HomeMy WebLinkAbout2021-4 - Upholding the Harbor Commission's Approval of an "Approval in Concept" for a Residential Dock Reconstruction Project at the Property Located at 944 Via Lido Nord (File No. 1901-2020)RESOLUTION NO. 2021-4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, UPHOLDING THE
HARBOR COMMISSION'S APPROVAL OF AN
"APPROVAL IN CONCEPT" FOR A RESIDENTIAL DOCK
RECONSTRUCTION PROJECT AT THE PROPERTY
LOCATED AT 944 VIA LIDO NORD (FILE NO. 1901-2020)
WHEREAS, Palmer Luckey ("Applicant") filed an application for an Approval in
Concept ("AIC") to remove the existing pier, pier platform, gangway and U-shaped float
and replace it with a new gangway and single -finger float ("Project") at the property
located at 944 Via Lido Nord, City of Newport Beach, County of Orange, State of
California ("Property");
WHEREAS, the existing pier was permitted to extend up to the pierhead line as it
existed in 1987 but the pier as constructed extends past the pierhead line by 7 feet, and
the Project's proposed single -finger float will extend past the pierhead line by the same
length;
WHEREAS, the Property is located within the coastal zone; therefore, compliance
with the Local Coastal Program is required;
WHEREAS, Section 17.50.030(B)(1) of the Newport Beach Municipal Code
("NBMC") requires the City to issue an AIC for all development areas where the Coastal
Commission retains coastal development permit authority;
WHEREAS, Section 17.35.030(A) of the NBMC does not allow piers and floats to
extend beyond the pierhead line unless approved in compliance with City Council Policy
H-1 (Harbor Permit Policy) ("Policy H-1 ");
WHEREAS, Policy H-1 provides that a pier or float may not extend beyond the
pierhead line unless, among other conditions, the existing pier or float was previously
permitted to encroach bayward beyond the pierhead line;
Resolution No. 2021-4
Page 2 of 6
WHEREAS, the Harbor Commission reviewed the Project for conformance with
Policy H-1 at a telephonic public hearing held on November 9, 2020, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach, California due to the
Declaration of a State Emergency and Proclamation of Local Emergency related to
COVID-19. A notice of time, place and purpose of the public hearing was given in
accordance with Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and
Section 17.05.140 (Public Hearings) of the NBMC. Evidence, both written and oral, was
presented to and considered by the Harbor Commission at the public hearing;
WHEREAS, the Harbor Commission voted (7 ayes, 0 nays) to approve the Project
with the condition that vessels are prohibited from extending more than 20 feet beyond
the end of the finger float;
WHEREAS, on November 23, 2020, pursuant to Section 17.65.010(D) of the
NBMC, former Council Member Herdman called the Harbor Commission's decision up
for review to the City Council;
WHEREAS, a telephonic public hearing was held by the City Council on January
12, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California due to the Declaration of a State Emergency and Proclamation of Local
Emergency related to COVID-19. A notice of the time, place and purpose of the public
hearing was given in accordance with the Ralph M. Brown Act and Sections 17.05.140
(Public Hearings) and 17.65.040 (Procedures) of the NBMC. Evidence, both written and
oral, was presented to and considered by the City Council at the public hearing;
WHEREAS, Section 17.05.140(D)(1) of the NBMC requires the reviewing body to
make all of the findings prescribed therein or state why it cannot make the findings when
affirming, modifying or reversing the original decision; and
WHEREAS, Section 17.50.030(A) of the NBMC provides that the City shall
determine whether the proposed development conforms to Title 17 of the NBMC, the
design criteria and all applicable standards and policies adopted by the City Council or
required by State or Federal regulatory agencies for such development.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council finds the Project is exempt from the California
Environmental Quality Act ("CEQA") for the following reasons:
Resolution No. 2021-4
Page 3 of 6
A. 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 involves a minor alteration to a dock
system that has existed for several decades in various configurations, and will result in
the overwater coverage of the dock system decreasing from 943 square feet to 696
square feet.
