LIDO SOUD
WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark
Conzelman to remove the existing gangway and U -shape float and replace it with a new
gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located
at 939 Via Lido Soud, City of Newport Beach, County of Orange, State of California
("Property");
WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4)
requires City of Newport Beach Public Works Director to issue an AIC for all development
areas where the Coastal Commission retains coastal development permit authority;
WHEREAS, the Property is located within the coastal zone;
WHEREAS, on or about December 11, 2018, the Public Works Director
determined the Project did not comply with NBMC Section 17.35.030(A) and Council
Policy H-1 (Harbor Permit Policy) in that the gangway and reconfigured U -shape float
(currently permitted to extend up to the pierhead line) would extend 16 feet beyond the
pierhead line;
WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works
Director's determination to the City of Newport Beach Harbor Commission by any
interested person;
WHEREAS, on or about December 13, 2018, Swift Slip Dock and Pier Builders,
Inc. on behalf Mark Conzelman ("Appellant") filed a timely appeal of the determination
with the basis of the appeal, in pertinent part, being the following: the dock will
accommodate the applicant's larger vessel and most of the residential docks from 939
Via Lido Soud to Via Waziers on Via Lido Soud extend to the project line;
Resolution No. 2019-48
Page 2 of 5
WHEREAS, on or about February 13, 2019, the Newport Beach Harbor
Commission held a public hearing in the Council Chambers located at 100 Civic Center
Drive, Newport Beach, California. Notice of the time, place and purpose of the public
hearing was given in accordance with California Government Code Section 54950 et.
seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented
to, and considered by, the Harbor Commission at the public hearing. At the conclusion
of the public hearing, the Harbor Commission voted to uphold the Public Works Director's
decision to deny the Project;
WHEREAS, on or about February 26, 2019, the Appellant filed a timely appeal of
the Harbor Commission's decision with the basis of the appeal, in pertinent part, being
the following: the Project will not affect navigation, adjacent property owners or existing
harbor uses;
WHEREAS, on or about May 28, 2019, the City Council held a public hearing in
the Council Chambers located at 100 Civic Center Drive, Newport Beach, California.
Notice of the time, place and purpose of the public hearing was given in accordance with
the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to,
and considered by, the City Council at the public hearing;
WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor
Development Permits upon the determination that a new permit and/or a revision to an
existing permit conforms to the design criteria and all applicable standards and policies
in conjunction with plan reviews by the Public Works Department;
WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend
beyond the pierhead line unless approved by Council Policy H-1;
WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may
not extend beyond the pierhead line unless the Harbor Commission makes a
determination that such extension will not negatively impact: (1) navigation; (2) adjacent
property owners; and (3) existing harbor uses; and
WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F)
authorizes the reviewing body to affirm, modify or reverse the original decision.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
a
Resolution No. 2019-48
Page 3 of 5
Section 1: Title 14, Division 6, Chapter 3 of the California Code of Regulations
("CEQA Guidelines") Section 15301 (Class 1) applies to the "operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving
negligible or no expansion of existing or former use." The Project is an existing facility
that has existed for several decades. The overwater coverage of the Project will increase
from 1,287 square feet to 1,765 square feet. The Project is exempt from the requirements
of CEQA pursuant to CEQA Guidelines Section 15301.
CEQA Guidelines Section 15302 (Class 2) applies to the "replacement or
reconstruction of existing structures and facilities where the new structures will be located
on the same site as the structure replaced and will have substantially the same purpose
and capacity as the structure replaced[.]" The Project is in the same location and is
substantially the same size, purpose and capacity as the dock system it replaces. The
overwater coverage of the Project will increase from 1,287 square feet to 1,765 square
feet. The Project is exempt from the requirements of CEQA pursuant to CEQA Guidelines
Section 15302.
Section 2: The City Council does hereby reverse the Harbor Commission's
decision and approves the Proposed Dock Configuration at 939 Via Lido Soud, attached
hereto as Attachment A, and including the special conditions also set forth in Attachment
A, which is incorporated herein by this reference. Additionally, the Project is conditioned
so that any vessel berthed at the float shall not extend past the end of the float by more
than fifty percent (50%) of the beam (i.e. overall vessel width). The City Council's decision
is made in accordance with NBMC Section 17.50.040 and is supported by the following
findings and facts:
A. Section 17.50.040(A) and (B)(1). The Project conforms to the policies in
conjunction with plan reviews by the City.
Facts in Support of Finding. The Project conforms to the Harbor Design
Guidelines. Although the two piles at the end of the finger may extend beyond the
pierhead line, the extension may be authorized by the Building Official if there are practical
difficulties in carrying out the provisions of the code and a special individual reason exists
for making the strict letter of this code impractical. The Building Official has reviewed the
plans and found that the modification complies with the intent and purpose of this code
and that such modification does not lessen health, accessibility, life and fire safety, or
structural requirements. California Building Code Section 104.10.
B. Section 17.35.030(A). Piers and floats may not extend beyond the
pierhead line subject to City Council Policy H-1 which authorizes such extension provided
the Project will not negatively impact: (1) navigation; (2) adjacent property owners; and
(3) existing harbor uses.
M
Resolution No. 2019-48
Page 4 of 5
Facts in Support of Finding. The Project will not negatively impact (1) navigation,
(2) adjacent property owners or (3) existing harbor uses. The Project is located on a
curve on the easterly tip of Lido Isle, opposite Bay Island, across from the designated
short-term anchorage area and the Newport Harbor Yacht Club mooring field near the
convergence of two navigable channels. With respect to (1), the navigable channel in
front of the Property to the anchorage is 256 feet wide, which provides adequate space
to navigate the channel. With respect to (2), the Project will not interfere with adjacent
property owners as evidenced by correspondence of support for the Project from
adjacent property owners at 929, 933, 941 and 944 Via Lido Soud. With respect to (3),
the Applicant provided evidence that the Project would have no impact on harbor dredging
as the closest piling to the federal project line is set back five feet. Additionally,
correspondence from the former Harbor 20 Fleet Captain indicated the Project would not
negatively affect sailboat racing in the area of Newport Harbor east of Lido Isle. No other
evidence was submitted that the Project would have a negative impact on existing harbor
uses.
C. Section 17.50.040(B)(2). The Project is not likely to create navigational
congestion, or otherwise interfere with the rights of other harbor permittees within
Newport Harbor.
Facts in Support of Finding. As indicated above, the navigable channel in front of
the Property to the anchorage is 256 feet wide, which provides adequate space to
navigate the channel. Additionally, correspondence in support of the Project was
submitted from the adjacent property owners at 929, 933, 941 and 944 Via Lido Soud.
The Applicant provided evidence that the Project would have no impact on harbor
dredging as the closest piling to the federal project line is set back five feet. Finally,
correspondence from the former Harbor 20 Fleet Captain indicated the Project would not
have an impact on sailboat racing in the area of Newport Harbor east of Lido Isle. No
other evidence was submitted that the Project would have a negative impact on existing
harbor uses.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases by declared invalid or
unconstitutional.
UK
Resolution No. 2019-48
Page 5 of 5
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting this resolution.
ADOPTED this 11th day of June, 2019.
Diane B. Dixon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment A: Proposed Dock Configuration at 939 Via Lido Soud including Special
Conditions
I •
ATTACHMENT A
6351 Industry Way, Westminster 92683
SWIFT SLIP DOCK & PIER BUILDERS, INC'. PhoneJ949) 631-3121
Fax: (714) 509-0618
CLIENT -
BL 3.0 4/17/19 AMENDMENTS:
CONZELMAN, MARK -- REV: DESCRIPTION: BY: DATE"-
DRAWN: Checked REVISION DATE.
