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HomeMy WebLinkAbout04 - Vacation and Abandonment of Portions of Unused Right-of-Way Along the Westerly Side of Ocean Boulevard in Corona del MarSeptember 28, 1998 CITY COUNCIL AGENDA ITEM NO. 4- TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: VACATION AND ABANDONMENT OF PORTIONS OF UNUSED RIGHT - OF -WAY ALONG THE WESTERLY SIDE OF OCEAN BOULEVARD IN CORONA DEL MAR LOCATION: On Ocean Boulevard adjacent to 2735 and 2741 Ocean Boulevard in Corona del Mar. RECOMMENDATIONS: 1. Adopt Resolution No. 98--ordering the summary vacation and abandonment of unused right -of -way along the westerly side of Ocean Boulevard adjacent to 2735 and 2741 Ocean Boulevard in Corona del Mar. 2. Direct the City Clerk to have the Resolution recorded by the County Recorder. 3. Establish height of landscaping to be allowed at either 60 inches or 48 inches. DISCUSSION: The City has received a request from the property owners at 2735 and 2741 Ocean Boulevard, to abandon a portion of the right of way adjacent to their properties. The property to be abandoned is a steep slope that runs from the back of sidewalk to the existing private property boundary. The Public Works Department has determined that the right -of -way to be abandoned is unsuitable for any present or prospective public use. The sidewalk was constructed and the slope improved by the adjoining property owner pursuant to verbal approval from the City that was given in the early 1970's. The property owners at 2735 and 2741 Ocean Boulevard have agreed to record a restrictive covenant in favor of the City that would prohibit any structure or new landscaping in the area to be abandoned that would interfere with views from the sidewalk. This covenant would be recorded contemporaneously with the resolution of abandonment. Staff is proposing only to abandon the right -of -way adjacent to 2735 and 2741 Ocean Boulevard at this time because we have not had an opportunity to discuss the restrictive covenant with the other property owner. The proposed Restrictive Covenant is attached for reference. SUBJECT: VACATION AND ABANDONMENT OF PORTIONS OF UNUSED RIGHT -OF -WAY ALONG THE WESTERLY SIDE OF OCEAN BOULEVARD IN CORONA DEL MAR September 28. 1998 Page 2 of 2 Attached is a letter from Phil Sanone that comments on the Restrictive Covenent. He questions the clause for 2735 Ocean Boulevard that determines the landscaping "is a legal non - conforming use ". He feels the height of the landscaping should be kept below 4 feet instead of the 60 inches required by the Restrictive Covenent. Attached are two pictures showing the existing landscaping which is over 72 inches high in many places. The right -of -way proposed for abandonment as described in Exhibit "A" and depicted in Exhibit "B" is not needed for any present or future public use and the Public Works Department concurs with the abandonment. This right -of -way has not been used for at least five years, the City has no facilities or utilities within the easement, has no future plans to use the right -of -way and feels that it can be summarily vacated. It is recommended that City Council approve the Resolution and that the subject right -of- way be summarily vacated; and that the City Council give the staff direction on the maximum height the landscaping should be kept prunned above sidewalk level. Should it be 60 inches or 48 inches? Respectfully submi d, (Z2 Public Works Department Don Webb, Director By: a Gam' ich rd L. Hoffstadt P. L( a , Development Engineer Attachments: Letter Dated September 20, 1998 Exhibit "A" Exhibit "B" Resolution of Intention Restrictive Covenant \\dp\sys\ groups \pubworks \council \fy98 -99 \august- 24 \ocea n.doc 714675�:138 PHIL- SANSGNE 525 F01 MEMq&AN]1QM TO: Bob Burnham, City Attorney Robin Clauson, Assistant City Attorney Councilman Dennis O'Neil FROM: Phil Sansone SEP 20 'S8 17.12 Re: Proposed Abandonment of Publlc Rlght -of -way at 2735 and 2741 Ocean Boulevard No objections to material on 2741 Ocean. The City Arborist should direct any tree trimming that is required to comply with the appropriate section of paragraph 2, "Restrictions'. The accuracy of the statement in paragraph C, o`_ the 4IRestrict ions "for the property at 2735 Ocean which reads "is a legal non - conforming use" is hereby challenged. While there may not be an official encroachment permit, City records (old PB &R) will show that for many years appropriate officials unsuccessfully attempted to maintain the public view by having the shrubbery trimmed. As I recall, the City position was that the height of the shrubbery was to be maintained level with the height of the owner - installed railing across the front of the property. The City's inability to effect Compliance over the years, due to lack of enforcement personnel or, otherwise, has resulted in the shrubbery now approaching. six (6) feet in height, completely obstructing the public view of the harbor, ocean and peninsula. This property should have the same restriction as that being imposed on 2741, specifically, landscaping and