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Home My WebLink About06 - Boundary Line Agreement 2808 Lafayette�EWPORr CITY OF NEWPORT BEACH °9` o City Council Staff Report Agenda Item No. 6 June 25, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644 -3311, dawebb @newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager 949- 644 -3043, cmiller @newportbeachca.gov APPROVED: TITLE: Request for Ipport of Boundary Line Agreement between 2808 Lafayette Property, LLC and the State Lands Commission ABSTRACT: 2808 Lafayette Property, LLC ( "Owner ") owns the property located at 2808 Lafayette Road ( "Property "), a portion of which extends into the Rhine Channel. The Owner desires to construct a new bulkhead in front of the Property. As part of the application review, the California Coastal Commission is requiring the Owner to enter into a boundary line agreement with the State Lands Commission to establish a demarcation between public tidelands and private property in the Rhine Channel. The Owner seeks the City of Newport Beach's ( "City ") support with the proposed boundary line agreement, and, if necessary, to become a party to the agreement. RECOMMENDATIONS: 1. Authorize staff to assist the Owner and the State Lands Commission to draft a boundary line agreement defining the boundaries between the public tidelands and private area adjacent to the Property. 2. Authorize the City Manager or his designee to sign and transmit the attached letter (Attachment A) to the State Lands Commission in support of Owner's boundary line agreement. 3. Authorize the City Manager or his designee, if necessary or convenient, to enter the City into the boundary line agreement between the Owner and the State Lands Commission. Request for Support of Boundary Line Agreement between 2808 Lafayette Property, LLC and the State Lands Commission June 25, 2013 Page 2 FUNDING REQUIREMENTS: No funding is anticipated for this action. The Owner agrees to reimburse the City for any costs that may be incurred as a result of the proposed boundary line agreement. DISCUSSION: On November 6, 2000, a structure (e.g., office building and parking structure) located on the Property collapsed into the Rhine Channel. The collapse was caused by the failure of rusty support beams, which exposed the footings of the structure. Remnants of the failed structure were removed, but some of the asphalt/concrete debris that fell into the water remains, and has since acted as a retaining wall protecting the foundation of the remaining structure. The Owner proposes to remove the remaining debris from the Rhine Channel and construct a new bulkhead to protect the existing structure because any further erosion in the channel, or maintenance dredging near the structure's foundation, may weaken the foundation's remaining lateral support. The Owner is seeking approval from the California Coastal Commission to install a new bulkhead. However, the Coastal Commission is unwilling to process the Owner's application until it is definitively determined the new bulkhead will not be located upon public tidelands. To satisfy the boundary issue, the Coastal Commission recommends the Owner provide evidence, through a Boundary Line Agreement between [the Owner] and the State Lands Commission and the City of Newport Beach, if necessary, that unequivocally establishes that the project is not subject to the public trust doctrine. The Coastal Commission asked the State Lands Commission to determine the Property's boundaries, thus, the Owner is requesting the City's support and if necessary their entry into a boundary line agreement to allow the new bulkhead to be installed. However, any future discretionary redevelopment of the project may trigger the Owner having to dedicate a public access easement in front of the Property pursuant to Coastal Land Use Plan Policy 3.1.1 -21 and Newport Beach Municipal Code 20.30.090. As shown on the attached vicinity map (Attachment B), the existing asphalt/concrete debris is visible in the water adjacent to the structure on the Property. Also, this debris is landward of the Bulkhead Line (orange line) which classifies this water area as "private waterways," as further evidenced by the survey map prepared by the Owner and reviewed by the City's surveyor (Attachment C). As a general rule in Newport Harbor, as