SITE — --"— — _
939 VIA LIDO SOLID NB CA. PROPOSED - ---- -
1 (8)18" Square Pile
PROJECT LINE
2'
PIERIHEAD LINE
❑ ❑ 43 -6'
62 -6"
DOCK: 1,201 FT2
7X68.5=479.5 FT2 ❑ ❑
7'X68.5'=479.5 FT2
6'X23'= 138 FT2 s'
4'X20'= 80 FT2
4'X4'= 2=8FT2X3=24 FT2 2 6
GANGWAY:
3'X24'=72 FT2 I
PIER: 196 FT2 L❑ o
10'X28'=280 FT2 �--IT-u••
4'X4'=16 FT2
TOTAL: 1,765 FT2 3'x24' Gangway
-28
'X4' LOBE
9'� i O _1.•
BULKHEAD LINE.
1 ,s--1 r--,s--i
4-10 I
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c'�L�Fox�N�r.
Public Works
100 Civic Center Drive
Newport Beach, CA 92660
Special Conditions
June 11, 2019
939 Via Lido Soud
With reference to the plans currently under consideration at the above referenced address to
remove the existing gangway and U-shaped float, and replace with a new gangway lobe,
gangway and reconfigured U -shape float, the following conditions will now be in effect:
1. The project proponent is aware of the Harbor Permit Policies (Council Policy H-1) and Title
17 of the City of Newport Beach Municipal Code. The project proponent understands that the
above referenced project and structure(s) are subject to all applicable federal, state, county and
City of Newport Beach statutes, rules, ordinances, laws, and regulations, including but not
limited to these Policies and Codes.
2. Any future work on the above mentioned structure(s) beyond that which is expressly
permitted herein may require permits from the City of 'Newport Beach and any other applicable
agencies. Painting and work considered to be cosmetic in nature does not require a permit.
This approval does not extend to any changes to the operational characteristics, structures, and
project beyond those expressly included as part of this approval.
3. The conditions set forth in this document pertain to the proposal to remove the existing
gangway and U -shape float, and replace with a new gangway lobe, gangway and reconfigured U.
shape float under consideration. Any future modifications or alterations may require additional
and/or updated conditions which may override or change these conditions. These conditions
supersede all past conditions associated with this property.
4. Only marine oriented uses are allowed on the pier, pier platform, gangway and float. Patio
furniture, plants, etc. are not permitted.
5. In accordance with subsections A and B.3 of Newport Beach Municipal Code section
10.08.030, as amended from time to time or any successor statutes thereto, the project
proponent shall obtain the proper permits for equipment and materials storage. Such
subsections read "A. Except as otherwise provided in this section, no person shall use any
public street, sidewalk, alley or parkway or other public property for the purpose of storing or
displaying any equipment, materials or merchandise, or any other commercial purpose. B.
Public streets, sidewalks, alleys, or parkways may be used for the purpose of selling, storing, or
displaying any equipment, material, merchandise or for other commercial purposes in the
following cases:... 3. For the temporary storage of construction equipment or material provided
a permit is issued pursuant to Chapter 12.62 of this Code and the storage is consistent with
provisions of the Uniform Building. Code."
6. The project shall be implemented in conformance with the current version of the City of
Newport Beach Local Coastal Program Coastal Land Use Plan.
Page 1 of 2
4-11
7. The project proponent acknowledges that the noise regulations in Newport Beach Municipal
Code Section 10.28.040, as amended from time to time or any successor statute thereto, apply.
Such Section 10.28.040 reads, in pertinent part: "A. Weekdays and Saturdays. No person shall,
while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or
any other related building activity, operate any tool, equipment or machine in a manner which
produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or
resides in the vicinity, on any weekday except between the hours of seven a.m. and six -thirty
p.m., nor on any Saturday except between the hours of eight a.m. and six p.m. B. Sundays and
Holidays. No person shall, while engaged in construction, remodeling, digging, grading,
demolition, painting, plastering or any other related building activity, operate any tool, equipment
or machine in a manner which produces loud noise that disturbs, or could disturb, a person of
normal sensitivity who works or resides in the vicinity, on any Sunday or any federal holiday."
8. Your side property lines extend in the water along their same bearing. Vessels shall not
encroach upon the neighbor's property on either side.
9. Vessels berthed at the float shall not extend past the end of the float by more than fifty
percent (50%) of the beam (i.e. overall vessel width) per the City Council's decision on June 11,
2019 and per Resolution 2019-48.
10. All required insurance shall be maintained in full force and effect during the pendency of this
Approval In. Concept.
11. To the fullest extent permitted bylaw, applicant shall indemnify, defend and hold harmless
the County of Orange, its Board of Supervisors, the City, its City Council, its boards and
commissions, officials, officers, employees, and agents from and against any and all claims,
demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever which may arise from or in
any manner relate (directly or indirectly) to City's approval of this Approval in Concept, the
applicant's exercise of this Approval. in Concept, the activities of the applicant carried on under
authority of this Approval in Concept, and/or any related California Environmental Quality Act
determinations. This indemnification shall include, but not be limited to, damages awarded
against the County or the City, if any, costs of suit, attorneys' fees, and other expenses incurred
in connection with such claim, action, causes of action, suit or proceeding whether incurred by
applicant, County or City, and/or the parties initiating or bringing such proceeding. The applicant
shall indemnify the County or City for all of County or City's costs, attorneys' fees, and damages
which County or City incurs in enforcing the indemnification provisions set forth in this condition.
The applicant shall pay to the County and/or City upon demand any amount owed to the County
or City pursuant to the indemnification requirements prescribed in this condition.
Chris Miller, Public Works Date
Applicant Signature Print Name Date
Joint Pier Applicant Signature (if applicable) Print Name Date
Page 2 of 2
4-12
ATTACHMENT B
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CITY OF
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__ z NEWPORT BEACH
C1-11:09 'P City Council Staff Report
May 28, 2019
Agenda Item No. 15
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Webb, Public Works Director - 949-644-3330
dawebb@newportbeachca.gov
PREPARED BY: Chris Miller, Public Works Administrative Manager,
cmiller@newportbeachca.gov
PHONE: 949-644-3043
TITLE: 939 Via Lido Soud Residential Dock Reconfiguration — Appeal of
Harbor Commission's Decision
ABSTRACT -
The applicant at 939 Via Lido Soud, Mr. Conzelman, is appealing the Harbor
Commission's denial of his proposed residential dock reconfiguration ("Project") based
upon its findings that the Project would negatively impact (1) navigation; (2) adjacent
property owners; and (3) existing harbor uses as provided in City Council Policy H-1. For
City Council's consideration is whether to affirm, modify or reverse the Harbor
Commission's decision.
RECOMMENDATION:
a) Conduct a public hearing;
b) Pursuant to Section 15270 of the California Environmental Quality Act (CEQA)
Guidelines, projects which a public agency rejects or disapproves are not subject to
CEQA review;
c) The City Council may either affirm, modify or reverse the Harbor Commission's denial
of the proposed dock reconfiguration at 939 Via Lido Soud. By either modifying or
reversing the Harbor Commission's decision, the City Council authorizes staff to issue
an Approval in Concept for the project; and
d) If the City Council affirms the Harbor Commission's decision, adopt Resolution 2019-
48, A Resolution of the City Council of the City of Newport Beach, California, Affirming
the Harbor Commission's Denial of an "Approval In Concept" (Project File No. 2585-
2018) for the Removal and Replacement of a Dock System at the Property Located
at 939 Via Lido Soud.
FUNDING REQUIREMENTS:
Beyond the related staff time needed to administer and process this item, there is no
anticipated fiscal impact related to this item.
4-13
939 Via Lido Soud Residential Dock Reconfiguration —
Appeal of Harbor Commission's Decision
May 28, 2019
Page 2
DISCUSSION:
Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats may
not extend beyond the Pierhead Line unless approved by Council Policy. In 2018, City
Council Policy H-1 was amended so that piers or floats may not extend beyond the
Pierhead Line unless a determination is made that the extension will not negatively
impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor uses.
