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HomeMy WebLinkAboutZA2024-061 - APPROVING A COASTAL DEVELOPMENT PERMIT TO RAISE AN EXISTING SEAWALL AT 2742 BAY SHORE DRIVE (PA2024-0080)01-10-2023 RESOLUTION NO. ZA2024-061 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A COASTAL DEVELOPMENT PERMIT TO RAISE AN EXISTING SEAWALL AT 2742 BAY SHORE DRIVE (PA2024-0080) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Cade Christensen of Dig Landscape Construction, concerning property located at 2742 Bay Shore Drive and legally described as Lot 5 of Tract No. 1014, requesting approval of a coastal development permit. 2. The applicant requests a coastal development permit (CDP) to raise the height of an existing concrete seawall to 11.42 feet North American Vertical Datum of 1988 (NAVD 88). The existing seawall has a top of wall elevation that varies from 9.15 to 9.35 feet (NAVD 88). The applicant proposes to remove and replace distressed concrete coping and construct a concrete stem wall above. All improvements authorized by this CDP will be located on private property and are within the permit jurisdiction of the City. The project complies with all development standards and no deviations from the Newport Beach Municipal Code (NBMC) are requested. 3. The subject property is designated Single Unit Residential Detached (RS-D) by the General Plan Land Use Element and is located within the Single-Unit Residential (R-1) Zoning District. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Single Unit Residential Detached (RSD-B) (6.0 – 9.9 DU/AC) and is located within the Single-Unit Residential (R-1) Coastal Zoning District. 5. A public hearing was held on November 27, 2024, online via Zoom. A notice of the time, place, and purpose of the hearing was given by the NBMC. Evidence, both written and oral, was presented to and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is categorically exempt pursuant to Title 14 of the California Code of Regulations Section 15303, Division 6, Chapter 3, Guidelines for Implementation of the California Environmental Quality Act (CEQA) under Class 3 (New Construction or Conversion of Small Structures) because it has no potential to have a significant effect on the environment. 2. Class 3 exempts the construction of accessory structures. The proposed project consists of the replacement of distressed concrete coping, construction of a raised concrete stem wall, and guardrail above. Zoning Administrator Resolution No. ZA2024-061 Page 2 of 8 01-10-2023 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. By Section 21.52.015(F) (Coastal Development Permits - Findings and Decision) of the NBMC, the following findings, and facts in support of such findings are set forth: Finding: A. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The project site is developed with an existing single unit dwelling that is protected by an existing bulkhead. The top of the bulkhead varies in elevation from 9.15 feet (NAVD 88) to 9.35 feet (NAVD 88). A Bulkhead Conditions Report was prepared by PMA Consulting, Inc. on July 26, 2024. The report found that the bulkhead was generally in good condition with some minor cracks on the panels. The report concludes that once the seawall is raised and repaired in accordance with the recommendations, no additional repair or replacement of the bulkhead is anticipated within the next 75 years. 2. The Project will repair and replace distressed portions of the seawall, raise the height of the seawall to 11.42 feet (NAVD 88), and install a guardrail using bird-protective glass without any development encroaching seaward. Condition of Approval No. 2 requires the bulkhead remain at a minimum elevation of 11.42 feet (NAVD 88) with a design adaptability elevation of 14.4 feet (NAVD 88). This height is consistent with the Waterfront Project Design Guidelines and Standards, Harbor Design Criteria Commercial & Residential Facilities adopted by the City Council on March 23, 2021, which requires that any bulkhead structure permitted within the years 2021 through 2025 have a minimum bulkhead elevation of 10.9 feet (NAVD 88) with a design for adaptability elevation of 14.4 feet (NAVD 88). 3. The seawall and proposed guardrail are located within the 10-foot front setback area abutting the bay where pursuant to Section 21.30.040 (Fences, Hedges, Walls, and Retaining Walls) of the NBMC, the height of accessory structures is limited to 42-inches as measured from the existing grade. 4. A grade determination for the purpose of measuring the height of accessory structures within the front setback was approved by the Community Development Director, pursuant to PA2016-204. An alternate grade of 10.75 (NAVD 88) was established based on the topography of the subject property and the adjoining properties. The top of guardrail is proposed for a maximum height of 14.25 (NAVD 88), which is consistent with the 42-inch height restriction. Condition of Approval No. 7 restricts the maximum top of the guardrail to 14.25 (NAVD 88). Zoning Administrator Resolution No. ZA2024-061 Page 3 of 8 01-10-2023 5. A Coastal Hazards Report and Sea Level Rise Analysis was prepared by PMA Consulting, Inc. dated July 26, 2024. The current maximum bay water elevation is 7.7 feet (NAVD 88) and may exceed the existing top of the bulkhead elevation of 9.15 to 9.35 feet (NAVD 88) during high tide or storm events. The report analyzes future sea level rise scenarios assuming an increase in the maximum water level over the next 75 years (i.e., the life of the structure) of about 3.15 feet. The sea level is estimated to reach approximately 9.7 to 13.7 feet (NAVD88) - (the likely range for sea level rise over a 75-year design life of the structure based on low risk and medium/high risk aversion estimated for sea level rise provided by the State of California, Sea Level Rise Guidance: 2018 Update). The proposed raising of the seawall to 11.42 feet (NAVD 88) will prevent flooding into the property. The project includes reinforcing and raising the existing seawall to 11.42 feet (NAVD 88) with a design adaptability elevation of 14.4 feet (NAVD88). Once the existing bulkhead is raised to 11.42 feet (NAVD 88), per the recommendations of the report, flooding, wave runup, and erosion will not significantly impact this property over the proposed 75-year economic life of the existing structure. 