well as at this Property, all waters bayward of the Bulkhead Line are City Tidelands and water landward are private submerged property. Therefore, the Owners have requested a boundary line agreement to establish the legal boundary between private property and public tidelands (i.e., the four corners of the property (Attachment D). Request for Support of Boundary Line Agreement between 2808 Lafayette Property, LLC and the State Lands Commission June 25, 2013 Page 3 Since the original permit application for a routine bulkhead replacement was approved at a staff level, and since the Coastal Commission raised the issue after the City issued the Approval in Concept, the Harbor Commission has not been apprised of this issue. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is statutorily exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Section 15282(f) (settlement of title and boundary problems) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 and California Public Resources Code Sections 30416(c) and 21080.11 because it relates to the settlement of a title and boundary problem with the State Lands Commission. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers this item). Submitted b David-A. Webb Public Works Director Attachments: A. Letter in Support of Boundary Line Agreement B. Vicinity Map C. Survey Map of 2808 Lafayette D. Letter Request for Boundary Line Agreement April 3 and May 23, 2013 Attachment A CITY Of NEWPORT BEACH Office of the City Manager 7 Cq <,FOalloP June 26, 2013 Jennifer Lucchesi, Executive Officer California State Lands Commission 100 Howe Avenue, Suite 100 -South Sacramento, CA 95825 Re: Proposed Boundary Line Agreement 2808 Lafayette Avenue, Newport Beach Lots 5 & 6, Block 425, Lancaster's Addition Dear Ms. Lucchesi: On June 25, 2013, the City Council of the City of Newport Beach ( "City ") took formal action to support 2808 Lafayette Avenue, LLC's ( "LLC ") April 25, 2013 request to the State Lands Commission to enter into a boundary line agreement related to Lots 5 & 6 in Block 425 in Lancaster's Addition (consolidated by Parcel Map recorded at Book 95, page 44 of Parcel Maps) ( "Property "). The LLC provided the City with a survey of the boundaries of the Property. The eastern boundary of the Property is coincident with the Bulkhead Line established by the U.S. Army Corps of Engineers established initially in 1936 and reaffirmed in 1951. The City has treated the Bulkhead Line along the Rhine Channel as the boundary between the navigable waters which the City administers and the private property which is not subject to the public trust. This was affirmed in the prior Boundary Line Agreement 54 entered into between the City, the State Lands Commission, and Coast Capital, Inc. with regard to Block 324 of Lancaster's Addition, which is the Block immediately south of Block 425 and within 160 feet of the Property. Accordingly, the City has determined that it supports, and if necessary is willing to enter into, a boundary line agreement between the LLC and the State Lands Commission relating to the easterly boundary between the Property and the adjacent public tidelands. Based upon available information, the City is willing to establish the boundary at the Property lines as designated in the Tract Map for Lancaster's Addition which are also designated on the Parcel Map recorded at Book 95, Page 44 of Parcel Maps, Official Records, Orange County. The proposed boundary is depicted on the enclosed Property map. Therefore, the City supports the LLC's request to establish a boundary line agreement related to the Property in accordance with the request of the LLC dated April 3, 2013. 829 Harbor Island Drive, Newport Beach, CA 92660 www.newportbeachca.gov (949) 644 -3034 4 of 13 7_ Please feel free to contact Chris Miller, Flarbor ResOUrCeS Manager at (949) 644-3043 if you have any questions regarding the proposed Boundary line agreement or the City's support thereof: Sincerely, Dave Kiff City Manager Enclosure. cc: Warren Crunk, Esq. Mr. Chris Miller, Harbor Resources Manager Mr. John Morehart Sherman L. Stacey, Esq. 5 of 13 e I \ y .0 �gb 8 NEWPORT PIER ro1a,%. LIDO t PENINSULA Hf it., OA, I CH F� LIDO ISLE Newport Beach e has boum lTh."ethe dsGalmer. Esery reasI"d acamry to M cheats Gt$ a' • egro mpld,havewr.they is employeesaM agent Nelah.rm and dxlilm.ny end ili respons@lih from ar rele0ng to a smy rewlb dcahed in lls use. gpsw'My 0 1,308 2,616 Imagery: 81092011 ewded by Eagle 0 8 Feet photos Inagmg wrw.eagioaedil.mm eM01] Vicinity Map ATTACHMENT B 6 of 13 Bulkhead Line (Orange) 7 of 13 ,o j -m LEGFNG: .m a n<w,em.sr cna P o[ •• ue6Nwwo,:[e[II, aaLLY �W]n VS,IRR �vmR�r IX�nf tOi,P.SR Vasw�. Y�beaWiO Rlv[,4�M T¢w \N^Y Ptcrwm Lrrf nl... c .awt q Abf` T ,..ua nm pp''A \ m.