Existing Permit and Residential Dock Configuration
The applicant at 939 Via Lido Soud has a residential dock on the easterly tip of Lido Isle,
opposite Bay Island, and adjacent to the designated short-term anchorage area (See
Attachment A). The float is currently configured as a U -shape and is also slanted to the
north. According to the applicant's current permit, the existing float is permitted to extend
up to the Pierhead Line. However, as seen on the aerials, the existing float extends
approximately 9 feet beyond the Pierhead Line (as measured on the southern edge of
southern finger).
2018 Application for Residential Dock Reconfiguration
In October 2018, the applicant submitted a proposal to remove the existing pier -approach,
gangway and U -shape float, and replace it with a new gangway lobe, gangway and
reconfigured U -shape float which would extend 16 feet beyond the Pierhead Line (See
Attachment B). Staff denied the request based on City Council Policy H-1 which does not
allow floats to extend beyond the Pierhead Line unless approved by the Harbor
Commission.
As indicated above. Citv Council Policv H-1 (also see Attachment Cl states:
Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats
may not extend beyond the Pierhead Line unless approved by Council policy.
The Harbor Commission may permit a pier or float to extend beyond the Pierhead
Line if the Harbor Commission makes a determination that such extension will not
negatively impact (1) navigation; (2) adjacent property owners; and (3) existing
harbor uses.
Any permit issued by the City of Newport Beach before July 12, 2018, which allows
a pier or float to extend beyond the Pierhead Line, is ratified by the City Council and
may continue as valid unless and until such pier or float is extended or enlarged.
Since the application seeks to extend the float beyond the Pierhead Line, City Council
Policy H-1 is triggered, thus requiring the Harbor Commission to make the findings set
forth above in order to grant the permit.
4-14
939 Via Lido Soud Residential Dock Reconfiguration —
Appeal of Harbor Commission's Decision
May 28, 2019
Page 3
Harbor Lines Defined
To provide context when reviewing Harbor Lines and their significance in the harbor, a
brief explanation is below:
The original Harbor Lines map was approved by the federal government in 1917 then
revised periodically until the most recently used 1951 Army Corps of Engineers ("Corps")
approved Harbor Lines map. This 1951 map is the version the City references for mapping
the harbor lines in the City's GIS system.
Harbor lines note the relationship of structures to the channel along the harbor's
perimeter. Harbor lines are generally straight lines with a "station number" at either end
that help define a particular area of the harbor. Wherever the land curves, there is a new
station number defining the beginning of the next line.
Bulkhead Line: This line generally, but not always, follows the physical bulkhead around
the harbor. As described above, the Bulkhead Line is defined by Bulkhead Station
Numbers at every point where the land curves. Lastly, the Bulkhead Line denotes either:
(1) the division between tidelands and upland (most cases); or (2) the division between
tidelands and the water landward of the Bulkhead Line (i.e. private waterways).
Pierhead Line: This line is parallel to, and generally 50 to 80 feet offset from, the
Bulkhead Line. Its purpose is to delineate the distance a float may extend out into the
water or channel.
Project Line: This line is parallel to, and generally 10 to 20 feet offset from the Pierhead
Line. The Project Line denotes the dredge limit line for the Corps. (e.g. The Corps dredges
from Project Line to Project Line in any given channel). The Project Line creates a
dredging "buffer zone" from the Pierhead Line to account for the usual sloughing that
occurs when dredging the federal channel.
(Note: The harbor lines were originally developed over one hundred years ago when the
vision for the future harbor was slightly different from today's reality. Also, via earlier
versions of City Council Policy H-1, the City Council previously allowed floats beyond the
Pierhead Line in certain parts of the harbor, generally to account for changing beach
conditions and the effect of those beaches on the slips. It is important to note the Corps'
indifference on any extensions beyond the Pierhead Line. Their practical response, as
demonstrated during the last federal dredge project in 2012, was to simply dredge around
any impediment, like a float, therefore creating a buffer area.)
Harbor Commission Appeal
The applicant appealed the Public Works Director's denial to the Harbor Commission,
and a Public Hearing was held on February 13, 2019 (See Attachment D). The Harbor
Commission discussion mainly focused on the proximity of the property to the adjacent
channel and anchorage area.
4-15
939 Via Lido Soud Residential Dock Reconfiguration —
Appeal of Harbor Commission's Decision
May 28, 2019
Page 4
As demonstrated in Attachment A, the residential dock is located on a curve on the
easterly tip of Lido Isle, opposite Bay Island and across from the designated short-term
anchorage area and the Newport Harbor Yacht Club mooring field at the convergence of
two navigable channels. The channel adjacent to the anchorage area is 256 feet wide
and is very active and well used. Additionally, under the existing configuration with a slip
width of 21 feet, it is conceivable that an 82 foot vessel could potentially berth in the
existing slip. In this hypothetical, worst case scenario, a vessel of this size could legally
extend approximately 16 feet beyond the Project Line as measured from the inside of the
southern finger. Conversely, the Project as proposed, would accommodate an 85 foot
vessel and extend potentially 18.5 feet beyond the Project Line. NBMC 17.25.020(C)(2)
states that vessels may not extend bayward beyond the end of the slip a distance of more
than the vessel beam.
With a float extending beyond the Pierhead Line coupled with a vessel extending even
farther beyond, the Harbor Commission was concerned with the lasting effect on
navigation. The Harbor Commission upheld the Public Works Director's denial 6-1 with
Commissioner Drayton voting against.
City Council Appeal
The applicant appealed the Harbor Commission's denial to the City Council within the
required timeframe (See Attachment E). The proposed application conforms to the
applicable provisions of Newport Beach Municipal Code Title 17 entitled "Harbor Code."
In addition, the applicant is requesting a modification to the City of Newport Beach
Waterfront Project Guidelines and Standards Harbor Design Criteria for Commercial and
Residential Facilities ("Harbor Design Guidelines") as it relates to the location of the piles
at the end of the finger floats beyond the Pierhead Line. Figure No. 10A of the Harbor
Design Guidelines describes the relationship between the Pierhead Line and the Project
Line with respect to future, potential federal dredging (See Attachment F). However, the
City's Building Official may allow this request via a modification if the strict letter of the
Harbor Design Standards does not lessen the health, accessibility, life and fire safety or
structural requirements. In this case, the applicant is stating that piles at the end of the
finger floats are a necessary structural requirement to adequately support the finger
length and the corresponding large vessel.
Section 17.65.040(F) authorizes the City Council to affirm, modify or reverse the original
decision after consideration of an appeal. Additionally, Section 17.50.040(A) authorizes
the City to issue Harbor Development Permits upon the determination that a new permit
and/or a revision to an existing permit conforms to the Harbor Design Guidelines and all
applicable standards and policies in conjunction with plan reviews by the Public Works
Department. As detailed in the attached resolution, the project conforms to the Harbor
Design Guidelines and applicable standards and policies of the City with the exception of
the aforementioned two piles at the end of the finger floats which the Building Official may
grant as a modification.
4-16
939 Via Lido Soud Residential Dock Reconfiguration —
Appeal of Harbor Commission's Decision
May 28, 2019
Page 5
If the City Council wishes to modify or reverse the Harbor Commission's decision, the City
Council would direct staff to modify Resolution No. 2019-48 as applicable, return to City
Council for review and approval (which would include CEQA review) and then direct staff
to issue an Approval in Concept for the proposed project as modified, subject to any
special conditions, and provided the project complies with all applicable codes.
ENVIRONMENTAL REVIEW:
Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines,
projects which a public agency rejects or disapproves are not subject to CEQA review.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item). The public hearing was also
noticed to all residents within a 300' radius per NBMC 21.62.020(B)(2)(c) and published
in the newspaper.
