HomeMy WebLinkAbout00 - AgendaCITY OF NEWPORT BEACH
CITY COUNCIL AGENDA
APRIL 25, 2023
CITY COUNCIL CHAMBERS —100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660
STUDY SESSION — 4:00 P.M. (PUBLIC WELCOME)
CLOSED SESSION — FOLLOWS STUDY SESSION
REGULAR MEETING — 6:00 P.M.
NOAH BLOM, Mayor
WILL O'NEILL, Mayor Pro Tern
BRAD AVERY, Council Member
ROBYN GRANT, Council Member
LAUREN KLEIMAN, Council Member
JOE STAPLETON, Council Member
ERIK WEIGAND, Council Member
GRACE K. LEUNG, City Manager
AARON C. HARP, City Attorney
LEILANI I. BROWN, City Clerk
NOTICE REGARDING PRESENTATIONS REQUIRING USE OF CITY EQUIPMENT
Any presentation requiring the use of the City of Newport Beach's equipment must be submitted to the City Clerk
24 hours prior to the scheduled City Council meeting.
LEVINE ACT
Under the Levine Act, Section 84308 of the Government Code, a party to a proceeding before the City involving a contract
(other than competitively bid, labor, or personal employment contracts), franchise, license, permit, or other entitlement for use,
is required to disclose on the record of the proceeding any contribution in an amount of more than two hundred fifty dollars
($250) made within the preceding 12 months by the party or the party's agent to any elected or appointed officer of the City. If
you have made a qualifying contribution, please ensure to make this disclosure on the record.
PUBLIC HEARINGS
If in the future, you wish to challenge in court any of the matters on this agenda for which a public hearing is to be conducted,
you may be limited to raising only those issues which you (or someone else) raised orally at the public hearing or in written
correspondence received by the City at or before the hearing.
NOTICE TO THE PUBLIC
Any times listed in this agenda are provided as a courtesy and the actual item may be heard either before or after the time
given.
This agenda was prepared by the City Clerk and staff reports are available in the City Council Chambers lobby located at
100 Civic Center Drive. Staff reports or other written documentation have been prepared or organized with respect to the items
of business listed on the agenda. If you have any questions or require copies of any of the staff reports or other documentation
regarding any item of business on the agenda, please contact City Clerk staff at 949-644-3005. Agendas and staff reports are
also available on the City's webpage at newportbeachca.gov/agendas.
The City of Newport Beach's goal is to comply with the Americans with Disabilities Act (ADA) in all respects. If, as an attendee
or a participant at this meeting, you will need special assistance beyond what is normally provided, we will attempt to
accommodate you in every reasonable manner. Please contact City Clerk Leilani Brown prior to the meeting to inform us of
your particular needs and to determine if accommodation is feasible (949-644-3005 or cityclerk(a)newportbeachca.gov).
NEWPORT BEACH CITY COUNCIL AGENDA
CITY COUNCIL CHAMBERS
100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660
APRIL 25, 2023
STUDY SESSION - 4:00 P.M. (PUBLIC WELCOME)
CLOSED SESSION - FOLLOWS STUDY SESSION
REGULAR MEETING - 6:00 P.M.
ROLL CALL — 4:00 p.m.
CURRENT BUSINESS
SS1. Clarification of Items on the Consent Calendar
SS2. National Library Week Proclamation
SS3. Discussion Regarding Pilot Program for Homeowner Associations to Install Private
Security Cameras Within the Public Right -of -Way
As requested by Mayor Pro Tern O'Neill, staff will present relevant information to assist the
City Council in a policy discussion regarding development of a pilot program to allow
Homeowner Associations that represent at least 50 homeowners to install private security
cameras and other related improvements within the public right-of-way.
III. PUBLIC COMMENTS
The City Council of Newport Beach welcomes and encourages community participation. Public
comments are invited on items listed on the agenda and non -agenda items. Speakers must limit
comments to three (3) minutes per person to allow everyone to speak. Written comments are
encouraged as well. The City Council has the discretion to extend or shorten the time limit on agenda
or non -agenda items.