vegetation on the property shall not exceed the permitted height of structures. In any event, the maximum height measured from the lowest point of the sidewalk should not exceed four (4) feet. RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ORDERING THE SUMMARY VACATION AND ABANDONMENT OF A PORTION OF OCEAN BOULEVARD LOCATED ADJACENT TO 2735 AND 2741 OCEAN BOULEVARD IN CORONA DEL MAR; AND DIRECTING THE CITY CLERK TO RECORD SAME WITH THE COUNTY RECORDER'S OFFICE WHEREAS, the City Council of the City of Newport Beach, pursuant to the provisions of the Street Vacation Act (Section 8300 et sec. of the Streets & Highways Code) is authorized to vacate a portion of a public easement; and WHEREAS, the City Council of the City of Newport Beach desires to vacate the portion of Ocean Boulevard, legally described in Exhibit "A" and depicted on the map in Exhibit "B, the vacation to be processed pursuant to the provisions of the Street Vacation Act. WHEREAS, the easement above - described has not been used for five years by the City of Newport Beach or public utilities for the purpose for which it was dedicated or acquired and has remained continuously unused by the City of Newport Beach or public utility for any public purpose for a period of five consecutive years; and WHEREAS, no money has been expended for the maintenance of the easement during that period of time; and WHEREAS, there are no public utility facilities in place that would be affected by the vacation and abandonment of this easement; and WHEREAS, the City Council of the City of Newport Beach has reviewed and considered the various elements of the General Plan of the City of Newport Beach prior to declaring a summary vacation of easement and has determined that the proposed vacation is consistent with the General Plan, and WHEREAS, the easement is unnecessary for present or prospective public use, and it is the desire of the City Council of the City of Newport Beach to vacate the easement legally described in Exhibit "A" and depicted on Exhibit "B ", the vacation and abandonment to be processed pursuant to the provisions of the Street Vacation Act, and WHEREAS, the City Council has considered and approved the attached Restrictive Covenant and Agreement to Maintain Property. NOW, THEREFORE, be it resolved by the City Council of the City of Newport Beach that the portion of street easement legally described in Exhibit "A ", and depicted on the map attached as Exhibit "B" is hereby ordered to be summarily vacated and abandoned. Provided however, that abandonment shall not become effective until the Restrictive Covenant and Agreement to Maintain Property, approved by City Council concurrently with this Resolution, has been recorded. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to have this Resolution of Vacation be recorded with the Orange County Recorder. ATTEST: CITY CLERK Adopted this _day of 1998 I AT -Tie-P: resolu6.ons*Oc an -2 EXHIBIT "A" That certain portion of street right of way within Ocean Boulevard in the City of Newport Beach, County of Orange, State of California lying easterly of and adjoining Block 033 of the Corona Del Mar Tract as shown on map thereof filed in Book 3, Pages 41 and 42 of Miscellaneous Maps in the office of the County Recorder of said County. Said certain portion being bound on the west by the easterly boundary of said Block 033, bound on the east by a line parallel and 55.00 feet westerly, measured at right angles, from the easterly line of said Ocean Boulevard and its northerly and southerly prolongation, bound on the north by the southeasterly prolongation of the northeasterly line of Parcel A as shown on a map of City of Newport Beach Resubdivision No. 82 recorded August 3,1959 as Document No. 124759 and filed in Book 4825, Pages 125 through 127 inclusive of Official Records in the office of said County Recorder and bound on the south by the southeasterly prolongation of the southwesterly line of Shell Street (formerly A Street) as shown on said map of Corona Del Mar Tract. F: \cat \Sha red \data g \Hamilton \ExhibitA.doc EXHIBIT "B" 1 YY N 0 R T H ii . . .... ......... . . .. .... .. ... VICINITY MAP :17. RECORDING REQUESTED BY RECORDERS USE ONLY AND WHEN RECORDED RETURN TO: City of Newport Beach Planning Department 3300 Newport Blvd. P.O. Box 1768 Newport Beach, California 92658 -8915 RESTRICTIVE COVENANT AND AGREEMENT TO MAINTAIN PROPERTY This Restrictive Covenant and Agreement to Maintain Property (Covenant) is made in favor of the City of Newport Beach by John W. Hamilton and Kathryn D. Hamilton (Owners) with reference to the following: A. Owners are the owners in fee of the real property commonly known as 2735 Ocean Boulevard (Parcel). The Parcel is legally described in Exhibit "A" and depicted in Exhibit "B ". B. City possesses an easement for street and highway purposes over the Property adjacent to the Parcel and westerly of public improvements associated with Ocean Blvd (the Property). The Property is legally described in Exhibit "A" and depicted Exhibit "B ". C. The Property consists of steep slopes that