6. The neighborhood is predominantly developed with two- and three-story, single-family residences with protective shoreline devices, which are commonly referred to as bulkheads. The proposed raised bulkhead is consistent with the existing neighborhood pattern of development. 7. The property is in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (CBC) and Building Division standards and policies. If required during plan check, geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved before the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and the CBC before building permit issuance. 8. As the property is adjacent to coastal waters, a Construction Pollution Prevention Plan (CPPP) was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and coastal waters derived by construction chemicals and materials. The project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 9. The project site is not located adjacent to a coastal view road, public access way, or Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal view road is West Coast Highway, which is located approximately 800 feet from the subject property. The nearest public viewpoint is approximately 1,500 feet away, Castaways Park. The project site may be located within the viewshed of distant public viewing areas; however, the project complies with all applicable Title 21 (Local Coastal Program Implementation Program) development standards and is consistent with the existing pattern of development as each waterfront property in this area is protected by a bulkhead of similar height and the project does not contain any unique features. Therefore, the project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to public views. Zoning Administrator Resolution No. ZA2024-061 Page 4 of 8 01-10-2023 10. The property owner will also be required to acknowledge any hazards present at the site and unconditionally waive any claim to damage or liability against the decision authority, consistent with NBMC Section 21.30.015(D)(3)(c) – (General Site Planning and Development Standards - Waterfront Development). The Acknowledgement of Coastal Hazards is included as Condition of Approval No. 6 and states that the agreement will need to be recorded prior to the issuance of building permits. 11. The Project will be visible from the harbor. However, the project complies with all development standards and no deviations from the Newport Beach Municipal Code (NBMC) are requested. Raising the proposed seawall and including a guardrail is consistent with the existing pattern of development as each nearby waterfront property is also protected by a seawall of similar design and many of the neighboring properties include guardrails. Therefore, the project will not result in adverse impacts to public views. Finding: B. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Fact in Support of Finding: 1. The Property is located between the nearest public road and the sea or shoreline, in the private Community of Bay Shores. Developed in 1941, Bay Shores is a 258-lot, single-family gated community located on the Lido Channel, southwest of Coast Highway and Newport Bay Bridge. The 39-unit Anchorage Apartment complex is also located within the community. The community is not accessible to the public. 2. Coastal Land Use Plan Policy 3.1.5-3 requires public access consistent with public access policies for any new development in private/gated communities causing or contributing to adverse public access impacts. Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation Impacts) requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the project raises an existing seawall. The project does not involve a change in land use, density, or intensity that will result in Increased demand on public access and recreation opportunities. 3. The Property does not currently provide, nor does it inhibit public coastal access. Vertical and lateral access to the bay front is available adjacent to the Bay Shores Community, at the Balboa Bay Club, which is immediately west of the Bay Shores Community. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Zoning Administrator Resolution No. ZA2024-061 Page 5 of 8 01-10-2023 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act under Section 15303 under 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. The exceptions to this categorical exemption under Section 15300.2 of the CEQA Guidelines are not applicable. 2. The Zoning Administrator of the City of Newport Beach hereby approves the Coastal Development Permit filed as PA2024-0080, subject to the conditions outlined in Exhibit “A,” which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director by the provisions of Title 21 Local Coastal Program (LCP) Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeal to the Coastal Commission) of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. PASSED, APPROVED, AND ADOPTED THIS 27TH DAY OF NOVEMBER, 2024. Zoning Administrator Resolution No. ZA2024-061 Page 6 of 8 01-10-2023 EXHIBIT “A” CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan and elevations stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The existing seawall shall be reinforced and capped to a height of 11.42 feet (NAVD 88), with the capacity to be raised up to 14.4 feet (NAVD 88) in accordance with the recommendations provided in the report prepared by PMA Consulting, Inc. on July 26, 2024, and as identified in the approved plans. 