HomeMy WebLinkAbout2.0_3309 Ocean LLC Encroachment_PA2021-091
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
July 22, 2021
Agenda Item No. 2
SUBJECT: 3309 Ocean LLC Encroachment (PA2021-091)
Encroachment Permit No. N2021-0197
SITE LOCATION: 3309 Ocean Boulevard
APPLICANT: Laidlaw Schultz Architects
OWNER: 3309 Ocean LLC
PLANNER: David Keely, Senior Civil Engineer
949-644-3349, dkeely@newportbeachca.gov
PROJECT SUMMARY
A request to retain existing non-compliant private improvements within the Ocean
Boulevard public right-of-way consisting of site walls, stairs on-grade, patios, a wood
plank driveway bridge, wooden erosion control terracing, guardrails, potted plants,
planters and a decorative concrete driveway that encroach up to 52-feet into the 110-foot
wide Ocean Boulevard public right-of-way.
RECOMMENDATION
1) Find the project exempt from the California Environmental Quality Act (CEQA)
Guidelines pursuant to Section 15301 and Section 15303 under Class 1 (Existing
Facilities) and Class 3 (New Construction or Conversion of Small Structures),
because it has no significant effect on the environment;
2) Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to retain
existing non-compliant private improvements within the Ocean Boulevard public right-
of-way consisting of site walls, stairs on-grade, patios, a wood plank driveway bridge,
wooden erosion control terracing, guardrails, potted plants, planters and a decorative
concrete driveway that encroaches in excess of 1 foot into the 110-foot wide Ocean
Boulevard public right-of-way, contingent upon all conditions of the Encroachment
Permit process being met (Attachment No. PC 1); and
3) Adopt Resolution No. PC2021-017 waiving City Council Policy L-6 and approving
Encroachment Permit No. N2021-0197 (Attachment No. PC 2).
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3309 Ocean LLC Encroachment (PA2021-091)
Planning Commission, July 22, 2021
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VICINITY MAP
INTRODUCTION
The property owner of 3309 Ocean Boulevard (“Owner”) is requesting to retain existing
non-compliant private improvements within the Ocean Boulevard public right-of-way
consisting of site walls, stairs on-grade, patios, a wood plank driveway bridge, wooden
erosion control terracing, guardrails, potted plants, planters, and a decorative driveway
that encroach up to 52-feet into the 110-foot wide Ocean Boulevard public right-of-way.
City Council Policy L-6 (“Policy”) prohibits the proposed encroachments in excess of 1
foot into the public right-of-way and the Owner is requesting a waiver of the Policy to
retain the existing improvements.
SUBJECT
PROPERTY
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3309 Ocean LLC Encroachment (PA2021-091)
Planning Commission, July 22, 2021
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Please see attached Applicant letter dated April 12, 2021, site photos, and site plan
(Attachment Nos. PC 3, 4, and 5).
DISCUSSION
City Council Policy L-6, Encroachments in Public Rights-of-Way, explains and describes
how the public rights-of-way are to be reserved for public use or open space; and that the
rights of the public, present and future, are not to be diminished by the installation of
private improvements within the public rights-of-way. The Policy specifies allowable and
prohibited encroachments and describes the required permits and/or encroachment
agreements.
Private encroachments are prohibited without a waiver of Policy L-6, which outlines
private encroachment prohibitions including “…structural encroachments including, but
not limited to, fences, walls, patios, raised planters, etc., which encroach in excess of one
(1)-foot into the public right-of-way or exceeds three (3)-feet in height…” The Owner is
requesting a waiver of this policy to retain the existing improvements that encroach in
excess of 1 foot into the Ocean Boulevard public right-of-way.
The existing improvements are complementary to the area; several residences along the
Ocean Boulevard right-of-way have similar private encroachments. Some of these
encroachments are permitted through an encroachment permit and encroachment
agreement, whereas others have been constructed without approval or permit. The
Ocean Boulevard right-of-way is approximately 110-feet wide, which is unusually wide for
a residential area. The width of the right-of-way between the back of sidewalk and the
property line is approximately 52-feet wide. This portion of Ocean Boulevard slopes
downward toward private property and the Pacific Ocean with an elevation change of
approximately 11-feet. The existing private improvements do not diminish the rights of the
public along the Ocean Boulevard right-of-way. The existing public sidewalk along the
southerly side of Ocean Boulevard is at the top of slope adjacent to the street and is
unobstructed. There are no existing City utilities within the encroachment area and the
City has no plans to widen Ocean Boulevard. The recommended actions would not
diminish public rights for future use.
Local Coastal Program
The subject property is located in the coastal zone and the proposed improvements do
not require a coastal development permit in accordance with Newport Beach Municipal
Code (NBMC) Section 21.52.035 (Projects Exempt from Coastal Development Permit
Requirements). NBMC Subsection 21.52.035.C(1) refers to coastal act exemptions
related to existing single-unit residential buildings, including ancillary structures normally
associated with a single-unit residence, such as garages, swimming pools, fences,
storage sheds, but not including houses or self-contained residential units; and
landscaping on the lot, unless they involve a risk of adverse environmental effects.
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3309 Ocean LLC Encroachment (PA2021-091)
Planning Commission, July 22, 2021
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The existing site walls, stairs on-grade, patios, wood plank driveway bridge, wooden
erosion control terracing, guardrails, potted plants, planters, and decorative concrete
driveway are minor detached structures associated with the existing single-family
residence. Their location and presence do not pose a conflict to coastal resources,
coastal access, or other adverse environmental effects. The encroachments do not alter
the existing bluff oceanward of the existing home. Therefore, the encroachments are
exempt from the requirement for a coastal development permit.
Summary
Staff supports the policy waiver for the existing private improvements. In staff’s review of
the site conditions, the proposed improvements do not hinder the use of the public right-
of-way. The proposed private improvements will not be detrimental to the health, safety,
and welfare of the public. The existing private improvements do not diminish the rights of
the public, present and future at this location, provided an encroachment agreement
between the City and the Owner will be executed. Staff also recommends that the
landscaping within the Ocean Boulevard right-of-way be limited to 36-inches in height to
maintain views from the sidewalk and street.
Should the Planning Commission approve the waiver of the existing private improvements
and appurtenances, staff recommends an encroachment agreement be entered into with
the property owner consistent with Policy L-6. The encroachment agreement specifies
the rights of the City and any liability associated with the existing private improvements
would be transferred to the Owner. Additionally, if the need for public improvements
should arise in the future, the Owner shall agree to remove all encroachments at no cost
to the City. The encroachment agreement will be recorded onto the property’s title,
provides important notice for the current and future property owner, and protects the City.