ATTACHMENTS:
Attachment A
— Vicinity Map (Aerials)
Attachment B
— Proposed Dock Reconfiguration
Attachment C
— City Council Policy H-1
Attachment D
— Harbor Commission Minutes (February 13, 2019)
Attachment E
— Appeal
Attachment F —
Harbor Design Guidelines (excerpt)
Attachment G
— Resolution No. 2019-48
4-17
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ATTACHMENT B
6351 Industry Way, Westminster 92683
-
oocx « r[eR 'iE.RBte[ - SWIFT SLIP DOCK & PIER BUILDERS, INC PhoneJ949) 631-3121
a
Fax: (714) 509-0618
cuENr. BL � � 4117119
CONZELMAN, MARK --
DRAWN: Checked REVISION DATE:
SITE:
939 VIA LIDO SOUD NB, CA. PROPOSED
AMENDMENTS:
DESCRIPTION
I
(8)18" Square Pile
PROJECT LINE _ — — — — — — — —
4' 9' T i23' '-1--1
❑ -
PIERHEAD LINE _ _ w `1 _
❑ ❑ 43
62 -6"
DOCK: 1,201 FT2
7'X68.5'=479.5 FT2 ❑ ❑
7'X68.5'=479.5 FT2 f
6' X23'= 138 FT2 3'
4'X20'= 80 FT2 1
4'X4'= L2=8FT2X3=24 FT2 2
GANGWAY:
3'X24'=72 FT2 1
PIER: 196 FT2 ❑ ❑
10'X28'=280 FT2-17'-11" wr 10'
4'X4'=1 6 FT2
3'x24' Gangway
TOTAL: 1,765 FT2
f
' 'X4'LOBE
9' 3"
BULKHEAD LINE
1
DATE
4-21
ATTACHMENT C
HARBOR PERMIT POLICY
Background
Newport Beach Municipal Code Section 17.35.030(A) provides that piers and floats
may not extend beyond the pierhead line unless approved by Council policy.
Policy
The Harbor Commission may permit a pier or float to extend beyond the pierhead
line if the Harbor Commission makes a determination that such extension will not
negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing
harbor uses.
Any permit issued by the City of Newport Beach before July 12, 2018, which allows
a pier or float to extend beyond the pierhead line, is ratified by the City Council
and may continue as valid unless and until such pier or float is extended or
enlarged.
History
Adopted H-1- 6-1-1964
Amended H-1 -10-19-1964
Amended H-1 -10-26-1964
Amended H-1 - 4-27-65
Reaffirmed H-1 - 8-30-1966
Amended H-1 -1-9-1967
Amended H-1 - 7-24-1967
Amended H-1 - 6-24-1968
Amended H-1 - 8-19-1968
Amended H-1 -12-23-1968
Amended H-1 -1-26-1970
Reaffirmed H-1 - 3-9-1970
Reaffirmed H-1 - 2-14-1972
Amended H-1 - 8-14-1972
Amended H-1 - 6-25-1973
Reaffirmed H-1 -12-10-1973
Amended H-1 -12-17-1973
Amended H-1 - 6-10-1974
Reaffirmed H-1 -11-11-1974
Amended H-1 - 3-10-1975
Amended H-1 - 4-28-1975
4-22
Amended H-1 - 5-27-1975
Amended H-1 -10-28-1975
Amended H-1 -12-8-1975
Amended H-1 - 5-10-1976
Amended H-1 -10-26-1976
Amended H-1 -11-22-1976
Reaffirmed H-1 -1-24-1977
Amended H-1 - 5-23-1977
Amended H-1 - 5-22-1978
Amended H-1 -12-11-1978
Amended H-1 - 3-12-1979
Amended H-1 - 6-25-1979
Amended H-1 - 6-9-1980
Amended H-1 - 6-23-1980
Amended H-1 -11-23-1981
Amended H-1 - 6-28-1982
Amended H-1 -10-12-1982
Amended H-1 -10-25-1982
Amended H-1 - 6-27-1983
Amended H-1 -1-14-1985
Amended H-1 - 3-25-1985
Amended H-1 - 6-24-1985
Amended H-1 - 6-22-1987
Amended H-1 - 6-13-1988
Amended H-1 -11-28-1988
Amended H-1 - 6-26-1989
Amended H-1 - 9-25-1989
Amended H-1 -11-27-1989
Amended H-1 - 5-14-1990
Amended H-1 - 6-25-1990
Amended H-1 - 4-8-1991
Amended H-1 - 6-24-1991
Amended H-1 -10-28-1991
Reaffirmed H-1 -1-24-1994
Amended H-1 - 6-27-1994
Amended H-1 - 6-26-1995
Amended H-1 - 3-25-1996
Amended H-1- June 8,1998
Amended H-1 -12-14-1998
Amended H-1 - 5-8-2001
Amended H-1 - 9-10-2002
Amended H-1 -10-28-2003
Amended H-1 - 4-13-2004
4-23
Amended H-1 -1-8-2008
Amended H-1 - 5-22-2018
4-24
ATTACHMENT D
NEWPORT BEACH HARBOR COMMISSION REGULAR MEETING MINUTES
Council Chambers — 100 Civic Center Drive, Newport Beach CA
Wednesday, February 13, 2019
6:30 PM
1) CALL MEETING TO ORDER
The meeting was called to order at 6:30 p.m.
2) ROLL CALL
Commissioners:
Dave Girling, Chair
Scott Cunningham, Vice Chair
John Drayton, Secretary
Ira Beer, Commissioner
Paul Blank, Commissioner
Bill Kenney, Commissioner
Don Yahn, Commissioner
Staff Members: Kurt Borsting, Harbormaster
Yolanda Summerhill, Assistant City Attorney
Armeen Komeili, Deputy City Attorney
Chris Miller, Public Works Manager
Jennifer Biddle, Administrative Support Specialist
3) PLEDGE OF ALLEGIANCE — Commissioner Drayton
4) PUBLIC COMMENTS
None
5) APPROVAL OF MINUTES
Minutes of January 9, 2019, Regular Meeting
Chair Girling announced the recording equipment malfunctioned at the January meeting, causing staff to
prepare the draft minutes from notes and memory. Commissioners, the public, and parties appearing at
the January meeting may offer revisions, but the Commission will review the minutes again in March before
approving them.
Commissioner Kenney recommended Mr. Mosher's proposed revisions be incorporated into the minutes.
Chair Girling clarified that staff prepared draft minutes, and other staff, some Commissioners and some of
the parties to the meeting reviewed and provided input to the draft minutes.
Commissioner Kenney proposed those comments be incorporated into the minutes as well. With respect
to the 2888 Bayshore Drive appeal, the staff report recommended the Harbor Commission find the project
exempt from CEQA, but his substitute motion specifically stated the project is subject to the California
Environmental Quality Act (CEQA).
Chair Girling requested the first instance of "LCP" in the final paragraph on page 2 state "Local Coastal
Plan (LCP)."
4-25
6) PUBLIC HEARING(S)
Residential Dock Reconfiguration at 939 Via Lido Soud — Appeal
The applicant at 939 Via Lido Soud is appealing the Public Works Director's denial of the
proposed residential dock reconfiguration. For the Harbor Commission's consideration is
the decision whether to uphold, amend, or reverse the Public Works Director's decision to
deny an Approval in Concept ("AIC") requesting the residential float to extend beyond the
Pierhead Line.
Recommendation:
1) Conduct a public hearing;
2) Find the project exempt from the California Environmental Quality Act ("CEQA") pursuant
to Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California
Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant
effect on the environment; and
3) The Harbor Commission may either uphold, amend, or reverse the Public Works Director's
denial of the proposed residential dock reconfiguration at 939 Via Lido Sound.
Commissioners Blank and Drayton disclosed longstanding personal relationships with members of the
public who may speak to the item. The relationships will in no way influence their ability to make fair and
impartial decisions regarding the matter.