are unsuitable for any public improvement and are not necessary for any present or prospective public purpose. D. Owners have improved the Property in conjunction with their use of the Parcel as a single - family residence. The improvements were authorized by the City and have been in place for more than twenty -five years. E. City desires to abandon the Property while preserving public views from the adjacent sidewalk by controlling the height and nature of improvements within the Property. F. Owner acknowledges that City would not abandon the Property but for Owners agreement to execute and record this Covenant. NOW, THEREFORE, the Parties agree as follows: 1. ABANDONMENT City will adopt a Resolution of Abandonment for the Property (Resolution). The Resolution shall reference this Covenant and shall reserve to the City all appropriate public facilities easements. The Resolution and this Covenant shall concurrently be filed with the County Recorder. 2. Owner agrees to the following restrictions on the use of the Property; A. The Property shall be used only in conjunction with the permitted uses on the Parcel and shall be considered as a single building site for all purposes; B. Structures on the Property shall strictly comply with all provisions of the Newport Beach Municipal Code (NBMC), including, without limitation, Title 20 of the NBMC (Zoning Code) restrictions on the height and location of structures. C. Landscaping and vegetation on the Property shall not exceed the permitted height of structures. However, the existing (as of the date of this Covenant) hedge immediately adjacent to the sidewalk is a legal non - conforming use and shall be permitted to a height of sixty (60) inches above the elevation of the adjacent sidewalk. D. Structures and landscaping on the Property shall not affect or damage the integrity of the adjacent public right -of -way including Ocean Boulevard or public facilities located in the adjacent public right -of -way. 3. MAINTENANCE Owner agrees to maintain all landscaping and vegetation on the Property and the Parcel at or below the height specified in this Covenant. City shall have the right to enter onto the Property or Parcel and bring the landscaping or vegetation into conformance with this Covenant in the event Owner fails to do so within ten (10) days after written notice of non- compliance is served on Owner. Owner shall pay City all costs associated with enforcement of the height restrictions on vegetation or structures. 4. MUTUAL RELEASE A. Owner agrees to release and discharge the City (including officers and employees) from any claim, loss or liability or damage that now exists or may exist at any time in the future, that is in any way related to City ownership, control or maintenance of the Property. Owner also acknowledges that all control over, or maintenance of, the Property has been the responsibility of Owner, or Owner's predecessors, for at least twenty (20) years prior to the date of this Covenant. Owner has consulted with legal counsel and as a result of that consultation fully understands the nature and extent of this release. B. City releases and discharges Owner (including agents arlg representatives) from any claim, loss, liability or damage that is any way related to Owners improvements to, or maintenance or control of, the Property prior to the date this Covenant is recorded. C. In granting their mutual releases, City and Owner waive the provisions of Section 1542 of the Civil Code that reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 5. NOTICES Notices required to be sent pursuant to this Covenant shall be deem given when personally delivered to the Party or when deposited in the U.S. Mail, first class postage prepaid and addressed as follows: OWNER CITY Dated: Dated: John W. and Kathryn D. Hamilton 2735 Ocean Blvd Corona Del Mar, CA 92625 City Manager 3300 Newport Blvd. Newport Beach, CA 92663 Approved for recording. Signature Print or Type Name Signature Print or Type Name By: f. \cat \Shared Wg \Hamilton \0918098.doc } STATE OF CALIFORNIA }ss COUNTY OF ORANGE } On , before me , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (this area for official notarial seal) Title of Document Date of Document Other Signatures not acknowledged No. of Pages EXHIBIT "A" The Prooert v That certain portion of street right of way within Ocean Boulevard in the City of Newport Beach, County of Orange, State of California lying easterly of and adjoining Block 033 of the Corona Del Mar Tract as shown on map thereof filed in Book 3, Pages 41 and 42 of Miscellaneous Maps in the office of the County Recorder of said County. Said certain portion being bound on the west by the easterly boundary of said Block 033, bound on the east by a line parallel and 55.00 feet westerly, measured at right angles, from the easterly line of said Ocean Boulevard and its northerly and southerly prolongation, bound on the north by the southeasterly prolongation of the northeasterly line of Parcel A as shown on a map of City of Newport Beach Resubdivision No. 82 recorded August 3,1959 as