Environmental Review
This project is categorically exempt from the California Environmental Quality Act
Guidelines pursuant to Section 15301 (Existing Facilities) and Section 15303 under Class
3 (New Construction or Conversion of Small Structures) because it has no potential to
have a significant effect on the environment.
Class 1 includes 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 proposed improvements are accessory to the existing single-family residence.
Class 3 exempts the construction of accessory (appurtenant) structures including
garages, carports, patios, swimming pools, and fences. The proposed improvements
(stairs, driveway improvements, and site walls/terracing/fences) are consistent with this
exemption. There are no known exceptions listed in CEQA Guidelines Section 15300.2 that
would invalidate the use of these exemptions.
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3309 Ocean LLC Encroachment (PA2021-091)
Planning Commission, July 22, 2021
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Public Notice
Notice of this hearing was mailed to all owners of property within 300 feet of the
boundaries of the site (excluding intervening rights-of-way and waterways) including the
applicant and posted on the subject property at least 10 days before the scheduled
meeting, consistent with the provisions of the Municipal Code. Additionally, the item
appeared on the agenda for this meeting, which was posted at City Hall and on the City
website.
Prepared by: Submitted by:
David Keely
Senior Civil Engineer
Jim Campbell
Deputy Community Development Director
ATTACHMENTS
PC 1 City Council Policy L-6 (Encroachments in Public Rights-of-Way)
PC 2 Draft Resolution with Findings and Conditions
PC 3 Owner’s Letter dated March 24, 2021
PC 4 Site Photos
PC 5 Site Plan
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Attachment No. PC 1
City Council Policy L-6 (Encroachments in
Public Rights-of-Way)
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L-6
ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY
It is the general policy of the City that the public rights-of-way shall be reserved for public
use or open space; and that the rights of the public, present and future, shall not be
diminished by the installation of private improvements within the public rights-of-way.
For any project located within the Coastal Zone also look to Newport Beach Municipal
Code Title 21, or any successor title.
Categories of encroachments and improvements are listed below, together with the
permit requirement for each category.
Permit and/or encroachment agreement required.
A. Except as expressly set forth herein, permits and/ or encroachment agreements are
required for encroachments into the public rights-of-way.
B. Application for any permit, as required by this policy, shall be filed with the Public
Works Department on a form to be provided by the City and shall show the
proposed planting or work and the nature thereof. Drawings for encroachment
permits requiring Planning Commission review shall be prepared to scale. Plan
and elevation drawings shall accurately depict location, height, and extent of the
proposed encroachments.
C. If the application is for a permit required under private encroachments that are
prohibited without a waiver, it shall be submitted to the Planning Commission for
consideration.
1. The Planning Commission is designated to grant or deny a waiver and
approve, conditionally approve, or deny applications for encroachment
permits, subject to the findings in subsection (a), of this Section.
a. The Planning Commission may grant a waiver and may approve or
conditionally approve an application for an encroachment permit if
the Planning Commission finds the encroachment will not be a
detriment to the health, safety, and welfare of the public.
b. If an application for a private encroachment that is prohibited
without a waiver is part of a larger approval requiring City Council
approval, then the Planning Commission shall make a
recommendation to the City Council regarding whether this policy
should be waived and the permit granted.
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C. The Planning Commission shall have discretion to refer any request
for a waiver or encroachment permit before the Planning
Commission to the City Council for consideration.
d. Any decision made by the Planning Commission may be appealed
or called for review in accordance with Chapter 20.64.
2. Notice of the Planning Commissions review of a request to waive a
provision of this policy shall be:
a. Mailed to property owners within 300 feet of the project site at least
ten (10) calendar days in advance of a meeting. The notice shall
contain the address of the project site, the applicant's name, a brief
description of the improvements, date, time, and place of the
meeting, and a statement informing the public that they have the
ability to provide comments to the Planning Commission; and
b. Posted on or close to the subject property in a prominent location at
least ten (10) calendar days before the scheduled hearing by the
Planning Commission in the following manner:
i. One or more sign(s) shall be posted as determined by the
Public Works Director.
ii. The size and location of the sign(s) shall be as determined by
the Public Works Director.
iii. The applicant for the encroachment permit/waiver shall be
responsible for maintaining the sign(s) in a satisfactory
condition.
iv. The applicant for the encroachment permit/waiver shall
remove all sign(s) at the end of the appeal period.
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L-6
Private encroachments that are prohibited without a waiver and approval.
A. All structural encroachments including, but not limited to, fences, walls, patios,
raised planters, landscaping, etc., which encroach in excess of one (1) -foot into the
public right-of-way, or exceed thee (3) -feet in height, measured from the top of
curb elevation/ or from sidewalk elevation where sidewalk exists.
B. Driveway approaches not conforming to Council Policy L-2.
C. Modifications to original design concepts approved by the City.
D Private signs except as provided for in the Building Code.
E. Lighting.
F. Parkway walkway surfacing of loose rock, gravel, or any surfacing other than
standard or colored/ textured concrete or flat stone/brick/pavers installed at
grade.
G. Private dwellings and appendages including raised patios decks and bay
windows, except as provided for in this section and the Building Code.
H. Pay telephones and private mail carriers drop boxes.
General private encroachments that require an encroachment permit and if applicable,
an encroachment agreement from the Public Works Department.
A. Drive approaches conforming to Council Policy L-2.
B. Standard sidewalks.
C. Carriage walks (not to exceed twenty-five percent (25%) of the parkway area).
D. Parkway surfacing (standard or colored/ textured concrete or flat stone/brick)
installed at grade (not to exceed twenty-five percent (25%) of the parkway area).
E. CATV and public utility facilities.
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L-6
F. Structural encroachments including, but not limited to, fences, walls, patios, raised
planters, etc., which encroach one (1) foot or less and do not exceed three (3) feet
in height within the public right-of-way. If, however, in the opinion of the Public
Works Department, the nature or location of this type of encroachment is such that
Planning Commission review is warranted, the Department may forward the item
to the Planning Commission for action in accordance with the procedures set forth
for granting waivers for private encroachments that would otherwise be
prohibited.
G. Mailboxes, when required by the U.S. Postal Service. Mailboxes shall be installed
per U.S. Postal Service requirements. Mailbox base construction length and width
shall not exceed the length of the mailbox, or twenty-four (24) inches, whichever
is less.
H. The placement of utility pedestals shall be at the back of sidewalks on arterials and
major pedestrian thoroughfares without zero setbacks. There shall be at least four
4) feet of clear sidewalk width and/or pedestals shall be placed in the parkway
outside of walk area.