Commissioners Beer and Yahn disclosed sporadic conversations with Mr. Swift regarding other business,
but the relationship will not affect in any way their decisions.
Public Works Manager Chris Miller reported the item is an appeal of the Public Works Director's decision
to deny the proposed residential dock configuration. The Harbor Commission may either uphold, amend,
or reverse the Director's decision. An aerial photo shows the neighboring anchorage area and the
approximate distance of 200 feet between the anchorage area and the Project Line. The existing dock is
built at an angle or slant to the house, and its fingers extend 6-6.5 feet beyond the Pierhead Line. An aerial
photo is a good but not perfect representation of the existing conditions. Council Policy H-1, which became
effective in May 2018, states no pier shall extend beyond the Pierhead Line unless it has been previously
permitted, in which case the owner may build to the same position. The proposed dock reconfiguration will
align the dock with the house and extend the dock fingers to the Project Line. According to a previously
approved drawing in the City's records, the float is shown to extend to the Pierhead Line but not beyond.
The previously approved configuration is dated September 10, 1981 with "OK 2-9-98" handwritten on its
face. The two dates may be explained through staff's practice of pulling the last drawing for a dock, in this
case a drawing from 1981, and updating it with new drawings, in this case in 1998. If the Harbor
Commission chooses to reverse the Director's decision and approve the proposed dock reconfiguration, it
must find the extension does not negatively impact navigation, does not negatively impact adjacent property
owners, and does not negatively impact existing harbor uses.
In reply to Commissioner Beer's question, Public Works Manager Miller indicated the applicant's drawing
shows the distance between the Pierhead Line and the Project Line as 15 feet. Public Works Manager
Miller had not measured the distance. Commissioner Beer reported drawings for the properties immediately
adjacent to the north and south of the subject property show the distance between the Pierhead Line and
the Project Line as 20 feet. Public Works Manager Miller advised that the distance is 20 feet for most
locations in the Harbor, but he seemed to recall some locations with a distance of 10 feet.
In response to Commissioner Kenney's inquiries, Public Works Manager Miller believed Council Policy H-
1 allows a dock to extend the same distance beyond the Pierhead Line rather than allows the same amount
of square footage to extend beyond the Pierhead Line. The first decision for the Harbor Commission is
whether the float can extend beyond the Pierhead Line. If the Harbor Commission allows the float to extend
beyond the Pierhead Line, the next decision is whether the float can extend to the existing distance of 6-
6.5 feet beyond the Pierhead Line or to the Project Line as the applicant proposes.
4-26
In answer to Commissioner Drayton's query, Public Works Manager Miller explained the 1981 drawing does
not show an extension beyond the Pierhead Line. Staff could not find a prior approval for the float to extend
any distance beyond the Pierhead Line.
In reply to Commissioner Beer's inquiry, Public Works Manager Miller advised that the existing dock is
unpermitted compared to the approved drawings on file.
In answer to Commissioner Yahn's questions, Public Works Manager Miller remarked that the margin of
error for the accuracy of aerial photography is not very much, perhaps one foot.
Commissioner Beer shared his calculations for maximum vessel size for the applicant's and six adjacent
property owners' docks. The applicant's existing dock could accommodate a vessel of 76.5 feet. A vessel
of this size would extend 11.5 feet beyond the Project Line. For the dock at 941 Via Lido Soud, the largest
vessel would fall 4 feet short of the Project Line. For the docks at 940 and 944 Via Lido Soud, the largest
vessel would fall at the Project Line. For the dock at 933 Via Lido Soud, the largest vessel would extend
12 feet 5 inches beyond the Project Line. For the dock at 929 Via Lido Soud, the largest vessel would
extend 7 feet beyond the Project Line. For the dock at 925 Via Lido Soud, the largest vessel would extend
12 feet beyond the Project Line. The applicant's proposed configuration would accommodate an 85 -foot
vessel, and it would extend 23 feet beyond the Project Line.
Commissioner Kenney reminded Commissioners that the navigable channel was 220 feet wide. The
navigable channel between the anchorage and the Newport Harbor Yacht Club mooring field is sometimes
cluttered.
Chair Girling clarified that the existing dock is not permitted to extend beyond the Pierhead Line. Therefore,
any extension would not be eligible for the preexisting conditions listed in Policy H-1.
Pete Swift, appellant representative, reported the 1981 drawing on file with the City could show an incorrect
location for the Pierhead Line because satellite imagery, GPS, GIS, and aerial photographs were not
common in 1981. He thought the criteria for allowing a dock would be merit, use of the dock, the effect on
the area, the owner's intent to moor his boat or to generate profit, the long-term effect, and increased safety.
The three criteria stated in Policy H-1 are simpler. Between the subject property and Via Koron, there are
64 docks, 50 of which extend to or beyond the Project Line. The final house on Via Lido Soud is 941, which
would be a good point to disallow extensions to the Project Line. If the City disallows this project and
projects for the other 49 houses, people could build docks without obtaining permits. The distance from
the project site to the anchorage is 250 feet and from the project site to mooring field D is 300 feet. Because
of the distance, the proposed dock would not be a threat to navigation. Thirty-foot sailboats on a race
course would have sufficient room to navigate.
Mark Conzelman, applicant, indicated he proposed a dock reconfiguration so that the dock would be
uniform with neighbors' docks, could accommodate as many Harbor 20s as possible for regattas, and could
accommodate his wife's dream boat.
Gary Thorne commented that the Conzelmans support boating and sailing in the Harbor. Rescue boats
and chase boats for regattas are allowed to use their dock. The Conzelmans are hospitable and provide
first aid to boaters. The Conzelmans' dock is not an issue for laying out a sailboat race course.
Dennis Lockhard suggested 220 feet was sufficient width for a navigable waterway. The proposed
reconfiguration will enhance navigation and existing Harbor uses and increase the safety of boaters in the
area.
Philip Thompson related several times Mr. Conzelman had offered assistance or the use of his dock to
boaters. The Conzelmans have received commendations and awards for providing service to the
community. A dock extending an additional 8 feet into the Harbor would not affect navigation or other
boaters.
4-27
In reply to Commissioner Blank's query, Public Works Manager Miller reported there are no restrictions
preventing the applicant from relocating the float landward.
Commissioner Blank commended Mr. Conzelman for his generosity and service to the community.
Commissioners were very careful in drafting the language for Policy H-1. He strongly opposed unpermitted
extensions beyond the Pierhead Line. The applicant should consider moving the float system closer to the
bulkhead. The dock is located at the convergence of two navigable channels, which are very congested.
He supported bringing the dock into compliance at the current time.
Chair Girling opened and closed the public hearing with no public comment.
Mr. Swift indicated the applicant did not want to build the dock the width of the boat and put the dock out
as far as possible. The seawalls are some of the oldest in the Harbor, and dredging will cause them to fail.
He has already moved the dock 15-20 feet towards shore and done everything possible to fit the dream
boat on the dock.
In answer to Commissioner Beer's question, Mr. Swift reported the proposed vessel's overall length is 79
feet. The boat's bow is going to come up over the dock 6-7 feet. He wants to get it as close as possible
so they can board on the swim step.
In reply to Commissioner Drayton's query, Public Works Manager Miller advised that staff has not received
any communications from adjacent properties or neighbors.
Commissioner Drayton explained that Commissioners drafted the language of Council Policy H-1 in
consideration of the Commission hearing appeals and the Commission's need for some discretion. Given
the prevailing winds and the location of docks in the area, he was not concerned about the proposed dock
extending 7 feet past the Project Line.