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[.]" The Project is in the same location and is
substantially the same size, purpose and capacity as the dock system it replaces, with
the overwater coverage of the Project decreasing from 943 square feet to 696 square
feet.
C. No substantial evidence exists demonstrating that any exception to the
applicable categorical CEQA exemptions listed in CEQA Guidelines Section 15300.2
applies.
Section 2: The City Council does hereby uphold the Harbor Commission's
approval of the Approval in Concept for the Project, subject to the Special Conditions
attached hereto as Exhibit A, which is incorporated herein by this reference, including the
condition that any vessel berthed at the float shall not extend past the end of the finger
float by more than 20 feet. The City Council's decision is made in accordance with Section
17.05.140(D)(1) of the NBMC and is supported by the following findings and facts:
A. The use complies with Title 17, the Local Coastal Program, General Plan,
design criteria, and any applicable standards and policies approved by the City Council
(NBMC 17.05.140(D)(1)(a)).
Facts in Support of Finding A. The Public Works Department has reviewed the
plans for the Project in conjunction with Title 17, the Local Coastal Program, the City's
General Plan, and the City's Harbor Design Criteria and, determined that the Project is in
conformance thereto. The Project conforms to the provisions of the NBMC and applicable
policies as delineated in findings (B) through (G), below. With respect to the Local Coastal
Program, the Project will not obstruct public access and will have minimal impacts to
public coastal views and coastal resources. As explained in greater detail below, the
Project will not obstruct public access because the navigable channel between the
Property and the anchorage is 256 feet wide and, therefore, is adequate for navigation.
There are no impacts to public coastal views because there are no adjacent public view
corridors and the Project is designed and sited to be harmonious with the natural
appearance of the surrounding area. The Project is a replacement of the existing dock
situated between private residential docks on either side. The Project will not be out of
Resolution No. 2021-4
Page 4 of 6
character with the surrounding area, and is substantially the same size, purpose and
capacity as the dock it replaces.
Additionally, the Project conforms to the "City of Newport Beach Waterfront Project
Guidelines and Standards Harbor Design Criteria Commercial and Residential Facilities."
B. Section 17.35.030(A). Piers and floats may not extend beyond the
pierhead line unless approved by Council Policy H-1 which authorizes such extension
provided: 1) the existing pier is currently encroaching bayward beyond the pierhead line;
2) the existing pier was previously permitted to encroach bayward beyond the pierhead
line; 3) the pier will not encroach any further bayward beyond the pierhead line than the
existing encroachment; 4) any vessel utilizing the pier will not extend beyond the project
line; and 5) the pier will preserve the diverse uses of the harbor, maintain public access,
preserve or enhance the visual character of the harbor, and not negatively impact
adjacent property owners, navigation and future harbor dredging.
Facts in Support of Finding B. The Project meets the criteria set forth in Policy H-
1. The existing pier as constructed extends past the pierhead line by 7 feet and the
Project's proposed single -finger float will extend past the pierhead line by the same
length. The special condition prohibiting any vessel docked at the pier to extend more
than 20 feet beyond the end of the finger float ensures that any vessel utilizing the pier
will not extend beyond the project line. Although the existing pier extends past the
previously permitted length by 7 feet, the pier has existed in its current configuration for
over 30 years and, if approved, will decrease the footprint of the pier by approximately
25%.
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 approximately 256 feet wide and provides adequate space to navigate the
channel. With respect to (2), the Project will not interfere with adjacent property owners
as evidenced by verbal testimony from adjacent property owners in support of the Project.
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 13 -feet from
the project line. No other evidence was submitted that the Project would have a negative
impact on existing harbor uses.
Moreover, ' if the City Council makes the determination that Policy H-1 criteria
cannot be met, it is within the City Council's discretion to waive the Policy.
C. The design, location, size and/or operating characteristics of the use are
compatible with the allowed uses in the vicinity (NBMC 17.05.140(D)(1)(b)).