3. The alterations to the seawall shall allow for a future increase in height without further seaward encroachment. 4. All work shall be performed from the land side of the property. 5. Prior to issuance of building permits, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 6. Prior to a final building permit inspection, an agreement in a form approved by the City Attorney between the property owner and the City shall be executed and recorded waiving rights to the construction of future shoreline protection devices to address the threat of damage or destruction from waves, erosion, storm conditions, landslides, seismic activity, bluff retreat, sea level rise, or other natural hazards that may affect the property, or development of the property, today or in the future. The agreement shall be binding against the property owners and successors. 7. The guardrail proposed with this project shall be limited in height to a maximum of 14.25 (NAVD 88) and shall comply with all applicable development standards in Title 20 and Title 21 of the Newport Beach Municipal Code. 8. The planter abutting the guardrail shall be a minimum of three feet wide. 9. If it is determined during construction that either: more than 20% of the bulkhead panels need replacement, mechanized equipment is required beyond the face of the bulkhead, or if repairs are required below the waterline, a CDP from the California Coastal Commission shall be required. 10. No demolition or construction materials, equipment debris, or waste, shall be placed or stored in a location that would enter the sensitive habitat, receiving waters, or storm drains or result in impacts to environmentally sensitive habitat areas, streams, the beach, wetlands or their buffers. No demolition or construction materials shall be stored on public property. 11. The applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree Zoning Administrator Resolution No. ZA2024-061 Page 7 of 8 01-10-2023 trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds under MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 12. Best Management Practices (BMPs) and Good Housekeeping Practices (GHPs) shall be implemented before and throughout the duration of construction activity as designated in the Construction Erosion Control Plan. 13. The discharge of any hazardous materials into storm sewer systems or receiving waters shall be prohibited. Machinery and equipment shall be maintained and washed in confined areas specifically designed to control runoff. A designated fueling and vehicle maintenance area with appropriate berms and protection to prevent spillage shall be provided as far away from storm drain systems or receiving waters as possible. 14. Debris from demolition shall be removed from work areas each day and removed from the project site within 24 hours of the completion of the project. Stockpiles and construction materials shall be covered, enclosed on all sites, not stored in contact with the soil, and located as far away as possible from drain inlets and any waterway. 15. Trash and debris shall be disposed of in proper trash and recycling receptacles at the end of each construction day. Solid waste, including excess concrete, shall be disposed of in adequate disposal facilities at a legal disposal site or recycled at a recycling facility. 16. Revisions to the approved plans require subsequent review by the Planning Division and may require an amendment to this Coastal Development Permit or the processing of a new coastal development permit. 17. The project is subject to all applicable City ordinances, policies, and standards unless specifically waived or modified by the conditions of approval. 18. The applicant shall comply with all federal, state, and local laws. A material violation of any of those laws in connection with the use may be caused by the revocation of this Coastal Development Permit. Zoning Administrator Resolution No. ZA2024-061 Page 8 of 8 01-10-2023 19. This Coastal Development Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained are detrimental to the public health, and welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained to constitute a public nuisance. 20. Prior to issuance of building permits, the applicant shall submit a final construction erosion control plan. The plan shall be subject to review and approval by the Building Division. 21. Prior to issuance of building permits, the applicant shall submit a final drainage and grading plan. The plan shall be subject to review and approval by the Building Division. 22. Prior to issuance of building permits, a copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans. 23. Construction activities shall comply with Section 10.28.040 (Construction Activity – Noise Regulations) of the NBMC, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays, or Holidays. 24. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by the current property owner or agent. 25. This Coastal Development Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 21.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted. 26. To the fullest extent permitted by law, the applicant shall indemnify, defend and hold harmless the City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any 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 Bell Residence including but not limited to, Coastal Development Permit (PA2024-0080). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorney’s fees, and other expenses incurred in connection with such claim, action, causes of action, suit, or proceeding whether incurred by the applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all the City's costs, attorneys' fees, and damages, which the City incurs in enforcing the indemnification provisions outlined in this condition. The applicant shall pay to the City upon demand any amount owed to the City under the indemnification requirements prescribed in this condition.