IV. CLOSED SESSION — After Study Session — Council Chambers Conference Room
A. CONFERENCE WITH LEGAL COUNSEL
ANTICIPATED LITIGATION
(Government Code § 54956.9) (d)(2), (e)(2)(3)): 1 matter
The City Council will meet in Closed Session to discuss potential litigation against the City as set
forth in the correspondence dated April 11, 2023, from Andrew Willis, Enforcement Staff Counsel,
for the California Coastal Commission, related to the Western Snowy Plover and the wood -slat
fences that previously existed at/near Balboa Beach. A copy of the April 11, 2023 correspondence
is attached to this agenda and is available for inspection at the City Clerk's Office located at
100 Civic Center Drive, Newport Beach, California 92660.
B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.8): 1 matter
Property: A portion of the public right-of-way adjacent to 929 Zurich Circle (423-282-04) and
944 Via Lido Nord (423-281-10) (approximately 845 square feet)
City Negotiators: Seimone Jurjis, Community Development Director, and Lauren Wooding-
Whitlinger, Real Property Administrator.
Negotiating Parties: Palmer Luckey on behalf of the 929 Zurich Circle Trust and the 944 Via Lido
Nord Trust.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment
City Council Meeting
April 25, 2023
Page 2
C. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
(Government Code § 54957(b)(1)): 3 matters
Title: Grace Leung, City Manager
Title: Aaron C. Harp, City Attorney
Title: Leilani I. Brown, City Clerk
V. RECESS
VI. RECONVENE AT 6:00 P.M. FOR REGULAR MEETING
VII. ROLL CALL
Vill. CLOSED SESSION REPORT
IX. INVOCATION
X. PLEDGE OF ALLEGIANCE
XI. NOTICE TO THE PUBLIC
The City Council of Newport Beach welcomes and encourages community participation. Public
comments are generally limited to three (3) minutes per person to allow everyone to speak. Written
comments are encouraged as well. The City Council has the discretion to extend or shorten the time
limit on agenda or non -agenda items.
XII. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL ON
COMMITTEE ACTIVITIES
XIII. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE
AGENDA (NON -DISCUSSION ITEM)
• Consider amending the affordability level in the Newport Place Planned Community
Development Standards from 30% to 15% [Weigand]
XIV. PUBLIC COMMENTS ON CONSENT CALENDAR
This is the time in which Council Members may pull items from the CONSENT CALENDAR for
discussion (ITEMS 1— 16). Public comments are also invited on Consent Calendar items. Speakers
must limit comments to three (3) minutes. Before speaking, please state your name for the record. If
any item is removed from the Consent Calendar by a Council Member, members of the public are
invited to speak on each item for up to three (3) minutes per item.
All matters listed under CONSENT CALENDAR are considered to be routine and will all be enacted
by one motion in the form listed below. Council Members have received detailed staff reports on
each of the items recommending an action. There will be no separate discussion of these items prior
to the time the City Council votes on the motion unless members of the City Council request specific
items to be discussed andlor removed from the Consent Calendar for separate action.
XV. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
1. Minutes for the April 11, 2023 City Council Meeting
Waive reading of subject minutes, approve as written, and order filed.
2. Reading of Ordinances
Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by
title only.