I. When connecting to or relocating public utilities.
J. Artificial Turf (permeable) up to 100% of the required parkway landscape area.
Artificial turf grass shall be installed in accordance to manufacturers'
recommendations. Material must be securely anchored and maintained so as to
eliminate disrepair, fading, tearing, wrinkling and or edge curling or any other
type of material performance. Material shall be replaced prior to the
aforementioned conditions occur. Prohibited application: Indoor and outdoor
carpet, green in color or otherwise. The Director of Public Works shall from time
to time update the standards for this application. See Artificial Turf Material and
Installation Standards.
K. Tree and shrub planting and removal.
L. Median landscaping.
If, in the opinion of the Public Works Departments, the approved planting is not being
maintained for view, safety clearance and sight distance, Newport Beach Municipal Code
Chapter 10.50, "Public Nuisance Abatement," or any successor statute, shall be used to
remove offending plant material.
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L-6
The permit applicant shall reimburse the City of Newport Beach for the value of any City
tree removed by this process. This value shall be determined by the City Arborist using
the International Society of Arboriculture's "Guide for Plant Appraisal" or a minimum
forty-eight (48) inch box tree replacement value.
Area specific private encroachments requiring an encroachment permit from the Public
Works Department and subject to the execution of an encroachment agreement for
non-standard improvements.
A. Structural encroachments which do not exceed three (3) feet in height measured
from the top of curb elevation/ or from sidewalk elevation where sidewalk exists,
including, but not limited to fences, walls, and raised planters in public rights-of-
way in areas that are more than eight (8) feet behind the face of curbs on the
following streets:
1. Santa Ana Avenue from Cliff Drive to Fifteenth Street.
B. Permitted Structural Encroachments on Balboa Island along South Bay Front,
North Bay Front, Grand Canal, and East Bayfront are as follows:
1. Planters that do not exceed one (1) foot in height may be installed between
the back of existing sidewalk and property line, planted with ground cover
and shrubs not to exceed two (2) feet in height measured from sidewalk
elevation;
2. Fences and walls with a minimum setback of two (2) feet six (6) inches from
back of sidewalk.
a. For patios constructed at grade elevation to one (1) foot above
sidewalk grade elevation, fences and walls may be three (3) feet high
above sidewalk grade.
b. For patios constructed greater than one (1) foot above sidewalk
grade elevation, fences and walls must be set back a minimum of
three (3) feet from back of sidewalk, not exceed two (2) feet six (6)
inches in height above the patio, have at least forty percent (40%)
visibility through them, and not to exceed four (4) feet in height
above existing public sidewalk grade.
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L-6
3. Patios with a minimum setback of two (2) feet six (6) inches from the back
of sidewalk.
a. Raised Patios are permitted provided they have a maximum height
of two (2) feet six (6) inches above sidewalk grade, are set back a
minimum of two (2) feet six (6) inches from back of sidewalk, and
provided all bulkhead deadman and tiebacks supporting the Bay
front bulkhead are replaced "If required by the Public Works
Department" in conformance with the requirements of the Public
Works Department; Stairs located a minimum of two (2) feet six (6)
inches from back of sidewalk.
C. Structural encroachments which do not exceed three (3) feet in height, including,
but not limited to fences, walls, patios, and raised planters in public rights -of -ways
in areas that are five (5) feet behind the face of curb on the following streets:
1. Southerly side of West Bay Avenue between 8th Street and 15th Street.
D. Non-standard encroachments, including, but not limited to fences, walls, and
raised planters within City easements as approved by the Public Works Director.
E. Buena Vista Boulevard - Bay Avenue to Edgewater Avenue. The street right-of-
way in this reach is ten (10) feet wide, with private property on both sides of the
public way. Improvements allowed at this location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way line maintained by the City.
2. Landscaping under twenty-four (24) inches in height and park -like
improvements in the remaining portion of the right-of-way shall be allowed
if installed and maintained by the adjoining property owners. Private
improvements such as walls, fences, gates, signs and living areas such as
cabanas and other roofed structures shall not be allowed.
3. Access to existing private piers and floats shall be allowed where a harbor
permit has been granted, but such access structures shall not be expanded
beyond the original permit dimensions.
F. Edgewater Avenue - Buena Vista Boulevard to Island Avenue. The street right-
of-way in this reach is forty (40) feet wide with private property on the inland side.
The bay side is improved with a privately constructed bulkhead on public
property. Improvements allowed at this location shall consist of the following:
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1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way line maintained by the City.
2. Landscaping under twenty (24) inches in height and park -like
improvements in the remaining portion of the right-of-way (between the
sidewalk and the bulkhead) shall be allowed if installed and maintained by
the adjoining property owner. Private improvements such as fences, gates,
signs, and living areas shall not be allowed.
3. Access to private piers and floats shall be allowed where a harbor permit
has been granted, but such access structures shall not be expanded beyond
the permit dimensions.
G. Edgewater Avenue - Island Avenue to Alvarado Street. The street right-of-way
in this reach is forty (40) feet wide with private property on the inland side. The
bay side is improved with a sloping beach leading to the waters of the bay.
Improvements allowed at this location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way maintained by the City.
2. The remaining portion of the right-of-way shall be reserved as a public
beach and no private improvements, impediments or boat storage shall be
allowed except for access to existing piers and floats where a harbor or a
mooring permit has been granted, but such access structures shall not be
expanded beyond the original permit dimensions. Any existing permits to
encroach on the right-of-way shall be rescinded
H. Edgewater Avenue - Alvarado Street to Fernando Street. The street right-of-way
in this reach is fifty (50) feet wide. The bay side is improved with a sloping beach
leading to the waters of the bay. The private lots bayward of the public right-of-
way are under water and within State Tidelands. Improvements allowed at this
location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way maintained by the City.
2. The remaining portion of the right-of-way shall be reserved as a public
beach and no private improvements, impediments or boat storage shall be
allowed except for access to existing piers and floats where a harbor permit
has been granted, but such access structures shall not be expanded beyond
the original permit dimensions.
I. Bay Front Street Ends
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L-6
1. Bay front street ends at beach level may contain two (2) foot wide planting
areas bounded by redwood or concrete strips and containing hedges no
more than two (2) feet in height above the adjacent surface. The planting
areas may be installed:
a. At each side of the prolongation of the street and extending no more
than fifteen (15) feet from the end of the paved street.
b. At the end of the paved street, except that a twelve (12) foot wide
opening must be left for City emergency and maintenance
equipment, and pedestrians to enter the beach area.
2. Bay front street ends where tidal flow prevents standard installation may
be landscaped, subject to the prior approval by the City of specific plans
prepared by the applicant. Access to beach areas shall be provided for in
any such specific plans.
