HomeMy WebLinkAbout2.0_Aerie Community Association Encroachment_PA2021-166
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
August 19, 2021
Agenda Item No. 2
SUBJECT: Aerie Community Association Encroachment (PA2021-166)
Encroachment Permit No. N2021-0322
SITE LOCATION: 101 Carnation Avenue
APPLICANT: Brion Jeannette Architecture
OWNER: Aerie Community Association
PLANNER: Abby Cooke, Associate Civil Engineer
949-644-3323, acooke@newportbeachca.gov
PROJECT SUMMARY
A request to waive City Council Policy L-6, to retain non-compliant private improvements
including a 42-inch high wrought iron guardrail on top of a 40-inch maximum height retaining
wall below the sidewalk elevation that encroaches up to 4 feet 2 inches into the 50-foot wide
Carnation Avenue public right-of-way.
RECOMMENDATION
1) Find the project exempt from the California Environmental Quality Act (CEQA)
Guidelines pursuant to Section 15305 under Class 5 (Minor Alterations in Land Use
Limitations), because it has no significant effect on the environment;
2) Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to retain non-
compliant private improvements including a 42-inch high wrought iron guardrail on top
of a 40-inch maximum height retaining wall below the sidewalk elevation that
encroaches up to 4 feet 2 inches into the 50-foot wide Carnation Avenue public right-
of-way (“Project”), contingent upon all conditions of the Encroachment Permit process
being met (Attachment No. PC 1); and
3) Adopt Resolution No. PC2021-022 waiving City Council Policy L-6 and approving
Encroachment Permit No. N2021-0322 (Attachment No. PC 2).
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Aerie Community Association Encroachment (PA2021-166)
Planning Commission, August 19, 2021
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VICINITY MAP
INTRODUCTION
An application was filed by Brion Jeannette Architecture (“Applicant”), with respect to the
property located at 101 Carnation Avenue, commonly known as Aerie, requesting a
waiver of City Council Policy L-6, to retain non-compliant private improvements including a
42-inch high wrought iron guardrail on top of a 40-inch maximum height retaining wall below
the sidewalk elevation that encroaches up to 4 feet 2 inches into the 50-foot wide Carnation
Avenue public right-of-way.
SUBJECT
PROPERTY
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Aerie Community Association Encroachment (PA2021-166)
Planning Commission, August 19, 2021
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City Council Policy L-6 (“Policy”) prohibits the proposed guardrail and wall.
Please see attached applicant letter dated July 15, 2021, site photos and site plan
(Attachment Nos. PC 3, 4 and 5 respectively).
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 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, landscaping, etc., which encroach in
excess of one (1)-foot into the public right-of-way or exceeds three (3)-feet in height…”
The previously approved Aerie plans proposed a 2:1 landscaped slope transitioning from
the sidewalk within the public right-of-way to the concrete pad housing the transformer
located on private property. Instead, the 42-inch-high wrought iron guardrail above a 40-
inch-high retaining wall adjacent to the sidewalk were constructed without the benefit of
a permit or revisions to the approved plans.
The existing improvements are complementary to the area; adjacent neighbors 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 Project, as constructed, does not diminish
the rights of the public, present and future, along the Carnation Avenue right-of-way.
There are no City utilities located within the encroachment area. As part of the Aerie
Development, a 4-foot-wide public sidewalk was constructed and a public bench with an
unobstructed ocean view was installed along the property frontage within the public right-
of-way. Additionally, the guardrail does not obstruct ocean views and protects the public
from the drop off to the recessed transformer area.
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(2) refers to Coastal Act exemptions
related to existing structures other than single-unit residences or public works facilities,
including all fixtures and other structures directly attached. This exemption includes minor
accessory structures such as the construction, placement, or establishment of any
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nonattached structure such as a garage, fence, shoreline protective works or docks,
unless they involve a risk of adverse environmental effects. The existing wrought iron
guardrail and retaining wall are minor detached structures associated with the existing
multi-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 multi-family development.
Therefore, the encroachments are exempt from the requirement for a coastal
development permit.
Summary
Staff supports a waiver of Council Policy L-6 to retain non-compliant private
improvements consisting of a 42-inch-high wrought iron guardrail on top of a 40-inch
maximum height retaining wall below the sidewalk elevation.
Should the Planning Commission approve the waiver to retain the private improvements
and appurtenances, staff recommends an encroachment agreement consistent with
Policy L-6. An encroachment agreement would allow the improvements as requested,
and transfer any liability associated with the private improvements 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. This provision has been
incorporated as a condition of approval. 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 15305 under Class 5 (Minor Alterations in Land Use
Limitations) because it has no potential to have a significant effect on the environment.