[[rsu W qy8� � ..i✓q Pw2 ' \• ? n NPVN N LAFAYETTE AVENUE 0 .9a \ _ -Pw+ •a� _ LU LU 14 2808 LAFMrM GARAGE AT GROUND LEVEL , 1 STORIES ABOVE. \ N' = PARCEL 1 ° E' zS P M 6 95/44 ;e D.S..l4YYt ,WO:G S -.1 LJ I d-X 4@ME/D 1V.4 L THE RHINE 0 w MIAR MOVAY N;sl LYE rc1 ._, us, aver miff 6 oro:aws� M Fe6Y4 i SULW_'.lJ UC e are eod�� lEGelo-..�c,gA`� a m m ,.�:•u�w .®a :n.a �IX m "w�.a mun ms¢ u ry °•ie w amps Attachment C _ c — m m t Q� �a o z S Y. O ¢C 6 O 0 0 0 w _ Vl1nr7 VL elf L7[%VUIYU LC VCL ' 2 STORIES ABOVE , / GWbF 6RF�K 8 PARCEL 1 g P M B 95/44 t>,smuc ca~ 6N1arw ' I ° RGR WAM? solo, S{. MAX �BSR�i/A)K WATERWAY a� % I I �6 C WARERWAY 1 r .. a6l __-j EV.iA i r 4:TGE f72.86' iYY0bC30 E 60.18, - If VEST UNE 'MY CORPS OF ENGINEERS - THE RHINEF + = U.S. AF 9UU(NEAD JNE auvG— — PdAHEAO Lffi_ 4 PLUNG NNG^ iL0A9NG 00GK THE RHINE BASIS OF SFARNW: CENTE"E OF LAFAYETT AVENUE Ef N2O54'30'E PER PMB 95, PAGE 44, F OF ORANGE COUNTY. FRED cAINIS Sur.RMAN L. STACLY LISA A. WErNBrito RnmccA A. T) iohesoN NANCI S. STACEY K%mERI.Y RIIILE ALICIA B. BARTLEY BY HAND DELIVERY and EMAIL Mr. Chris Miller Harbor Resources City of Newport Beach 829 Harbor Island Dr. Newport Beach, CA 92660 LAW OFFICPS or• GAINES & STACEYLLP H] l BAYME DRI VE, SurrE 280 CORONA DEL MAR, CALIFORNIA 92625 April 3, 2013 Re: Request for Boundary Line Agreement 2808 Lafayette Avenue, Newport Beach Dear Mr. Miller: Attachment D TEI.EN ZONE (949)640 -8999 FAX (949)640 -8330 On February 25, 2013, 1 made a request to the State Lands Commission on behalf of John and Lisa Morellart, the owners of 2808 Lafayette Property, LLC (the "LLC ") for a boundary agreement on property owned by the LLC. I sent you a copy of that letter request and have attached it to this letter as well. The LLC owns the real property at 2808 Lafayette Avenue, Newport Beach (die "Property "). The Property measures 60 feet by 100 feet and has a 60 foot waterside boundary at the established bulkhead line of the. Rhine Channel. 1 am advised by counsel for the State Lands Commission that as the trustee of the tidelands in Newport Harbor, it will be necessary for the City to join in any such boundary agreement. I have enclosed a survey of the property which shows the easterly boundary of the Property adjoining the Rhine Channel which is the location at which I have requested that the boundary between the tidelands and the unencumbered private property is located. In 1964, the City entered into a similar boundary agreement related to Block 324 of Lancaster's Addition which is the 2700 block of Lafayette Avenue. I have enclosed a copy of the State Lands Commission file on Boundary Line Agreement 54. It is my understanding that the City disclaims any tideland trust interest in property which lies to the west of the Rhine Channel bulkhead line as established by the Army Corps of Engineers. 10 of 13 Mr. Chris Millar City of Newport Beach April 3, 2013 Page 2 The reason this request is being made is that the State Lands Commission has refused to confirm the boundary of the Property and claims that the boundary of public trust interests along the Rhine Channel is "unresolved ". I have enclosed a copy of a letter dated December 12, 2012 from Grace Kato, Public Land Manager for the State Lands Commission which affirms that the Rhine Channel was dredged from Swamp and Overflow Lands. However, on January 28, 2013, Sheri Pemberton, Chief of External Affairs for the State Lands Commission wrote to me stating that the matter of the boundary along the Rhine Channel was unresolved, but could be resolved by agreement or by adjudication. I have enclosed a copy of Pember•ton's letter. It is the LLC's desire to resolve the boundary determination by agreement. I am available to discuss this matter at any time. You or any other member of the City staff can reach me at 949 -500 -6326 for any purpose. . inccrely, 1�1 a;r__ SHERMAN L. STACEY cc: Mr. & Mrs. John