3. Improvements shall be installed at the expense of the adjacent property
owners.
4. Landscape maintenance and watering shall be provided by the adjacent
property owners to the satisfaction of the City. A sprinkler system
connected to the adjacent property shall be installed in each planter
J. Unimproved Ocean Front Street Ends
1. Improvements shall be installed at the expense of the adjacent property
owners.
2. Landscape maintenance and watering shall be provided by the adjacent
property owners to the satisfaction of the City. A sprinkler system
connected to the adjacent property shall be installed in each planter.
3. All work shall be installed to grades established by the Public Works
Department.
4. A four (4) foot wide sidewalk shall be provided on each side of the street
right-of-way adjacent to the property line.
5. A minimum of twelve (12) feet of unobstructed access to the beach in the
center of the right-of-way shall be surfaced with brick, asphalt, concrete or
artificial turf, or an equivalent surfacing approved by the City.
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L-6
a. Portland Cement Concrete. A minimum six (6) inches over native
compacted material.
b. Asphalt Concrete. A minimum two (2) feet six (6) inches of asphalt
concrete over a six (6) inch thick aggregate.
C. Brick. Brick installed over four inches of imported aggregate base.
A dry mix of one-to-one cement and clean plaster sand to be swept
into the one-quarter (1/4) to one-half (1/2) inch space between
bricks. The dry mix shall be moistened with a fine spray of water
after it is in place.
6. Planters five (5) feet wide shall be provided between the side and the center
access along a portion of each side of the street with a heavy emphasis on
drought resistant plant materials. Plant materials shall be installed to City
specifications. A six (6) inch to eighteen (18) inch high lip of concrete, brick
or rock may be installed as part of the planter.
7. Special provisions shall be made in the design when garage access is
required from street ends.
8. Where unusually large quantities of sand exist in a street end area, the City
shall assist the adjacent owners by moving the sand to an area determined
by the City.
K. Unimproved Alleys that End at the Ocean Front
1. Improvements shall be installed at the expense of the adjacent property
owner.
2. All work shall be installed to grades established by the Public Works
Department.
3. Landscaping of potted plants shall be permitted in the portion of the alley
right-of-way that terminates at the ocean front sidewalk. A six (6) foot wide
inviting passageway shall be maintained for pedestrian access.
4. Where vehicles or pedestrians will travel, alleys may be surfaced with brick,
asphalt, concrete or equivalent surfacing.
5. Improvements shall extend from the nearest street of alley improvement to
the northerly line of the ocean front.
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L-6
If, in the opinion of the Public Works Department, the nature or location of this type of
encroachment is such that Planning Commission review is warranted, the Department
may forward the application to the Planning Commission for original action in
accordance with the procedures set forth for granting waivers for private encroachments
that would otherwise be prohibited.
The City Manager is authorized to execute, on behalf of the City, agreements for non-
standard improvements, which are entered into pursuant to this section or other
authorization.
Private encroachments not requiring a permit.
A. Parkway lawn, ground cover and drought tolerant planting. Parkway areas with
the exception of carriage walks/ parkway paving/ artificial turf shall be entirely
planted with lawn, ground cover and/or drought tolerant planting.
B. Parkway sprinkling systems.
C. Use of public streets and projections over public property, which are covered by
the latest adopted edition of the California Code of Regulations Title 24 under a
valid building permit issued by the City.
Encroachments on public sidewalks
Newport Beach sidewalks are a desirable place to walk, stroll and jog and it is, therefore,
the policy of the City that public sidewalks are to provide unobstructed passage
whenever possible.
Sidewalks shall be reserved for public use and the rights of the public shall not be
diminished by the installation of benches, planters, bicycle racks, etc., by private entities
nor by the installation of facilities by public utilities or other public agencies. It is the
policy of the City that encroachments on public sidewalks shall be subject to the
following:
A. General
1. Permitted encroachments shall not reduce the sidewalk width available for
normal pedestrian movement.
2. Permitted encroachments may be located in areas between tree wells or
other existing improvements as long as they do not interfere with
pedestrian travel.
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L-6
3. Permitted encroachments shall be located at least eighteen (18) inches from
the curb face. In areas where vehicles do not park or otherwise extend over
the sidewalk, this setback may be reduced.
4. Permitted encroachments shall not be located within thirty-six (36) inches
of a parking meter or street light, nor shall they be located where they will
interfere with the normal use of other facilities.
5. Encroachments shall not block access from parked cars.
6. They shall not be located within ten (10) feet of a crosswalk, fire hydrant or
driveway.
7. Encroachments may not be chained or otherwise anchored to any tree,
streetlight, parking meter or other property.
8. Applicant shall pay all costs for City and/or the California Department of
Transportation ("CalTrans") permit processing where necessary.
9. Applicant shall pay all costs associated with the installation and
maintenance of the encroachments by the City or private installer.
B. Public Benches
1. When applying the above requirements to benches, allowance shall be
made for the space required for a person sitting on the bench.
2. Benches to be installed in an area where there is a theme or bench style shall
conform to that theme or style.
C. Public Bicycle Racks
1. Bicycle racks shall be located to allow bicycles to extend five (5) feet from
the center of the rack and comply with the above requirements.
History
1969,08/25) - L-6 - Adopted (Private Encroachments in Public Rights -of -Way)
1969,08/25) - I-12 - Adopted (Ocean Front Street -End Improvements)
1970, 03/ 09) - L-6 - Reaffirmed
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1970, 03/ 09) - I-12 - Amended
1971, 02/08) - L-6 - Reaffirmed
1972,02/14) - L-6 Amended
1972, 02/14) -1-12 Reaffirmed
1973,12/ 10) - L-6 - Reaffirmed
1973,12/ 10) - I-12 Amended
1974,11/ 11) - L-6 Reaffirmed
1974,11/ 11) -1-12 Amended
1975,08/11) - L-6 Amended
1977, 03/14) - L-7 Adopted (Encroachments and Bay Access on Buena Vista Blvd. -
Edgewater Ave. Between bay Ave. and Fernando St.)