Class 5 exempts minor alterations in land use limitations in areas with an average slope
of less than 20 percent, which do not result in any changes in land use or density including
the issuance of minor encroachment permits. The proposed minor encroachments consist
of a 42-inch high guardrail on a 40-inch maximum retaining wall below the sidewalk elevation
within the public right-of-way. The developed area of the project site above the bluff area
has an average slope of less than 20 percent and the proposed structures do not involve
any changes in land use or density. The proposed encroachments therefore qualify under
the Class 5 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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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:
Abby Cooke
Associate 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 Applicant Letter dated July 15, 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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Attachment No. PC 2
Draft Resolution with Findings and
Conditions
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RESOLUTION NO. PC2021-022 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS FOR PUBLIC RIGHT-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2021-0322 TO RETAIN IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 101 CARNATION
AVENUE (PA2021-166)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Brion Jeannette Architecture, (“Applicant”), with respect to property located at 101 Carnation Avenue, commonly known as Aerie, Newport Beach, California and legally described as Lot 1 in Block D, as shown on a map recorded in Book
928, Page 49-50 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County (“Property”), requesting approval of an encroachment permit. 2. The Applicant requests approval to retain non-compliant private improvements including a 42-inch high wrought iron guardrail on top of a 40-inch maximum height retaining wall
below the sidewalk elevation that encroaches up to 4 feet 2 inches into the 50-foot wide
Carnation Avenue public right-of-way (“Project”). 3. The requested approvals are not specifically provided for within 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 with approval of the encroachment permit by Planning Commission. 4. The Property is located within the coastal zone.
5. A public meeting was held on August 19, 2021, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. (the “Ralph M. Brown Act”) and City Council Policy L-6 (Encroachments in Public Rights-
of-Way). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This Project is categorically exempt from the California Environmental Quality Act
(“CEQA”) pursuant to Section 15305 under Class 5 (Minor Alterations in Land Use Limitations) 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.
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Planning Commission Resolution No. PC2021-022 Page 2 of 5
2. The Class 5 (Minor Alterations in Land Use Limitations) exemption includes minor alterations in land use limitations in areas with an average slope of less than 20 percent,
which do not result in any changes in land use or density including the issuance of minor
encroachment permits. The encroachments consist of a 42-inch high guardrail on a 40-inch maximum retaining wall below the sidewalk elevation within the public right-of-way. The developed area of the project site above the bluff area has an average slope of less than 20 percent and the structures do not involve any changes in land use or density.
The encroachments therefore qualify under the Class 5 exemption.
3. 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 Carnation Avenue public right-of-way is approximately 10 feet from the face of the
curb to the property line. The overall Carnation Avenue public right-of-way is 50-foot wide. There are no City utilities located within the encroachment area.
2. The Project does not diminish the rights of the public along the Carnation Avenue right-of-way. There is an existing 4-foot wide sidewalk within the Carnation Avenue right-of-
way, which will remain at its current width.
3. Carnation Avenue slopes gently downward and the Property slopes down toward the 30-foot high bluff edge and the Pacific Ocean. The project site has a slope of approximately 13 percent to the bluff.
4. The rights of the public, present and future, are not diminished by the installation of
private improvements within the public rights-of-way. The wrought iron guardrail does
not obstruct ocean views. Additionally, as required by the Aerie development Conditions of Approval, a public bench with an unobstructed ocean view was installed along the property frontage within the public right-of-way.
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
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Planning Commission Resolution No. PC2021-022 Page 3 of 5
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.
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 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 42-inch high wrought iron guardrail is installed along the edge of the sidewalk. The sidewalk is up to 40 inches above the adjacent parkway elevation and protects the Public
from falling into the recessed transformer pit.
3. The 42-inch high guardrail protects from the public accessing a transformer located approximately 4 feet 2 inches away on private property.
4. There are no existing City utilities within the encroachment area.
5. The 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(2) (Project Exempt from Coastal Development Permit Requirements, Coastal Act Exemptions) refers to Coastal Act exemptions related to existing structures other than single-unit residences or public
works facilities, including all fixtures and other structures directly attached. This
exemption includes ancillary structures such as the construction, placement, or establishment of any nonattached structure such as a garage, fence, shoreline protective works or docks, unless they involve a risk of adverse environmental effects making them significant. The existing wrought iron guardrail and retaining wall are minor
detached structures associated with the existing multi-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 multi-family development. 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 finds this Project is categorically
exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section
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Planning Commission Resolution No. PC2021-022 Page 4 of 5
15305 under Class 5 (Minor Alterations in Land Use Limitations) 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. N2021-0322, 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 the provisions of Title 20 (Planning and Zoning), of the Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 19TH DAY OF AUGUST, 2021 AYES:
NOES:
ABSTAIN: ABSENT:
BY:_________________________ Lee Lowrey, Chairman
BY:_________________________ Curtis Ellmore, Secretary
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Planning Commission Resolution No. PC2021-022 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 Applicant shall process a revision to the Building Plans to reflect the “as-built” conditions.