City Council Meeting
April 25, 2023
Page 3
RESOLUTIONS FOR ADOPTION
3. Resolution No. 2023-20: Declaring a Portion of City -Owned Property at Eastbluff Park
Located at 2401 and 2555 Vista del Oro as Exempt Surplus Land, and a Lease Agreement
for the Property with Boys and Girls Clubs of Central Orange Coast for Recreation
Facilities
a) Determine this action exempt from the California Environmental Quality Act (CEQA) pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the environment,
directly or indirectly;
b) Adopt Resolution No. 2023-20, A Resolution of the City Council of the City of Newport Beach,
California, Declaring a Portion of Eastbluff Park Located at 2401 and 2555 Vista del Oro,
Newport Beach, California as Serving an Agency Use and Further Declaring that Portion as
Exempt Surplus Land;
c) Authorize the City Manager and City Clerk to execute a Lease Agreement with Boys and
Girls Clubs of Central Orange Coast for use at the City -owned Eastbluff Park, located at
2555 Vista del Oro, in a form substantially similar to the agreement prepared by the City
Attorney; and
d) Approve a waiver of City Council Policy F-7 — Income and Other Property based on the
findings contained in this staff report and the Agreement, that conducting an open bid process
or changing the tenant would result in excessive vacancy, and the use of the property
provides an essential or unique service to the community and is of a public benefit, and might
not otherwise be provided where an open bid or full fair market value of the property be
required, and based on the unique services provided by tenant, its board members are
appointed through a process that ensures board members maintain the requisite experience
and contributions to the tenant's operations.
4. Resolution No. 2023-21: Supporting Submission of Grant Application Under the Orange
County Transportation Authority Measure M2 Tier 1 Environmental Cleanup Program
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment, and the activity is not a project as defined in Section15378; and
b) Adopt Resolution No. 2023-21, A Resolution of the City Council of the City of Newport Beach,
California, Authorizing and Approving the Submittal of a Grant Proposal for Funding Under
the Orange County Transportation Authority Environmental Cleanup Tier 1 Grant Program.
5. Resolution No. 2023-22: Repeal of Level Two Water Shortage and Water Supply Update
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly; and
b) Adopt Resolution No. 2023-22, A Resolution of the City Council of the City of Newport Beach,
California, Repealing Resolution No. 2022-46, which Declared a Level Two Water Supply
Shortage, and Resolution No. 2022-88, which Extended the Declaration of a Level Two
Water Supply Shortage.
CONTRACTS AND AGREEMENTS
6. Street Pavement Repair Program (Project No. 23R03) — Reject All Bids for Contract
No. 8942-1
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly;
b) Reject all bids received for Contract No. 8942-1 and direct staff to return all bid bonds; and
c) Direct staff to re -advertise the Street Pavement Repair Program (FY 2022-23) with next fiscal
year's contract.
City Council Meeting
April 25, 2023
Page 4
7. Central Library Lecture Hall Building Project — Reject All Bids for Contract No. 7444-2
(19F11)
a) Reject all bids received for Contract No. 7444-2 and direct staff to return all bidders bonds;
and
b) Approve Budget Amendment No. 23-061 redirecting American Rescue Plan Act (ARPA)
Funding from the Library Lecture Hall Building Project Account, 16601-980000-19F11, to the
City Yard Fueling Support Facilities and Transfer Station Rehabilitation Project Account,
16601-980000-20F 14.
8. Cooperative Agreement to Implement Total Maximum Daily Load Programs for Nutrients,
Fecal Coliform Bacteria and Toxics in the Newport Bay Watershed
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment, and the activity is not a project as defined in Section15378; and
b) Authorize the Mayor and City Clerk to execute Cooperative Agreement MA-080-23010376
with the County of Orange and other upstream agencies to implement these water quality
improvements, studies, monitoring, shared funding and compliance programs.
9. Approval of On -Call Beach Maintenance and Hauling Services Agreements with
Tight Quarters and GCI Construction
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not
result in physical changes to the environment, directly or indirectly; and
b) Approve Beach Maintenance and Hauling Services Agreements with Tight Quarters, Inc. and
GCI Construction, Inc. in a form approved by the City Attorney, and authorize the Mayor and
City Clerk to sign each agreement. Each on -call agreement is for a five-year term and carries
a not -to -exceed cap of $2,000,000.