Resolution No. 2021-4
Page 5 of 6
Facts in Support of Finding C. The Project's design, location and operation
characteristics are consistent with the allowed uses in the vicinity. The Project is located
on a curve on the easterly tip of Lido Isle, opposite Bay Island, and set amongst other
residential docks and piers. The Project consists of removal of the existing pier, pier
platform, gangway and U-shaped float and replacement with a new gangway and single -
finger float. The Project is in the same location with substantially the same purpose and
capacity as the dock system it replaces except that it would result in a 25% reduction in
overwater coverage with the size of the pier decreasing from 943 square feet to 696
square feet.
D. For any structures, the site is physically suitable in terms of design, location,
shape, size and operating characteristics, and the provision of the public and emergency
vehicle (e.g., fire and medical) access and public services and utilities (NBMC
17.05.140(D) (1) (c)).
Facts in Support of Finding D. See finding B, above. In addition, the provision of
public and emergency vehicle (e.g., fire and medical) access and public services and
utilities will not be detrimentally impacted by the Project. The navigable channel in front
of the Property to the anchorage is approximately 256 feet wide and provides adequate
space to navigate the channel. The existing pier extends 7 feet beyond the pierhead line
and the City has not received any evidence that it has impacted public and emergency
vehicle access over the past 30 years. Therefore, the proposed pier of the same length
would indicate no impacts to public and emergency vehicle access.
E. Operation of the use at the location proposed would not be detrimental to or
endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health,
interest, safety, or general welfare (NBMC 17.05.140(D)(1)(d)).
Facts in Support of Finding E. See finding B, above.
F. Any new development is designed or sited so as to not obstruct public access
to coastal resources or, in the case of the alteration, extension, enlargement, expansion,
reconstruction, replacement or addition of any structures, would not, in comparison to the
existing structure or structures, further restrict or impair the public's use of the bay or
beach in the vicinity of the existing structure of structures (NBMC 17.05.140(D)(1)(e));
and
Facts in Support of Finding F. See finding B, above. In addition, the Project will
result in the overwater coverage of the Project decreasing from 943 square feet to 696
square feet and the float's extension past the pierhead line will remain the same as that
of the current pier, 7 -feet.
G. Any specific findings set forth in this title (NBMC 17.05.140(D)(1)(0).
Facts in Support of Finding G. The Project conforms with Policy H-1 for the reasons
stated in finding A and B, above.
Resolution No. 2021-4
Page 6 of 6
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases by declared invalid or
unconstitutional.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting this resolution.
ADOPTED this 12th day of January, 2021.
ATTEST:
4bM� jjik74�
eilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment: Exhibit A - Approval in Concept with Special Conditions
EXHIBIT A
�4wpo&
trro
PUBLIC WORKS
100 Civic Center Drive
Newport Beach, CA 92660
HARBOR PERMIT/APPROVAL IN CONCEPT
HARBOR PERMIT/APPROVAL IN CONCEPT BY THE CITY OF NEWPORT BEACH
as required for permit application to the South Coast Area Office of the California
Coastal Commission pursuant to the California Coastal Act of 1976 (Pub. Res. Code §
30000 et seq.) and applicable implementing regulations (14 CCR § 13001 et seq.)
General Description of Proposed Development:
Remove existing pier, pier pile, gangway and floating dock. Install new gangway and
floating dock. Reuse existing pile.
Address number must be stenciled on at least 1 bayward-most pile, bayward face.
Pier conditions must be signed by applicant prior to final approval.
Property Address: 944 Via Lido Nord
Legal Description: N/A
Harbor Permit Number: N/A
Plan Check Number: 1901-2020
Applicant: Palmer Luckey
Applicant's Mailing Address: 6351 Industry Way, Westminster, CA 92683 (Swift Slip)
Phone Number: 949-631-3121 (Swift Slip)
I have reviewed the plans for the foregoing development including:
1. The general site plan, including any roads and public access to the
shoreline.
2. The grading plan, if any.
3. The general uses and intensity of use proposed for each part of the area
covered in the application.
And find
❑They comply with the current adopted Newport Beach General Plan, Municipal
Code Title 17, and any applicable specific or precise plans or,
®That a variance or exception has been approved and final.