1977, 09/ 12) - L-7 - Reaffirmed
1981, 02/ 09) - L-6 Amended
1981, 02/ 09) -1-12 Amended
1981, 08/24) - L-10 Adopted - incorporating I-12 & L-10
1981,11/23) - L-6 - Amended
1982,11/08) - L-10 Amended
1986,10/27) - L-6 - Amended
1987, 01/26) - L-6 - Amended
1987,07/13) - L-6 - Amended
1989,02/ 13) - L-6 - Amended
1989,08/14) - L-6 - Amended
1989,11/27) - L-6 - Amended
1989,11/27) - L-10 Amended
1991,12/09) - L-6 - Amended
1992,12/14) - L-6 - Amended
1993, 01/11) - L-18 Adopted (Encroachments on Public Sidewalks)
1993, 07/12) - L-6 - Amended
1994,01/24) - L-6 - Amended
1994, 01/24) - L-7 - Reaffirmed
1994, 01/24) - L-8 _ Amended - changed to L-8
1994, 01/24) - L-15 Amended - changed to L-15
1994, 05/09) - L-6 - Amended
1995,02/27) - L-6 - Amended
1996,02/26) - L-6 - Amended
1996,02/26) - L-15 Amended
2001, 05/08) - L-6 - Amended
2001, 05/ 08) - L-7 - Amended
2001, 05/08) - L-8 - Amended
2015, 01/27) - L-6 - Amended
2018, 08/14) - L-6 - Amended (incorporating L-6, L-7, L-8 & L-15)
2018,11/27) - L-6 - Amended
12
22
Attachment No. PC 2
Draft Resolution with Findings and
Conditions
23
INTENTIONALLY BLANK PAGE24
RESOLUTION NO. PC2021-017
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL
POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO.
N2021-0197 TO RETAIN EXISTING IMPROVEMENTS WITHIN
THE PUBLIC RIGHT-OF-WAY LOCATED AT 3309 OCEAN
BOULEVARD (PA2021-091)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by 3309 Ocean LLC, (“Owner”), with respect to property located
at 3309 Ocean Boulevard, Newport Beach, California and legally described as Lot 1 in
Tract 1257, as shown on a map recorded in Book 38, Page 25 inclusively of Miscellaneous
Maps in the office of the County Recorder of Orange County (“Property”), requesting
approval of an encroachment permit.
2. The Owner requests approval of Encroachment Permit No. N2021-0197 (PA2021-091) to
retain existing non-compliant improvements within the Ocean Boulevard public right-of-
way including site walls, stairs on grade, patio, wood plank driveway bridge, wood erosion
terracing, guardrails, potted plants, planters and a decorative concrete driveway that
encroach up to 52 feet into the 110-foot wide public right-of-way at the Property (“Project”).
3. The requested approvals are not specifically provided for within City Council Policy L-6
(Encroachment in Public Rights-of-Way) (“City Council Policy L-6”). Thus, the Project is
prohibited under Section A (Private encroachments that are prohibited without a waiver
and approval) of said policy. Due to this prohibition, the requested encroachment may only
be approved upon the waiver of City Council Policy L-6 and approval of the encroachment
permit by the Planning Commission.
4. A public meeting was held on July 22, 2021 in the City Council Chambers located at 100
Civic Center Drive, Newport Beach. 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 City Council Policy L-6. Evidence, both written and oral, was
presented to, and considered by, the Planning Commission at this public hearing.
5. The project site is located within the coastal zone and the improvements are appurtenant
to existing approved development and provide access to the abutting development, a
single family home, that is developed consistent with its designated Single-Unit Residential
Detached – (0.0 to 5.9 DU/AC) (RSD-A) and zoned Single-Unit Residential (R-1) by the
certified Local Coastal Program (LCP).
25
Planning Commission Resolution No. PC2021-017
Page 2 of 5
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This Project is categorically exempt from the California Environmental Quality Act
(“CEQA”) pursuant to Section 15301 and Section 15303 under Class 1 (Existing
Facilities) and Class 3 (New Construction or Conversion of Small Structures) of the
CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because
it has no potential to have a significant effect on the environment.
2. The Class 1 (Existing Facilities) exemption includes 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 proposed improvements are accessory to the
existing single-family residence.
3. The Class 3 (New Construction or Conversion of Small Structures) exemption includes
construction of a single-family residence and related accessory structures in a
residential zone. The proposed improvements, which consist of site walls, stairs on
grade, patio, wood plank driveway bridge, wood erosion terracing, guardrails, potted
plants, planters and a decorative concrete driveway within the public right-of-way, are
accessory to the existing single-family home.
4. The exceptions to this categorical exemption under Section 15300.2 are not applicable.
The Project location does not impact an environmental resource of hazardous or critical
concern, does not result in cumulative impacts, does not have a significant effect on the
environment due to unusual circumstances, does not damage scenic resources within
a state scenic highway, is not a hazardous waste site, and is not identified as a historical
resource.
SECTION 3. REQUIRED FINDINGS.
In accordance with City Council Policy L-6 (Encroachments in the Public Rights-of-Way), the
following findings and facts in support of such findings are set forth:
Finding:
A. The proposed private improvements will not be a detriment to the health, safety and welfare
of the public.
Facts in Support of Finding:
1. The Project does not hinder the present or future use of the public right-of-way, including
sidewalks, and there are no existing City utilities located within the encroachment area.
26
Planning Commission Resolution No. PC2021-017
Page 3 of 5
2. The Ocean Boulevard parkway within the public right-of-way are approximately 52 feet
wide of the overall 110-foot right-of-way width.
3. The Project does not diminish the rights of the public along the Ocean Boulevard right-
of-way. The existing public sidewalk along Ocean Boulevard is at the top of the slope
and will remain unobstructed.
4. Ocean Boulevard slopes downward toward private property and the Pacific Ocean with
an elevation change of approximately 11 feet.
5. Approval would require the Owner to enter into an Encroachment Agreement to allow
the proposed improvements as requested, and any liability associated with the proposed
private improvements would be transferred to the Owner. Additionally, if the need for
public improvements should arise in the future, Owner shall agree to remove all
encroachments at no cost to the City.
Finding:
B. The individual circumstances applicable to this application and the proposed encroachment
are consistent with the public interest.
Facts in Support of Finding:
1. Improvements are complementary to the area; adjacent neighbors have similar private
encroachments within the Ocean Boulevard right-of-way. Some of the adjacent
encroachments are permitted through an encroachment permit and agreement,
whereas others have been constructed without approval.
2. The maximum height of proposed structures in the right-of-way will not exceed three (3)
feet in height above the existing sidewalk grade. Public views along the Ocean
Boulevard sidewalk will remain unobstructed.