10. Conveyance Agreement Between the City of Newport Beach and The Irvine Company to
Accept a Portion of the Real Property at 201 East Coast Highway for a Public Dock, and a
Lease Agreement Between the City of Newport Beach and County of Orange for Use of
the Tidelands for the Public Dock
a) Determine the City Council has already approved the Mitigated Negative Declaration
No. ND2013-002 (SCH 2O14081044) (MND) that addressed the potential environmental
effects associated with the Project on November 25, 2014. All significant environmental
effects of the Project have been addressed in the MND and no new or additional impacts will
result from the approval of the Conveyance Agreement, Gift Deed, Access and Parking
Easement, Bill of Sale, Irrevocable Offer of Dedication of Public Walkway, or City's lease
with the County of Orange;
b) Authorize the City Manager and City Clerk to execute the Conveyance Agreement and all
associated documents necessary to accept and complete the donation transaction with
The Irvine Company for a portion of the property at 201 East Coast Highway, in a form
substantially similar to the documents prepared by the City Attorney; and
c) Authorize the City Manager and City Clerk to execute a Lease Agreement with the County
of Orange for City -use of the public tidelands to operate a Public Dock at Balboa Marina,
located at 201 East Coast Highway, in a form substantially similar to the agreement prepared
by the City Attorney.
11. Agreement with Airwave Communications Enterprises, Inc. for Police Vehicle
Customization Services
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly; and
b) Approve a Professional Services Agreement with Airwave Communications Enterprises, Inc.,
for Police Department Vehicle Customization Services in an amount not -to -exceed $875,000,
and authorize the Mayor and City Clerk to execute the Agreement.
City Council Meeting
April 25, 2023
Page 5
MISCELLANEOUS
12. Planning Commission Agenda for the April 20, 2023 Meeting
Receive and file.
13. Confirmation of Appointments to the General Plan Advisory Committee and Co -Chair
Positions
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly;
b) Confirm the General Plan Update Steering Committee's recommended appointments of
Matthew Brady and Charles Fancher to fill the seats on the General Plan Advisory
Committee; and
c) Confirm the General Plan Update Steering Committee's recommended appointments of
Jeremy Evans and Arlene Greer as Co -Chairs of the General Plan Advisory Committee.
14. Balboa Chamber of Commerce Request to Waive City Council Policy B-13 for Newport
Beach Polo Match
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15304 under Class 4 (Minor Alterations to Land), because it has no potential to have
a significant effect on the environment; and
b) Recommend approval to waive City Council Policy B-13, Public Use of City Facilities,
Section A.1, Regulations and Restrictions — Use of Alcohol, to allow for Newport Beach
Polo Match to be conducted at Peninsula Park. Event approval would be contingent upon
Special Event Permit approval.
15. Donation of Fire Engines to Des Moines Area Community College Fire Science Program
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly; and
b) Authorize and approve the donation of two surplus fire engines to the Des Moines Area
Community College Fire Science Program Foundation (DMACC) and authorize the Finance
Director to execute any agreements or documentation necessary to complete the donation
process.
16. Grants and Donations Report for the Quarter Ending March 31, 2023
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly; and
b) Receive and file.
ACTION: MOVE AFFIRMATIVE ACTION OF THE CONSENT CALENDAR, EXCEPT FOR
THOSE ITEMS REMOVED
XVI. ITEMS REMOVED FROM THE CONSENT CALENDAR
XVII. PUBLIC COMMENTS ON NON -AGENDA ITEMS
Public comments are invited on non -agenda items generally considered to be within the subject
matter jurisdiction of the City Council. Speakers must limit comments to three (3) minutes. Before
speaking, please state your name for the record.