A copy of any variance, exception, conditional use permit or other issued permit is
attached hereto, together with all conditions of approval and all approved plans including
approved tentative tract maps. On the basis of this finding, these plans are approved in
concept and said approval has been written upon said plans, signed and dated.
Should Newport Beach adopt an ordinance deleting, amending or adding to the
Municipal Code or other regulations in any manner that would affect the use of the
property or the design of a project located thereon, this Approval In Concept shall
become null and void as of the effective date of this said ordinance.
In accordance with the California Environmental Quality Act of 1970, and state and
local guidelines adopted thereunder, this development:
❑ Has been determined not to be a "project' or not to cause the requisite impact on
environment to trigger CEQA.
® Has been determined to be subject to ministerial decision of City or to be statutorily
or categorically exempt.
❑ Is subject to an adopted Negative Declaration or Mitigated Negative Declaration
(copy attached).
❑ Is subject to a certified Environmental Impact Report (copy attached).
All discretionary approvals legally required of the City of Newport Beach prior to issuance
of a harbor permit and a building permit have been given and are final. The development
is not subject to rejection in principal by Newport Beach unless a substantial change is
proposed.
This concept approval in no way excuses the applicant from complying with all applicable
federal and state laws and any policies, ordinances, codes and regulations of the City of
Newport Beach. See attached Special Conditions, which are incorporated herein
this Approval in Concept.
Lisa Walters,
—/—/20
Attachments:
Worksheet for Building Application
Drawing
Pier Conditions
HARBOR RESOURCES DIVISION
100 Civic Center Drive
Newport Beach, CA 92660
Special Conditions
Date: December 14, 2020
Address: 944 Via Lido Nord
With reference to the plans currently under consideration at the above referenced address to
remove existing pier, pier pile, gangway and floating dock, and to install a new gangway and
floating dock, and to reuse existing pile, the following conditions will now be in effect:
1. The project applicant is aware of the Harbor Permit Policies (Council Policy H-1) and Title
17 of the City of Newport Beach Municipal Code. The project applicant 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 currently proposed project as
described above and 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 applicant
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.
7. The project applicant 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 may not extend beyond the end of the finger by more than twenty (20) feet
per Resolution 2021-_ of the Newport Beach City Council.
10. The maximum beam of a vessel that is permitted to side -tie to the north side of the float is
31 -feet.
11. The maximum beam of a vessel that is permitted to side -tie to the south side of the float
is 5 -feet.
12. All required insurance shall be maintained in full force and effect during the pendency of
this approval in concept.
13. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless
the County of Orange, its Board of Supervisors, the City, its City Council, its boards and
commissions, officials, officers, employees, and agents from and against any and all claims,
demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever which may arise from or
in any manner relate (directly or indirectly) to City's approval of this Approval in Concept, the
applicant's exercise of this Approval in Concept, the activities of the applicant carried on under
authority of this Approval in Concept, and/or any related California Environmental Quality Act
determinations. This indemnification shall include, but not be limited to, damages awarded
against the County or the City, if any, costs of suit, attorneys' fees, and other expenses
incurred in connection with such claim, action, causes of action, suit or proceeding whether
incurred by applicant, County or City, and/or the parties initiating or bringing such proceeding.
The applicant shall indemnify the County or City for all of County or City's costs, attorneys'
fees, and damages which County or City incurs in enforcing the indemnification provisions set
forth in this condition. The applicant shall pay to the County and/or City upon demand any
amount owed to the County or City pursuant to the indemnification requirements prescribed in
this condition.
Lisa Walters, Public Works
Date
Applicant Signature Print Name Date
Joint Pier Applicant Signature (if applicable) Print Name Date
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. 2021-4 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 12th day of January, 2021; and the same was so passed and adopted by the
following vote, to wit:
AYES: Mayor Brad Avery, Mayor Pro Tem Kevin Muldoon, Council Member Noah Blom,
Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy
Duffield, Council Member Will O'Neill
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 13th day of January, 2021.
Leilani I. Brown -
City Clerk
Newport Beach, California