3. There are no existing City utilities within the encroachment area.
4. The subject property is located in the coastal zone and the proposed improvements do
not require a coastal development permit in accordance with Newport Beach Municipal
Code (NBMC) Section 21.52.035 (Projects Exempt from Coastal Development Permit
Requirements). NBMC Subsection 21.52.035.C(1) refers to coastal act exemptions
related to existing single-unit residential buildings, including ancillary structures normally
associated with a single-unit residence, such as garages, swimming pools, fences,
storage sheds, but not including houses or self-contained residential units; and
landscaping on the lot, unless they involve a risk of adverse environmental effects. The
existing site walls, stairs on-grade, patios, wood plank driveway bridge, wooden erosion
control terracing, guardrails, potted plants, planters, and decorative concrete driveway
are minor detached structures associated with the existing single-family residence. Their
location and presence do not pose a conflict to coastal resources, coastal access, or
other adverse environmental effects. The encroachments do not alter the existing bluff
27
Planning Commission Resolution No. PC2021-017
Page 4 of 5
oceanward of the existing home. Therefore, the encroachments are exempt from the
requirement for a coastal development permit.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby determines this Project is
categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant
to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and Class 3
(New Construction or Conversion of Small Structures) of the CEQA Guidelines, California
Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a
significant effect on the environment.
2. The Planning Commission of the City of Newport Beach hereby waives City Council Policy
L-6 and approves Encroachment Permit No. N2021-0197 (PA2021-091), subject to the
conditions set forth in Exhibit “A,” which is attached hereto and incorporated by reference.
3. This action shall become final and effective fourteen (14) days following the date this
Resolution is adopted unless within such time an appeal or call for review is filed with the City
Clerk in accordance with City Council Policy L-6 and Chapter 20.64 (Appeals) of the Newport
Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 22ND DAY OF JULY, 2021
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:_________________________
Lee Lowrey, Chairman
BY:_________________________
Curtis Ellmore, Secretary
28
Planning Commission Resolution No. PC2021-017
Page 5 of 5
EXHIBIT “A”
CONDITIONS OF APPROVAL
PUBLIC WORKS DEPARTMENT
1. The Project shall be in substantial conformance with the approved site plan stamped and
dated with the date of this approval.
2. The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
3. The Owner shall comply with all federal, state, and local laws. Material violation of any
of those laws in connection with the use may be cause for revocation of this
Encroachment Permit and any associated Encroachment Agreements.
4. The Owner shall enter into an Encroachment Agreement within one (1) calendar year
upon receipt of approval, otherwise this approval shall automatically expire.
5. The Owner shall maintain the landscaping within the Ocean Boulevard to 36-inches in
height maximum to maintain views from the sidewalk and street.
6. To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless
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 3309 Ocean LLC Encroachment including, but not limited to, Encroachment
Permit No. N2021-0197 (PA2021-091). This indemnification shall include, but not be
limited to, damages awarded against 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 Owner, City, and/or the parties initiating or bringing such
proceeding. The Owner shall indemnify the City for all of City's costs, attorneys’ fees, and
damages which City incurs in enforcing the indemnification provisions set forth in this
condition. The Owner shall pay to the City upon demand any amount owed to the City
pursuant to the indemnification requirements prescribed in this condition.
29
INTENTIONALLY BLANK PAGE30
Attachment No. PC 3
Owner’s Letter dated March 24, 2021
31
INTENTIONALLY BLANK PAGE32
33
INTENTIONALLY BLANK PAGE34
Attachment No. PC 4
Site Photos
35
INTENTIONALLY BLANK PAGE36
SITE PHOTOS
37
38
39
40
Attachment No. PC 5
Site Plan
41
INTENTIONALLY BLANK PAGE42
(E)20'-2"(E)24'-0"(E)24'-9"(E)23'-11"(E)20'-1"(E)9'-10"
(E)10'-2"(E)22'-0"
(E)20'-1"(E)1'-11"(E)41'-0"(E)5'-0"(N)7'-6"(E)4'-3"(E)11'-0"(E)3'-9"(E)13'-10"UpperFloorDemo7'-2"(E)20'-0"Upper FloorDemo3'-0"
(E)DN
(E)DN
(E)DN
(E)DN (E)DN (E)DN (E)DN
(E)DN
(E)DN
(E)DN
(E)DN
(E)DN
(E)DN
(E)DN
3309 Ocean Blvd.
APN: 052-120-18
(N)1'-0"(N)4'-9"
(N)8'-3"
(N)3'-6"
(N)19'-11"
(N)22'-0"
(N)DeckFS: 20.50'
(E)Deck20.50'
Line of (E) Roof abv.
(E) ADU to Remain.
Line of (E) Wall below
(E)Carportbelow
(E)Carportbelow
(E)T.O. Rail24.00'
(E)ADU
(N)T.O. Rail24.00'
(E)TW: 70.78'
(E) TerraceFS: 70.35'
(E)TerraceFS: 65.50'
(E)TW: 71.90'(0.9' Ht.)
(E)TW: 72.63'(1.63' ht.)
(E)Planter
(E)Planter
(E)Deck Drivewayto RemainRef. Gen. SiteNote #9.
(E)TW: 57.81'
(E)TW: 60.43'
(E)DeckFS: 50.47'
Line of Demo at Upper level Entry
(E) Chimney to be removed
(E) Concrete Steps on gradeto remain
Ocean Blvd.E. Shore Ave.
(E) Primary Single FamilyResidence Footprint(N)DeckAbv.(N)T.O. Rail24.00'
(E)FS21.50'
Line of (N) Deck abv.
Line of (N) CantileveredAddition abv.
Line of (E) Deck abv.
(N)Additionabv.
Property Line
Property Line
(E)Concrete Driveway ongrade to Remain- Requires EncroachmentPermit & Agreement
(E)ConcreteDriveway ongrade toRemain
(E) Driveway Gate to remain
(E) Site Fence to remain
(E) Site wall to remain
Line of Neighboring Residence
(E)TW:15.75'
Property Line
Line of Deck abv.
Line of Deck abv.
(E)15'-7"(N)14'-4"1'-0"10'-3"8'-8"Line (E) Entry Deck
(N)1'-8"
(E)21'-0" Clear
Line of (E) Garage clear space
(E)19'-0" Clear(N)82'-1"
(E)TW: 59.02'
Line of (E) Residence abv.
(5)EG: 48.00'
(4)EG: 63.00'(2)EG: 67.50'(1)EG: 69.90'
(3)EG: 65.00'(5)EG: 12.60'(4)EG: 14.70'(3)EG: 16.50'(2)EG: 23.50'(1)EG: 33.00'
(5)EG: 13.20'(4)EG: 15.60'(3)EG: 20.50'(2)EG: 27.25'(1)EG: 33.00'(1)EG: 65.45'(2)EG: 63.48'(3)EG: 61.34'(4)EG: 58.27'(5)EG: 48.00'
(E) Site Stairs to Remain
(E)ADU Ridge30.79'(18.34' abv EG)
(E) Bathroom locatedin FYSB per MD4405
(E)4'-0"
(E) Slope &Landscape toRemain'
33' Contour
48' Contour(E)3'-9"(E)30'-0"(E)5'-0"Limits ofBluff OverlaySetbackDevelopmentArea 'C'Limits of Bluff Overlay SetbackDevelopment Area 'A'Limits of Bluff Overlay SetbackDevelopment Area 'A'
(E)TW: 88.02'(2.02' ht.)(E)TW: 86.30'(2.15' ht.)(E)TW:84.20'(2.40' ht.)