XVIII. PUBLIC HEARING
17. Resolution No. 2023-23: Community Development Block Grant — 2023-2024 Annual Action
Plan
a) Conduct a public hearing;
b) Find the approval of the 2023-2024 Annual Action Plan exempt from the National
Environmental Policy Act (NEPA) pursuant to 24 CFR Part 58, Section 58.34;
City Council Meeting
April 25, 2023
Page 6
c) Find the approval of the 2023-2024 Annual Action Plan exempt from the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment) and
Section 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential
for resulting in physical change to the environment, directly or indirectly;
d) Adopt Resolution No. 2023-23, A Resolution of the City Council of the City of Newport Beach,
California, Approving the 2023-2024 Annual Action Plan for Allocation of the Federal
Community Development Block Grant Program Funds for Fiscal Year 2023-2024; and
e) Authorize the City Manager to:
i. Proportionally adjust appropriations to specific programs and projects as necessary to
conform with the final 2023-2024 formula grant allocation of CDBG funds from HUD if
the appropriation is more or less than $399,099;
ii. Submit the 2023-2024 Annual Action Plan to HUD;
iii. Execute the 2023-2024 CDBG Program Grant Agreement and all related documents on
behalf of the City of Newport Beach;
iv. Execute all sub -recipient agreements with the non-profit organizations receiving
allocations of CDBG funds in the 2023-2024 Action Plan; and
v. Authorize the Community Development Director, or his designee, to be the official
representative of the City of Newport Beach, administer the 2023-2024 Annual Action
Plan and submit required environmental documentation to HUD for CDBG projects.
XIX. CURRENT BUSINESS
18. Resolution No. 2023-24: Initiation of an Amendment to the Newport Village Planned
Community Development Plan to Allow Recreational Uses Within Area 1 (PA2023-0071)
a) Determine this action is exempt from environmental review under the California
Environmental Quality Act (CEQA) pursuant to Section 15262 of the CEQA Guidelines,
California Code of Regulations, Title 14, Division 6, Chapter 3; and
b) Adopt Resolution No. 2023-24, A Resolution of the City Council of the City of Newport Beach,
California, Initiating an Amendment to the Newport Village Planned Community (PC-27)
Development Plan to Allow Recreational Uses Within Area 1 (PA2023-0071).
XX. MOTION FOR RECONSIDERATION
A motion to reconsider the vote on any action taken by the City Council at either this meeting or the
previous meeting may be made only by one of the Council Members who voted with the prevailing
side.
XXI. ADJOURNMENT — In memory of Jean Watt
Testimony given before the City Council is recorded.
The timer light will turn yellow when the speaker has one minute remaining.
The timer light will turn red when the speaker has 10 seconds remaining.
PLEASE TURN CELL PHONES OFF OR SET IN SILENT MODE
April 25, 2023
Closed Session Item IV.A
STATE OF CALIFORNIA- NATURAL RESOURCES AGENCY GAVIN NEWSOM, Governor
CALIFORNIA COASTAL COMMISSION
South Coast Area Office a
301 E. Ocean Blvd., Suite 300
Long Beach, CA 90802-4302
(562)590-5071
April 11, 2023
Jim Campbell, Deputy Community Development Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Protection of Western Snowy Plovers in the City of Newport Beach
Dear Mr. Campbell:
On March 21, 2023, Commission staff received the City's notification of its decision to withdraw
CDP application No. 5-21-0460, and a follow-up letter on April 10 2023. As you know, the
application requested after the fact authorization of removal of the wood -slat fences that
previously existed at Balboa Beach to protect Western Snowy Plovers, and their habitat, and
replacement of the protective fencing with symbolic fencing, as well as other measures intended
to protect snowy plovers. As you know, CCC staff had worked hard with City staff to try and
find measures that would address legal issues here and provide a mutual path forward to address
concerns by both the City and with regard to Coastal Act issues and protections for the
endangered snowy plovers.