6. Owner shall remove all encroachments at no cost to the City if the need for public
improvements should arise in the future. 7. 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 Aerie Community Association Encroachment (PA2021-166) including, but not
limited to, Encroachment Permit No. N2021-0322. 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.
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Attachment No. PC 3
Applicant Letter dated July 15, 2021
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Attachment No. PC 4
Site Photos
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Attachment No. PC 5
Site Plan
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PA2021-166Attachment No. PC 5 - Site Plan43
PA2021-166Attachment No. PC 5 - Site Plan44
From:Cooke, Abigail
To:Rodriguez, Clarivel; Lee, Amanda
Subject:PA2021-166 - Resident Concern
Date:Monday, August 16, 2021 3:17:22 PM
Good afternoon,
Please see email below regarding a resident concern for 101 Carnation Avenue Encroachment.
Thank you,
ABBY COOKE, P.E.
Associate Civil Engineer | Public Works Department
P: 949.644.3323 F: 949.644.3318
100 Civic Center Drive, Newport Beach, CA 92660
-----Original Message-----
From: Melody Robinson <melodyrsma@yahoo.com>
Sent: Monday, August 16, 2021 2:28 PM
To: Cooke, Abigail <acooke@newportbeachca.gov>
Subject: Aerie Project 101 Carnation Ave, Corona Del Mar, CA
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content
is safe.
Project file No.: PA2021-166, Activity NO.: N2021-0322
Abby, thank you for taking the time to talk to me about this Public Notice Hearing today.
I do not approve of 4 feet 2 inches encroachment on Carnation’s public right of way. I walked to the proposed fence
area and saw it is already built. Which means they built it without permit and approval. I find this disrespectful and
unfair to all of us that live in the community.
Thank you,
Melody & Mark Robinson
Sent from my iPad
Planning Commission - August 19, 2021 Item No. 2a - Additional Materials Received Aerie Community Association Encroachment (PA2021-166)
From: Craig Winchester <craig.winchester@ptaxadvisory.com>
Sent: Thursday, August 19, 2021 4:15 PM
To: Cooke, Abigail <acooke@newportbeachca.gov>
Cc: Donnie Lee <dogland69@hotmail.com>
Subject: PA2021-166 - Aerie Community Association Encroachment
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
Abby,
We are writing you concerning the non-compliant encroachment on Carnation at the Aerie condos.
My family bought a house around the corner approximately two years ago and decided to move
here full time in Match of last year. We moved from Los Angeles. We had these types of issues in LA.
Bottom line – in our experience it is not a good idea to give these types of accommodations (i.e. non
compliant improvements / encroachments). This impacts our right away / view / access of the
neighborhood. After talking to several individuals it is clear that this was / is a controversial project.
What is also clear is that the development was required to do certain items in order to be approved.
For instance the park bench which views the ocean. I am particularly troubled by this encroachment
appears to be about limiting access to the beach and discouraging those who go to the public bench
to enter the property. We are curious if this is truly a private only access point to the beach down
below. In any event, one thing we like about this CDM neighborhood are the neighborly individuals
who live here. Is this requested variance neighborly? We say no and do not support this
encroachment. We also would like the question answered about beach access.
If you have any questions you can call my cell.
Craig
310 927 3871
Craig Winchester
Partner
Perceptive Tax Advisory Group
O 949-706-4787 /C 310-927-3871
craig.winchester@ptaxadvisory.com
638 Camino de los Mares
Suite H130-474
San Clemente, CA 92673
www.ptaxadvisory.com
This communication is intended only for the individual or entity named above. Any reliance, use, distribution, or the
information contained in and transmitted with this e-mail by anyone other than the recipient named above by the sender is
unauthorized and strictly prohibited. If you have received this communication in error, please notify the sender as soon as
possible. If you do not receive the full communication, please call for resubmission.
Planning Commission - August 19, 2021 Item No. 2b - Additional Materials Received After Deadline Aerie Community Association Encroachment (PA2021-166)
Aerie Community
Association
Encroachment
101 Carnation Avenue
Planning
Commission
Consent
August 19, 2021
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Vicinity Map
Public Works Department 2
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Site Photos
Public Works Department 3
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Site Photos
Public Works Department 4
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Site Photos
Public Works Department 5
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Site Photos
Public Works Department 6
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Public Works Department 7
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Permitted
Grading Plans
Public Works Department 8
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)
Permitted
Grading Plans
Public Works Department 9
Planning Commission - August 19, 2021 Item No. 2c - Additional Materials Presented at Meeting Aerie Community Association Encroachment (PA2021-166)