(N) Sewer Cleanout, perCONB STD-406-L. Connectto (E) Sewer lateral, VIF
(N) Screen, top-hung from base of(N) addition. To make no contactwith (E) Grade. Re: Struct.
(N) 24" Caissons,Re: Struct.
(N)DS
(N)DS
(N)T.O. Rail53.97'
(N)OD
(E)2%(E) 4" Solid Drainline
(E)12" CatchBasin AD,4" outlet
(E
)Demo3'-0"(E)Deck abv. tobe removed
(E) Site Walls to remain.Reference Gen. Site Note #9.
Line of (E) Guardrail to remain, +36"
(E
)3'-0
"(E)18'-10"Wood Plank Driveway(E)Plank Driveway:81.31'
(E)PlankDriveway:79.66'
(E)12'-8"
(E)11'-4"w/in R-O-W (E)46'-6" Concrete Driveway on grade
(E)3'-6"
(E)7'-10"(E)7'-11"(E)8'-4"(E)4'-9"
(E) Site walls to remain.Reference Gen. Site Note #9.
Line of (E)Wood Plank Driveway abv.
(E) Stair on grade to remain.Reference Gen. Site Note #9.
Line of Neighboring Residence
(E) Site Gate to remain
Revised location of (E) Electrical Panel
All proposed (N) Roof & deck drainageto be routed to (E) 12" Catch basinarea drain with 4" solid drainline (E)5'-3"(E)TW: 89.06'(1.06' ht.)
(E) Site Walls to remain 28'-10"
(E)15'-9"
Stair on grad
e
(E)Planter
(E) Planters, (E) Lights to beremoved from R-O-W
±(E)38'-4" Guardrail
(E)Landscaping toRemain. Max 36"abv. (E) curb
(E)TW: 72.63'(5.18' ht.)
(E)TW: 72.66'(2.16' ht.)
(E)TW: 71.81'(1.21' Ht.)
(E) Stone steppers to be removed
(E) Wood erosion control terracingto remain, below bridge 6'-0" x 18'-3"
6'-0" below18'-3" below30"Ø Pot 39"Ø Pot
(E) Pots to remain, max 36" height
(E) Rocks to be removed
(E)
Wall to be removed
(N) Deck- Dashed when above
(E) Single Family Residence & ADU- Dashed when above
(N) Living Space- Dashed when above
Limits of Bluff Overlay Setbacks- Development Area 'C'
(E) Bathroom located in Front YardSetback per MD4405
⅊
⅊
(E) Deck to be Removed
(E) Private Improvements within OceanBlvd right of Way
(E) Light to be removed from within OceanBlvd right of way(E)
(E) 2" Ø Steel Guardrail beyond@ Interior side of Driveway toremain, no change
⅊
Ocean Blvd. Right-of-Way
(E)TW: 84.20'
(E)TW: 88.02'
Face of (E) Curb @ Ocean Blvd.
(E)46'-6" Concrete Driveway on grade
(E)TW: 89.06'
(E)11'-4"(E)10'-2"
Wood PlankDrivewayWood PlankDriveway
(E) Primary Single Family Residence
(E) Wood Plank Driveway to remain21'-6"
(E) 2x4 Wood Plank Decking, typ.
(E) 2x10 Wood Joist @ 12-inch o.c.
(E) 4x12 Wood Beam
(E) 4-inch Pipe column @ 8'-0" o.c.
(E)TW: 86.30'
3'-6"
(E) Site Wall7'-10"(E) Site Wall7'-11"(E) Site Wall8'-4"
(E) SiteWall4'-9"
(E)FS: 81.09'
(E)FS: 69.90'
(E) Site walls to remain28'-10"
Line of (E) Concrete Drivewayon grade to remain, nochange
(E)Terrace: 70.35'
(E) BeginPlank Driveway:81.31'
(E)PlankDriveway:79.66'±8'-4" clr.(E) Stair on grade (E) Site Walls to remain
(E) Guardrail w/ 4x4 uprights and4" min o.c. wire infill
(E)3'-6"(E)3'-0"(E) Wood erosion control terracing, 12" max abv grade
DATE ISSUE/REVISION REVIEW
DRAWING DESCRIPTION
PROJECT
All drawings and written material appearingherein constitute original and unpublishedwork of the architect and may not beduplicated, used or disclosed without thewritten consent of Laidlaw Schultz Architects.
3111 Second AvenueCorona del Mar, CA 92625-2322(949) 645-9982 Fax: (949) 645-9554www.LSarchitects.com
SHEET NO.
Site Plan
Scale: 1/8" = 1'-0"
North
Plot Plan1
General Site Notes2
1. Provide 2% slope grade away from structures within 5'-0" of structure.
2. Provide approved backwater drainage valve for fixtures located below the elevation of next upstreammanhole cover. Fixtures above this elevation shall not discharge through valve.
3. All downspouts, area drains and planter drains to be connected to solid drainlines and conveyed tostreet or to sump and pumped back to street.
4. An approved encroachment permit is required for all work activities within the public right-of-way.
5. If any of the existing public improvements surrounding the site is damaged, new concrete sidewalk, curband gutter, alley/street pavement, and other public improvements will be required by the City at thetime of private construction completion. Additionally, if existing utilities infrastructure are deemedsubstandard, a new 1-inch water service, water meter box, sewer lateral and/or cleanout with box andlid will be required. 100% of the cost shall be borne by the property owner (Municipal Codes 14.24.020and 14.08.030). Said determination and the extent of the repair work shall be made at the discretion ofthe Public Works Inspector.
6. An encroachment agreement is required for all non-standard improvements within the publicright-of-way. All non-standard improvements shall comply with City Council Policy L-6
7. All work related to water in the public right-of-way shall be performed by a C-34 licensed PipelineContractor of an A Licensed General Engineering Contractor.
8. All work related to wastewater in the public right-of-way shall be performed by a C-42 licensed SanitationSewer Contractor or an A Licensed General Engineering Contractor.