We are disappointed that the City chose to withdraw the application and leave snowy plovers and
their habitat without the valuable protection from disturbance, whether from human or dog
activity, that the wood -slat fencing previously in place provided. CDP application No. 5-21-0460
was intended to address the City's unpermitted removal of the protective wood -slat fence, and,
thus, with the City's withdrawal of the application, enforcement staff will be forced to consider
its options to address this matter as a violation of the Coastal Act. However, we wanted to
provide some context for such a potential action and request that the City discuss immediate re-
installation of the wood -slat fence with enforcement staff in order to avoid the need for formal
enforcement action that would direct the City to reinstall the fencing. In either instance, our
intent would be to work with the City to protect an endangered species in the midst of urban
southern California, where remaining open space and habitat areas are especially significant
because of their rarity and, consequently, importance to wildlife. We remain interested in
discussing options with you and reinstituting some means to provide protections that existed
prior to the removal of the fence.
As you are no doubt aware, Western Snowy Plovers use Balboa Beach, as well as other areas in
the City, for foraging and roosting, and the United States Fish and Wildlife Service has identified
an area of Balboa Beach as Critical Habitat for snowy plovers because the area is essential to the
City of Newport Beach
April 11, 2023
Page 2 of 4
conservation of the species - Balboa Beach is one of seven primary wintering sites' for snowy
plovers in Orange County and has been described as the largest in Orange County2. In addition,
in previous years, the Critical Habitat area of Balboa Beach has supported nesting plovers.3
The wood -slat fencing that the City removed provided important protection for plovers within
the Critical Habitat area. Plovers have been documented within the previously fenced areas4, and
plovers also have previously nested in close proximity, if not in, the area that the fences
protected.s The USFWS has stressed the importance of fencing at Balboa Beach to protect
snowy plovers. In its April 10, 2018, letter to the City, the USFWS supported fencing to protect
plovers that is capable of excluding dogs, such as the wood -slat fencing, if the City persisted
with allowing dogs within the Critical Habitat area. The USFWS stated that "Consistent with the
conservation needs of the snowy plover, a more conservative approach for the ACAs [avian
conservation areas] that includes exclusion of dogs would provide better protection for snowy
plovers. If the City cannot accomplish this level of protection, we recommend that these areas be
protected with fencing to prevent dog entry. A variety of fencing options are available that could
be effective and less visible to the nearby residents than standard chain link fencing."
The City's removal of the wood -slat fencing and failure to replace it with any type of barrier to
protect snowy plovers has exposed them to significant threat of disturbance from human and dog
activity within the areas that were previously fenced, as evidenced by the long-time documenting
of these threats by the USFWS. For instance, the USFWS's Recovery Plan for the Pacific Coast
Population of the Western Snowy Plover describes the impacts of dog activity on plovers as
such: "Dogs on beaches can pose a serious threat to western snowy plovers during both the
breeding and nonbreeding seasons. Unleashed pets, primarily dogs, sometimes chase western
snowy plovers and destroy nests. Repeated disturbances by dogs can interrupt brooding,
' The USFWS describes, at least in one instance, the importance of wintering areas as such: "These areas are
necessary to provide sufficient habitat for the survival of Pacific Coast WSPs during the nonbreeding season as these
areas allow for dispersal of adults or juveniles to nonbreeding sites and provide roosting and foraging opportunities
and shelter during inclement weather." Federal Register Volume 77, No. 118. Endangered and Threatened Wildlife
and Plants; Revised Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover;
Final Rule.
z The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017.
Prepared for the California Department of Fish and Wildlife by Los Angeles Audubon, Santa Monica Bay Audubon
Society, and Sea and Sage Audubon.
s Federal Register Volume 77, No. 118. Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Pacific Coast Population of the Western Snowy Plover; Final Rule, page 36771.
a The occurrence of plovers in the previously fenced areas likely would have been greater than observed over the
past several years if not for the unpermitted extension of a walkway at E Street, the effect of which is described in
The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017 as
follows: "In the fall of 2014, the City of Newport Beach constructed a 300 foot long sidewalk adjacent to the fence
at the Balboa Beach Snowy Plover roost, extending from E Street (Ryan et al. 2015). This ran immediately adjacent
to a fenced Snowy Plover area and directly into one of the main Snowy Plover roosting areas from 2014 (Ryan et al.