Commissioner Beer explained that a 79 -foot vessel put in the slip properly will extend 17 feet. An 85 -foot
vessel would extend 23 feet past the Project Line. For the four adjacent properties, the average that any
vessel could possibly protrude is just under 11 feet, which is consistent with the existing condition. He
encouraged the applicant to move the dock further back in order to accommodate the dream vessel or to
limit the beam width so that it is more consistent with the existing condition. The difference between the
existing dock and the proposed dock creates an opportunity for more docks in the area to extend beyond
the Pierhead Line. The area is very congested in the summer. The fact that the existing dock is not
permitted is an important consideration.
Commissioner Kenney advised that the dock extension, if approved, will be approved in perpetuity. Docks
along Via Lido Soud and Via Lido Nord project beyond the Pierhead Line and may be to and beyond the
Project Line, but the Harbor Commission cannot do anything about those docks. This is a difficult decision
for the Harbor Commission.
Chair Girling noted Council Policy H-1 does not require the Harbor Commission to allow an extension if the
configuration meets the three criteria. He questioned whether the proposed configuration would affect
adjacent property owners. Allowing the proposed configuration would create a precedent that the Harbor
Commission did not want to create.
Commissioner Blank moved to uphold the Director's decision denying the application. Commissioner Beer
seconded the motion. The motion carried by the following roll call vote:
Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Beer, Commissioner Blank, Commissioner
Kenney, Commissioner Yahn
Nays: Commissioner Drayton
Abstaining: None
Absent: None
4-28
7) CURRENT BUSINESS
Review of Mooring Slip and Rental Initial Application Fee
The City Council reviewed the Harbor Department's Fees and Rents at their January 22,
2019 City Council meeting and requested the Harbor Commission to review on fee entitled
"Mooring Slip and Rental Initial Application Fee.
Recommendation:
1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
2) Recommend to the City Council removing this proposed fee from further consideration as
it is not common practice in the boating community.
Harbormaster Kurt Borsting reported in August 2018 the Harbor Commission reviewed and recommended
the City Council adopt fee and rent updates, and the Council reviewed and approved all but one update on
January 22, 2019. The City Council asked the Harbor Commission to reconsider the one-time mooring and
slip initial application fee of $17. In concept, a new customer to the Harbor would pay the fee to cover staff
time for processing the application. Several Council Members felt the fee was not usual or customary in
either municipal or private marinas. In addition, the fee could be perceived as not being customer -friendly.
Incorporating the fee in the City's software proved to be a challenge as well. Staff anticipated the proposed
fee would generate approximately $5,100 in annual revenue; therefore, eliminating the fee would not result
in a substantial amount of lost revenue.
In answer to Commissioner Blank's question, Harbormaster Borsting understood the fee would apply to any
new customer regardless of the length of his stay in the Harbor.
Commissioner Blank suggested the cost for processing a new permittee application should be included in
the mooring transfer fee. Transient visitors should not be burdened with such a fee. In answer to
Commissioner Kenney's inquiry, Commissioner Blank clarified his belief as any administrative burden
placed on staff for processing a mooring transfer is covered within the existing mooring transfer fee. An
additional $17 is not warranted to administer that process. In other words, the fee should not be charged
to anyone.
Chair Girling requested public comment and received none.
Commissioner Beer moved to recommend the City Council remove the mooring and slip initial application
fee from further consideration. Commissioner Kenney seconded the motion. The motion carried by the
following roll call vote:
Ayes: Chair Girling, Vice Chair Cunningham, Commissioner Drayton, Commissioner Beer, Commissioner
Blank, Commissioner Kenney, Commissioner Yahn
Nays: None
Abstaining: None
Absent: None
Harbor Commission 2018 Objectives: Ad Hoc Committee Updates
Each ad hoc committee studying their respective Functional Area within the Commission's
2018 Objectives will provide a progress update.
Recommendation:
1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
4-29
14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
2) Receive and file.
Functional Area 1: Vice Chair Cunningham reported he attended the California Marine Affairs and
Navigation Conference (CMANC), where he learned a lot. Beneficial reuse of sediment as a means to
reduce costs has a lot of momentum up and down the coast. He will attend the annual CMANC trip to
Washington, DC. The subcommittee is reviewing the entire RGP-54 process in anticipation of renewing
the permit in 2020. Bringing a hydraulic dredger to the Harbor is a high priority in 2019.
In reply to Commissioner Kenney's inquiries, Public Works Manager Miller advised that technology exists
to treat dredged material. The treatment techniques are most effective on small -quantity projects. For the
City and deep -channel dredging, hauling dredged material is more economical than treating it. Test cases
or small specific projects could utilize onsite treatment, but finding the space to do it is challenging. Treating
material could be feasible for a small project such as dredging under a dock.
Functional Area 2: Commissioner Drayton advised that efforts to enhance code enforcement have
continued. The subcommittee will meet with the Mooring Owners Association to discuss issues of mutual
interest.
Functional Area 3: Commissioner Beer related that efforts have been focused on establishing policies for
modifications to mooring sizes. Data has led the subcommittee to believe a more concise and objective
method to determine which fields and which rows can accommodate certain sizes of vessels is possible.
Functional Area 4: Commissioner Kenney indicated the review of Title 17 continues. The next topic for
discussion is marine activities permits. Hopefully, by late April the subcommittee can begin scheduling
stakeholder meetings.
Functional Area 5: Chair Girling stated the subcommittee is rescheduling meetings with charter fleet
operators.
Functional Area 6: Commissioner Blank reported the subcommittee is working to identify constituent groups
and schedule outreach sessions for them. The visioning process is running parallel to the General Plan
Update.
Harbormaster Update — January 2019
The Harbormaster is responsible for on -water management of the City's moorings, the
Marina Park Marina, and code enforcement on the water. This report will update the
Commission on the Harbor Department's activities for January 2019.
Recommendation:
1) Find this action exempt from the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title
14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
2) Receive and file.
Harbormaster Borsting reported the Harbor Department used a California Department of Fish and Wildlife
grant to purchase a portable trailer, 1,000 feet of boom material, absorbents, and other equipment, which
can be utilized for oil spills in the Harbor. The grant included training for 16 staff members and an Orange
County Deputy Sheriff. Members of the Council and Harbor Commission attended a media event to
highlight the new equipment. In January, staff met with various stakeholders in an effort to increase
outreach. Currently, 48 live -aboard permittees reside in the Harbor. Staff inspected 26 live -aboard vessels
in January.
4-30
Chair Girling and Commissioner commended Harbormaster Borsting for making great progress with the
live-aboards.
In reply to Commissioners' questions, Harbormaster Borsting indicated staff observes the operability of live -
aboard vessels as the vessels travel to Marina Park for the inspection. Staff is aware of the preregistration
deadline to apply for a grant to dispose of abandoned vessels. In addition, staff is working to expend the
remaining grant funds prior to the deadline. The oil spill trailer is temporarily parked at Marina Park. Staff
is searching for long-term parking adjacent to the Harbor and will be mapping deployment locations. Two
Harbor Department pontoon -style vessels are rentals. Staff has developed specifications for a patrol boat
but is now looking at a bid process for two different styles of vessels, the patrol boat and a work boat. Code
Enforcement Supervisor Matt Cosylion will work with the Harbor Department through June 30. In the
upcoming budget, staff requested an extension of his time with the Department by 12 months.
Commissioner Blank remarked that during the Council planning session, Assistant City Manager Carol
Jacobs advocated for retaining Mr. Cosylion in the Harbor Department for another year. Some Council
Members and the Mayor seemed amenable.
Commissioner Cunningham requested staff confirm permits have been issued for docks when staff
observes dock construction. Public Works Manager Miller commented that the dock industry notifies staff
when other people are working without a permit.
Public Works Manager Miller reported a letter has been sent to the Coast Guard regarding the City's request
for the West Anchorage. The goal is to have a program in place in June. An engineering study has been
conducted. Commissioner Kenney advised that constituents had contacted him in support of the West
Anchorage.