9. Planning Commission approval required to retain existing private improvements within the OceanBoulevard right of way. (Walls, Stairs, Patios, Wood plank driveway) that do not comply with City CouncilPolicy L-6, prior to final of the building permit. See Callouts on Site Plan Below
Legend3Right -of-Way Existing Improvements Elevation/Section4
All drhereinworkduplicwritte
3111 Coron
PA2021-091 Attachment No. PC 5 - Site Plan
43
PA2021-091 Attachment No. PC 5 - Site Plan
44
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PA2021-091 Attachment No. PC 5 - Site Plan
45
Ocean Boulevard Blufftop Committee
CdMRA | P.O. Box 1500 | Corona del Mar CA 92625 | VM/Text 949.478.2454
CDMRA.ORG | INFO@CDMRA.ORG | FACEBOOK.COM/CDMRA
MEMO to: Newport Beach Planning Commission Re: PA 2021-091, 3309 Ocean Blvd
On behalf of the Corona del Mar Residents Association, we request that you move this
item from the consent items so that there can be a discussion. We feel that the existing
landscaping does not conform to the L-6 general policy for the R/W that should be re-
served for public use or open space.
We would like you to be aware of our Citizen driven effort for a Master Vision Plan for the
upgrading of future improvements. The City Council has requested the PB&R Commission
to review this at their next regular meeting. Some of our goals are:
1. Enhance the three existing “vista points” for a better viewer experience. Enhance
the viewing areas, provide more formal and informal seating the softscape areas.
2. Develop new Vista Points to take advantage of the Ocean view.3. Improve the walkway links between the vista points, place a higher emphasis on thepedestrian environment than the street.4.Review the City encroachment agreements and analyze areas within the 50’ R/W
that could be re-configured to provide more public benefit, while still providing ac-cess and security to the bluff residences.
We are concerned that waiving the Council Policy L-6 for this project could jeopardize the
future of this pedestrian scenic corridor. We want the corridor to be more like a park than
just a sidewalk. However, we support this waiver request for the “hardscape” with the con-
dition that a landscape plan be submitted for approval by the PB&R Commission.
It is important that the 3309 right of way can be redesigned with landscape to better suit
the scenic walkway.
Planning Commision - July 22, 2021 Item No. 2a - Additional Materials Received 3309 Ocean LLC Encroachment (PA2021-091)
July 22, 2021, Planning Commission Item 2 Comments
These comments on a Newport Beach Planning Commission agenda item are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229).
Item No. 2. 3309 OCEAN LLC ENCROACHMENT (PA2021-091)
I take sharp exception to the discussion of “Local Coastal Program” on page 3 of the staff report
(handwritten page 5) and its incorporation as Fact in Support of Finding B.4 in the proposed
resolution (starting on handwritten page 27).
The “fact” ends with the conclusion that with respect to the private improvements in the 50 foot
wide public right-of-way between the Ocean Boulevard sidewalk and the private property line tht
“the encroachments are exempt from the requirement for a coastal development permit” based
on the author’s reading of NBMC Subsection 21.52.035.C.1.
The author quotes from one sentence of this subsection to say it exempts development of this
type associated with single family residences, “unless they involve a risk of adverse
environmental effects.”
Deciding they do not pose such a risk, he concludes the development is exempt.
This strikes me as very similar to the Community Development Director’s attempt at the July 8
Planning Commission meeting to explain his Determination that for four hotels, allowing them to
use 30% of their General Plan hotel room allocations for residential dwelling unit development,
instead, would, if processed as an amendment to the General Plan, not require the need for a
City Charter Section 423 public vote. In explaining this (see July 8 video at 14:13), he pointed to
the first two sentences of Section 423, noting that they said the entire section applied only when
the change to the General Plan significantly increased density or intensity of land use. In his
opinion, adding an allowance for 247 new dwelling units in statistical area L1 and 245 in area L4
would not cause any change in density or intensity as long as they were required to be offset by
the removal of a comparable number of hotel rooms. If one didn’t know what density means,
that might sound plausible until one reads the next sentence, which the Director carefully chose
to ignore. It defines a significant increase in density as “over 100 dwelling units (density)” and
says nothing about that standard not applying when the added dwelling units must be
accompanied by a reduction in other kind of development.
Here, it is true that the first sentence of NBMC Subsection 21.52.035.C.1 exempts from the
otherwise-applicable Coastal Development Permit requirement many kinds of development
associated with “Existing Single-Unit Residential Buildings” that do not “involve a risk of adverse
environmental effects.”
But to reach the conclusion that exempts these improvements, if they were newly proposed, one
has to ignore the following sentence, which introduces a number of instances in which the
exemption explicitly does not apply.
Planning Commision - July 22, 2021 Item No. 2b - Additional Materials Received 3309 Ocean LLC Encroachment (PA2021-091)
July 22, 2021, PC agenda Item 2 comments - Jim Mosher Page 2 of 2
The improvements that are the subject of this encroachment agreement would be ineligible for a
CDP exemption for many of the reasons introduced by that second sentence.
Specifically:
1. Under Subsections 21.52.035.C.1.a and 21.52.035.C.1.b, they would require a CDP
because they are “within fifty (50) feet of the edge of a coastal bluff.”
2. Under Subsection 21.52.035.C.1.d.iii, the establishment of “any significant nonattached
structure such as a garage, fence” – which the resolution says are exempt – are
explicitly required to have a CDP when they are, as here, “located between the sea and
first public road paralleling the sea.”
Staff’s or the Planning Commission’s opinion as to whether these improvements “involve a risk
of adverse environmental effects” is irrelevant. Contrary to what they draft resolution says, they
would have to have a CDP if they were newly proposed.
Likewise, under Subsections 21.52.035.C.1.d.i and 21.52.035.C.1.d.ii, the remodeling project
that this seems related to would require a CDP if it adds more than 10% to the existing floor
area or building height.
Moreover, the improvements in question here aren’t even on a single-unit residential lot. They
are in public right-of-way. Staff cites nothing in the NBMC that exempts development in the
public right-of-way from CDP requirements, and I don’t believe there is any. Indeed, proposals
for private development on public land would seem precisely the kind of development needing
Coastal Act scrutiny through the CDP process.
All this said, it is possible the present encroachment agreement does not require a CDP, but not
for the reasons stated in the staff report or resolution.
Instead, if it is true, as the staff report implies, that the existing improvements have existed since
before the Coastal Act and no changes to them are proposed, then it could be argued that no
new development is being proposed in the right-of-way area. In the absence of a proposal to
develop something, it would seem clear no development permit is needed, coastal or otherwise
(unless the act of approving the agreement is itself regarded as development under the Coastal
Act).
Planning Commision - July 22, 2021 Item No. 2b - Additional Materials Received 3309 Ocean LLC Encroachment (PA2021-091)