2014). This disturbance likely flushed the plovers from this roosting area in 2015 and likely contributed to the
reduced numbers here in 2014-15. It appears that this effect has continued into 2015-16." Commission staff will
address this additional significant violation under separate cover, which will request removal of the unpermitted
walkway.
s The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017,
page 27.
City of Newport Beach
April 11, 2023
Page 3 of 4
incubating, and foraging behavior of adult western snowy plovers and cause chicks to become
separated from their parents." In designating an area of Balboa Beach as Critical Habitat, the
USFWS identified the main threats to plovers specifically at Balboa Beach, stating that "The
physical or biological features essential to the conservation of the species may require special
management considerations or protection to address the main threats from human recreational
disturbance, predation of chicks and eggs, and beach raking."
Thus, Commission staff is deeply concerned that the City has removed even the limited area of
protection that the wood -slat fence provided to protect an area of the Critical Habitat and failed
to replace it with any adequate protective measures, and we have expressed our concern with the
deleterious impacts that could result from removal of the fencing for some time. For instance, in
a June 26, 2017, letter to the City, Commission staff noted that we must consider the immediate
impacts to sensitive biological resources that are protected by the existing fencing [which was
extant to some degree at that time] that may occur if the fencing is removed. As you know, the
CDP application was intended to address unpermitted removal of the protection provided to
snowy plovers by the wood -slat fencing. We are especially disappointed that the City has
withdrawn the application after years of effort by both City and Commission staff to try to reach
a consensual resolution of this matter. As you probably know, the City first submitted
predecessor applications, which the City also withdrew, to CDP No. 5-21-0460 in 2017. Many
meetings and much correspondence between staff followed. Now that the City has withdrawn the
application, Commission staff unfortunately must consider its options to address this unpermitted
development as a Coastal Act violation until such time as an adequate barrier to protect the
plovers from human and dog activity is installed.
The Commission has a range of enforcement tools at its disposal, for instance Section 30809 of
the Coastal Act states that if the Executive Director of the Commission determines that any
person has undertaken, or is threatening to undertake, any activity that requires a permit from the
Coastal Commission without first securing a permit, the Executive Director may issue an order
directing that person to cease and desist. In this situation, the City has undertaken removal of a
structure, which constitutes development under the Coastal Act, without the necessary coastal
development permit. City staff has suggested that no permit was required for removal of the
fencing since, as the City has represented, the fencing was installed without a permit. However,
for the purpose of identifying what activities require a coastal development permit under the
Coastal Act, `development' is defined in Section 30106 to include both placement and removal
of development: "the placement or erection of aM solid material or structure... construction,
reconstruction, demolition, or alteration of the size of aM structure...." [underlining added for
emphasis] Therefore, the criterion for the Executive Director's issuance of a cease and desist
order has been met. Pursuant to Coastal Act Section 30809(c), the order may be subject to terms
and conditions, such as immediate re -installation of the fencing, to avoid irreparable injury to
resources. Said order could be issued to the City unilaterally or with the City's consent.
In order to resolve this matter cooperatively, we are requesting that the City work with
Commission staff to immediately reinstall the wood -slat fence to avoid the need for formal
enforcement action. We have options to streamline authorization of re -installation of the
protective fencing, whether through the permit process or consent order process, and we are
City of Newport Beach
April 11, 2023
Page 4 of 4
happy to discuss those options with you. Please contact me when you receive this letter to
discuss a consensual resolution of this matter.
Sincerely,
Andrew Willis
Enforcement Staff Counsel
cc: Dr. Kate Huckelbridge, Executive Director, CCC
Lisa Haage, Chief of Enforcement, CCC
Karl Schwing, Deputy Director, CCC
Mandy Revell, Coastal Program Analyst, CCC