8) COMMISSIONER ANNOUNCEMENTS (NON -DISCUSSION ITEM)
Vice Chair Cunningham announced the third annual Harbor underwater cleanup is scheduled for June 1.
Commissioner Blank referred to an article in the Stu News regarding Harbor -related businesses. The
Harbor Commission approved a list of businesses and amenities needed to maintain a healthy, vibrant, and
functioning Harbor.
9) QUESTIONS AND ANSWERS WITH STAFF ON HARBOR -RELATED ISSUES
None
10) MATTERS WHICH COMMISSIONERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR
DISCUSSION, ACTION, OR REPORT (NON -DISCUSSION ITEM)
Chair Girling requested an item regarding Lower Castaways be scheduled for the April meeting as he would
not be present for the March meeting.
In reply to Chair Girling's query, Harbormaster Borsting felt, after a phone conversation with the Coast
Guard, the Coast Guard is open to discussing a navigational aid/lighthouse. Commissioner Kenney
recommended enhanced lighted markers for the jetties be discussed with the Coast Guard in conjunction
with navigational aids. Chair Girling requested an item on this topic in April or May. Staff should engage
Keith Yonkers in the next 30-60 days.
11) DATE AND TIME FOR NEXT MEETING: Wednesday, March 13, 2019
16) ADJOURNMENT
There being no further business to come before the Harbor Commission, the meeting was adjourned at
8:21 p.m.
4-31
ATTACHMENT E
��WPo�T Appeal Application
City Clerk's Office
100 Civic Center Drive / P.O. Box 1768
Newport Beach, CA 92658-8915 10
014 ,i V0 N 949-644-3005
Clerk's Date & Time Stamp
EC'EIVED
Appeals are time sensitive and must be received by the City Clerk specified ti0 PfFrfQ.J/ JM, _ w 0qcision or final
action by a decision -maker. It is advisable to consult with the Department managing the issue if there is
question with regards to appealing an action. This is an appeal of the:
❑ Community Development Director Action to the Planning Commission - $1,637
❑ Zoning Administrator Action to the Planning Commission - $1,637
❑ Planning Commission Action to the City Council - $1,637
❑ Hearing Officer Action to the City Council - $1,637
❑ Building Official/Fire Marshal Action to the Building/Fire Board of Appeals - $1,637
❑ Chief of Police Action on an Operator License to the City Manager - $710
❑ City Manager Action on a Special Events Permit to the City Council - $1,639
❑ Harbor Resources Manager Action on a Lease/Permit to the Harbor Commission - $100
❑ Harbor Resources Manager Action to the Harbor Commission - Hourly Cost
Uf Harbor Commission Action to the City Council - Hourly Cost
❑ Other - Specify decision -maker, appellate body, Municipal Code authority and fee:
Appellant Information:
Name(s):
Address: Y
City/State/Zip: 2
Phone:gq • t0 �1 .
Appealing Application Regarding:: p�
Name of Applicant(s): G h G0t-4 I-M,� , t � Date of Final Decision: �' 201
Project No.: J�'J' V Actility No..-
Application
o.:
Application Site Address:
De tion of application:
ICC.. �(/1.M.,
son(§)--rb Appeal (attach a separate
Signature of Appellant:
FOR OFFICE USE ONLY:
Date Ameal filed and Admini
City
cc:
if np
,
0
Date:
Fee received: ,2 -(_� a 1 20
J�.
Department Director, Deputy Director, Staff
Cashier Code: CDD004 (Harbor Appeal BR001)
F IUsetslClciklSharedlFonnslAppeal Application
Updated 12/14/2018
4-32
Conzelman Appeal
939 Via Lido Soud
Page 2
Federal Government which created Newport Harbor as we know it today. This action was taken prior to the
dedication of Newport Beach in 1936
We are appealing a decision of the Harbor Commission that withholds our right to build to the Project Line as
designated by the United States Army Corps of Engineers under the Rivers and Harbors Act of 1899 (30 Stat.
1151, Ch. 425, §11 (March 3, 1899); codified at 33 U.S.C. §404). The Project Line was designated by the
Secretary of the Army in a map published on December 26, 195o, by the Army Corps District Engineer, and
approved by the Secretary of the Army on April 15, 1951. The map designates 3 lines, the bulkhead line, the
pierhead line, and the project line. No subsequent map has been published by the Army Corps of Engineers.
The project line is the limit of federal dredging project responsibility (whether or not the Federal Government
carries out this responsibility). Newport Beach has approved floats for the mooring of private vessels
connected by gangways to the adjacent property to extend to the project line. The Harbor Commission limited
the float at 939 Via Lido Soud to the pierhead line. The existing float already extends beyond the pierhead line
as do many of the floats which surround Lido Island.
Municipal Code §17.35.03oA limits dock floats to the pierhead line "unless approved by Council Policy".
Council Policy H-1 allows for dock floats to extend beyond the pierhead line up to the project line if "such
extension will not negatively impact: (1) navigation; (2) adjacent property owners; and (3) existing harbor
uses." Many existing floats along Via Lido Soud extend not only beyond the pierhead line, but often beyond the
project line. In some cases the float is parallel to the shore at the project line with wide beamed vessels
extending beyond the project line.
The proposed float at the project line will not affect navigation, adjacent property owners, or existing harbor
uses. Most neighboring properties have floats that extend to or beyond the project line. From 8o1 to 941 Via
Lido Soud, almost every property extends to or beyond the project line, and every property extends beyond the
pierhead line. If there was to be an impact on navigation, it would have become apparent long before now. As
the adjacent property owners enjoy privileges denied to this property owner, there can be no negative impact
on adjacent property owners. The only adjacent harbor use is a temporary visitor anchorage which is more
than 220 feet from the project line. This is a more than adequate channel for the vessels to pass between the
project line and the anchorage boundaries.
The City recently adopted a Local Coastal Program. Municipal Code §21.30C.050 governs the construction of
docks at private residences. No portion of this provision limits the float to the pierhead line nor modifies the
provisions of Municipal Code §17.35.03oA or Council Policy H-1.
U.S. Army Corps of Engineer and California Coastal Commission approval will be required. Each agency will
apply its required statutory standards to the proposed project. There is nothing in either the Army Corps
regulations or the Coastal Commission regulations which would limit the property owner's pier to the pierhead
line.
4-33
February 19, 2019
DELIVERED VIA FIRST CLASS REGULAR MAIL
Swift Slip Dock and Pier Builders, Inc.
Attn: Pete Swift
6351 Industry Way
Westminster, CA 92683
RE: 939 Via Lido Soud — Notice of Harbor Commission's Decision
Mr. Swift,
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3311 1 949 644-3308 FAX
newportbeachca.gov/PublicWorks
Pursuant to Newport Beach Municipal Code Section 17.65.040(F), at a noticed public hearing of
the Harbor Commission held on February 13, 2019, the Harbor Commission upheld the Public
Works Director's denial of the Approval in Concept for the proposed residential dock
reconfiguration at 939 Via Lido Soud, Newport Beach, CA.
Pursuant to Newport Beach Municipal Code Section 17.65.020, the decision of the Harbor
Commission will become final unless appealed by the filing of the necessary form and fees to the
City Clerk's Office located at 100 Civic Center Drive, Newport Beach, CA 92660 within fourteen
(14) days of the decision.
If you have any questions or comments regarding this notice of decision, please feel free to
contact me directly at (949) 644-3043.
Regards,
Chris Miller
Administrative Manager
Public Works
ATTACHMENT F
CITY OF NEWPORT BEACH
WATERFRONT PROJECT GUIDELINES
AND STANDARD S
HARBOR DESIGN CRITERIA
COMMERCIAL & RESIDENTIAL
FACILITIES
Q
2017 EDITION
4-35
Outside limit of Pierhead Line (1)(4)
guidepile
Stringers
(TYP)
Fig. No. 10A
Project Line(l)-
Dock Fingers (3)
No piles within zone
between Pierhead and
Project lines (4) I _ Federal Dredging Limit (2)
(1) Pierhead and Project lines are established and managed by the
federal government.