Morelrart 11 of 13 rMP GAINES SHERmAN L. STACEY LISA A. WEINBERG REBECCA A. MoNPsoN NANO! S. STACEY KIMBERLY RIBLE AI.ICIAB. BARTLEY BY HAND DELIVERY Mr. Chris Miller Harbor Resources City of Newport Beach 829 Harbor Island Dr. Newport Beach, CA 92660 LAW OFFICES OF GAINES & STACEY LLP TELEPHONE I I I1 BAYSIDr; DRIVE, SUITE 280 (949)640 -8999 CORONA DEL MAP, CALI FOINIA 92625 FAX (949)640 -8330 May 23, 2013 Re: Request for Boundary Line Agreement 2808 Lafayette Avenue, Newport Beacll Dear Mr. Miller: I have enclosed two copies of the survey of the real property located at 2808 Lafayette Avenue with notations as to the Bulkhead and Pierhead Lines and other matters which you suggested in your email of April 12, 2013. I request that you place this matter before the City Council for authorization for the City to enter into a boundary agreement with my client, 2808 Lafayette Property, LLC, and the State Lands Commission establishing the easterly bmmdarly of my client's property with the dedicated waterway known as the Rhine at the common boundary of the Bulkhead Line and Lancaster's Addition. The State Lands Commission requires that my client have an approval by the City for a boundary agreement before the State Lands Commission will consider entering into the agreement. I have also included my sununary of the relevant facts which have led to the necessity to establish what has been commonly considered the boundary since 1907. If you have any further questions, please do not hesitate to contact Inc. S' er ly,� SHERMAN L. STAC ' SLS /sh cc: Mr. & Mrs. John Morehart 12 of 13 REQUEST FOR BOUNDARY AGREEMENT ON RHINE CHANNEL 2808 LAFAYETTE AVENUE Prior to the dredging of the Rhine in Newport IIarbor, the abutting property was subdivided in 1907 with the recording of the subdivision map for Lancaster's Addition. Lancaster's Addition was pail of the lands patented to James McFadden in 1894 as Swamp and Overflow Lands No. 3089. The easterly boundary of Lancaster's Addition was shown as a waterway and named the "Rhine ". No waterway existed in 1907 or for many years thereafter. The expectation of the owner of the property, Newport Bay Dredging Co., was the dredging of a waterway on which some of Lancaster's Addition would have frontage. Congress authorized the Department of the Army to establish harbor lines in Newport Harbor in 1913. 33 U.S.C. §424. The first Harbor Lines were established in 1913. No IIarbor Lures were shown for the Rhine Channel as the Rhine Channel did not yet exist. By the time the Congress approved the Department of the Army drawing new Harbor Lines for Newport Harbor (33 U.S.C. §424a), the Rhine Channel existed and the Bulkhead Line was established in the 1936 Harbor Lines at the easterly boundary of Lancaster's Addition. The Bulkhead Line remains in that location to this day. The City has mapped the Rhine Channel as a "Waterway Dedicated for Use as Same ". The boundaries ofthe Dedicated Waterway end at the Bulkhead Line. Between the Bulkhead Line and the land has been mapped by the City and treated by the City as a Private Waterway. In 1964, the State Lands Commission, the City and the property owner entered into Boundary Agreement No. 54 establishing the boundary between public tidelands and private property on Block 324 of Lancaster's Addition (between 26 " and 28' Street) at the Bulkhead Line. Although there have not been disputes in the past, and many properties on the Rhine Charnel have bulkheaded and filled to the Bulkhead Line (e.g., the Cannery, Cannery Village), the State Lands Commission now requires a Boundary Agreement to permit the private property owner to proceed to use their property. The owner of the property at 2808 Lafayette Avenue has requested a Boundary Agreement to establish the legal boundary between private property and the public waterway. As the grantee of the public trust interest under the Beacon Bay Bill, the City is a necessary party to such an agreement. The historical record, prior City decisions, and prior agreements with the State Lands Commission acknowledge that the property fronting the Rhine Channel in Lancaster's Addition is private property. Therefore, it is appropriate for the City to enter into a boundary agreement with the owner and the State Lands Commission acknowledging the legal boundary of Lancaster's Addition. 13 of 13