(2) Portions of floating docks that extend into Federal Dredging
Limit must be removed by the dock owner at dock owner's
cost, when the federal goverment conducts periodic dredging
operations.
(3) Dock fingers must be designed and constructed in such a way
that provides structural integrity of the fingers to resist lateral
impact and mooring line loads without guide piles at the finger
ends. Continuous structural stringers and/or special moment
and shear—carrying splices must be engineered and submitted
to the Building Department for approval.
(4) The City council has allowed exceptions for dock constrcution
beyond the Pierhead Lines as noted in Council Policy H-1.
DOCK ARRANGEMENT
CASE 9B
4-36
ATTACHMENT G
RESOLUTION NO. 2019-48
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, AFFIRMING THE
HARBOR COMMISSION'S DENIAL OF AN "APPROVAL IN
CONCEPT" (PROJECT FILE NO. 2585-2018) FOR THE
REMOVAL AND REPLACEMENT OF A DOCK SYSTEM AT
THE PROPERTY LOCATED AT 939 VIA LIDO SOLID
WHEREAS, an application for an Approval in Concept ("AIC") was filed by Mark
Conzelman to remove the existing gangway and U -shape float and replace it with a new
gangway lobe, gangway and reconfigured U -shape float ("Project") at the property located
at 939 Via Lido Saud, City of Newport Beach, County of Orange, State of California
("Property");
WHEREAS, Newport Beach Municipal Code ("NBMC") Section 17.50.030(B)(4)
requires City of Newport Beach Public Works Director to issue an AIC for all development
areas where the Coastal Commission retains coastal development permit authority;
WHEREAS, the Property is located within the coastal zone;
WHEREAS, on or about October 2, 2018, the Public Works Director denied the
application and determined that the Project did not comply with NBMC Section
17.35.030(A) and Council Policy H-1 (Harbor Permit Policy) in that the gangway and
reconfigured U -shape float (currently permitted to extend up to the pierhead line) would
extend 16 feet beyond the pierhead line;
WHEREAS, NBMC Section 17.65.010(A) authorizes appeal of the Public Works
Director's decision to the City of Newport Beach Harbor Commission by any interested
person;
WHEREAS, on or about January 15, 2019, Swift Slip Dock and Pier Builders, Inc.
on behalf Mark Conzelman ("Appellant") filed a timely appeal of the decision with the basis
of the appeal, in pertinent part, being the following: the dock will accommodate the
applicant's larger vessel and most of the residential docks from 939 Via Lido Saud to Via
Waziers on Via Lido Soud extend to the project line,
4-37
Resolution No. 2019 -
Page 2 of 4
WHEREAS, on or about February 13, 2019, the Newport Beach Harbor
Commission held a public hearing in the Council Chambers located at 100 Civic Center
Drive, Newport Beach, California. Notice of the time, place and purpose of the public
hearing was given in accordance with California Government Code Section 54950 et.
seq. ("Ralph M. Brown Act") and NBMC. Evidence, both written and oral, was presented
to, and considered by, the Harbor Commission at the public hearing. At the conclusion
of the public hearing, the Harbor Commission voted to uphold the Public Works Director's
decision to deny the Project;
WHEREAS, on or about February 26, 2019, the Appellant filed a timely appeal of
the Harbor Commission's decision with the basis of the appeal, in pertinent part, being
the following: the Project will not affect navigation, adjacent property owners or existing
harbor uses;
WHEREAS, on or about May 28, 2019, the City Council held a public hearing in
the Council Chambers located at 100 Civic Center Drive, Newport Beach, California.
Notice of the time, place and purpose of the public hearing was given in accordance with
the Ralph M. Brown Act and NBMC. Evidence, both written and oral, was presented to,
and considered by, the City Council at the public hearing;
WHEREAS, NBMC Section 17.50.040(A) authorizes the City to issue Harbor
Development Permits upon the determination that a new permit and/or a revision to an
existing permit conforms to the design criteria and all applicable standards and policies
in conjunction with plan reviews by the Public Works Department,
WHEREAS, NBMC Section 17.35.030(A) does not allow piers and floats to extend
beyond the pierhead line unless approved by Council Policy H-1;
WHEREAS, Newport Beach Council Policy H-1 provides that a pier or float may
not extend beyond the pierhead line unless the Harbor Commission makes a
determination that such extension will not negatively impact: (1) navigation; (2) adjacent
property owners; and (3) existing harbor uses; and
WHEREAS, after consideration of an appeal, NBMC Section 17.65.040(F)
authorizes the reviewing body to affirm, modify or reverse the original decision.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: Pursuant to Title 14, Division 6, Chapter 3 of the California Code of
Regulations ("CEQA Guidelines") Section 15270, projects which a public agency rejects
or disapproves are not subject to CEQA review.
4-38
Resolution No. 2019 -
Page 3 of 4
Section 2: The City Council does hereby affirm the Harbor Commission's decision
and denies the Project. The City Council's decision is made in accordance with NBMC
Section 17.50.040 and is supported by the following findings and facts:
A. Section 17.50.040(A) and (B)(1). The Project does not conform to the
policies in conjunction with plan reviews by the City.
Facts in Support of Finding. The Project does not conform to the Harbor Design
Guidelines Figure 10A in that the two piles at the end of the finger extend beyond the
federal dredging limit. In order to allow the two piles to extend beyond the federal
dredging limit, the Building Official must find there are practical difficulties in carrying out
the provisions of the code and a special individual reason exists for making the strict letter
of this code impractical. Additionally, the Building Official must find that the modification
complies with the intent and purpose of this code and that such modification does not
lessen health, accessibility, life and fire safety, or structural requirements. California
Building Code Section 104.10.
B. Section 17.35.030(A). Piers and floats may not extend beyond the
pierhead line unless approved by Council policy as may be amended from time to time.
Facts in Support of Finding. As proposed, the Project does not comply with Section
17.35.030(A) in that the pier would extend 16 feet beyond the pierhead line.
C. City Council Policy H-1. Piers and floats may extend beyond the pierhead
line, as an exception to Section 17.35.030(A), if the Harbor Commission makes a
determination that such extension will not negatively impact: (1) navigation; (2) adjacent
property owners; and (3) existing harbor uses.
Facts in Support of Finding. The Project is located in an area congested with
various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle,
opposite Bay Island, across from the designated short-term anchorage area and the
Newport Harbor Yacht Club mooring field at the convergence of two navigable channels.
The navigable channel is 256 feet wide with significant congestion between the
anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as
proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5
feet into the navigable channel. Therefore, the Project, as proposed, does not comply
with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property
owners and existing harbor uses.
D. Section 17.50.040(B)(2). The Project is likely to create navigational
congestion, or otherwise interfere with the rights of other harbor permittees within
Newport Harbor.
4-39
Resolution No. 2019 -
Page 4 of 4
Facts in Support of Finding. The Project is located in an area congested with
various harbor uses. The Project is located on a curve on the easterly tip of Lido Isle,
opposite Bay Island, across from the designated short-term anchorage area and the
Newport Harbor Yacht Club mooring field at the convergence of two navigable channels.
The navigable channel is 256 feet wide with significant congestion between the
anchorage and Newport Harbor Yacht Club mooring field. Additionally, the Project, as
proposed, could accommodate an 85 -foot vessel that would extend by as much as 18.5
feet into the navigable channel. Therefore, the Project, as proposed, does not comply
with Harbor Policy H-1 in that it would negatively impact navigation, adjacent property
owners and existing harbor uses.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases by declared invalid or
unconstitutional.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting this resolution.
ADOPTED this 28th day of May, 2019.
Diane B. Dixon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
F AarC. Harp
City ttorney
.M