Document No. 124759 and filed in Book 4825, Pages 125 through 127 inclusive of Official Records in the office of said County Recorder and bound on the south by the southeasterly prolongation of the southwesterly line of Shell Street (formerly A Street) as shown on said map of Corona Del Mar Tract. Parcel Parcel A as shown on a map of City of Newport Beach Resubdivision No. 82 recorded August 3,1959 as Document No. 124759 and filed in Book 4825, Pages 125 through 127 inclusive of Official Records in the office of said County Recorder. F:\cat\Shared\da\Ag\Hamilton\ParceIA2735.doc EXHIBIT 111311 Z-� N 0 R T H ......... VICINITY MAP YO J ]NWT RECORDING REQUESTED BY RECORDERS USE ONLY AND WHEN RECORDED RETURN TO: City of Newport Beach Planning Department 3300 Newport Blvd. P.O. Box 1768 Newport Beach, Califomia 92658 -8915 RESTRICTIVE COVENANT AND AGREEMENT TO MAINTAIN PROPERTY This Restrictive Covenant and Agreement to Maintain Property (Covenant) is made in favor of the City of Newport Beach by Wade Ellis and Elsie Ellis (Owners) with reference to the following: A. Owners are the owners in fee of the real property commonly known as 2741 Ocean Boulevard (Parcel). The Parcel is legally described in Exhibit "A" and depicted in Exhibit "B ". B. City possesses an easement for street and highway purposes over the Property adjacent to the Parcel and westerly of public improvements associated with Ocean Blvd (the Property). The Property is legally described in Exhibit "A" and depicted Exhibit "B ". C. The Property consists of steep slopes that are unsuitable for any public improvement and are not necessary for any present or prospective public purpose. D. Owners have improved the Property in conjunction with their use of the Parcel as a single - family residence. The improvements were authorized by the City and have been in place for more than twenty -five years. E. City desires to abandon the Property while preserving public views from the adjacent sidewalk by controlling the height and nature of improvements within the Property. F. Owner acknowledges that City would not abandon the Property but for Owners agreement to execute and record this Covenant. NOW, THEREFORE, the Parties agree as follows: 1. ABANDONMENT City will adopt a Resolution of Abandonment for the Property (Resolution). The Resolution shall reference this Covenant and shall reserve to the City all appropriate public facilities easements. The Resolution and this Covenant shall concurrently be filed with the County Recorder. 9 Owner agrees to the following restrictions on the use of the Property; A. The Property shall be used only in conjunction with the permitted uses on the Parcel and shall be considered as a single building site for all purposes; B. Structures on the Property shall strictly comply with all provisions of the Newport Beach Municipal Code (NBMC), including, without limitation, Title 20 of the NBMC (Zoning Code) restrictions on the height and location of structures. C. Landscaping and vegetation on the Property shall not exceed the permitted height of structures, except that two pine trees that exist on the Property as of the date of this Convenant may exceed the height limitations so long as Owner keeps the pine trees trimmed in the manner recommended by the City arborist. D. Structures and landscaping on the Property shall not affect or damage the integrity of the adjacent public right -of -way including Ocean Boulevard or public facilities located in the adjacent public right -of -way. 3. MAINTENANCE Owner agrees to maintain all landscaping and vegetation on the Property and the Parcel at or below the height specified in this Covenant. City shall have the right to enter onto the Property or Parcel and bring the landscaping or vegetation into conformance with this Covenant in the event Owner fails to do so within ten (10) days after written notice of non- compliance is served on Owner. Owner shall pay City all costs associated with enforcement of the height restrictions on vegetation or structures. 4. MUTUAL RELEASE A. Owner agrees to release and discharge the City (including officers and employees) from any claim, loss or liability or damage that now exists or may exist at any time in the future, that is in any way related to City ownership, control or maintenance of the Property. Owner also acknowledges that all control over, or maintenance of, the Property has been the responsibility of Owner, or Owner's predecessors, for at least twenty (20) years prior to the date of this Covenant. Owner has consulted with legal counsel and as a result of that consultation fully understands the nature and extent of this release. B. City releases and discharges Owner (including agents and representatives) from any claim, loss, liability or damage that is in any way related to Owners improvements to, or maintenance or control of, the Property prior to the date this Covenant is recorded. C. In granting their mutual releases, City and Owner waive the provisions of Section 1542 of the Civil Code that reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 5. NOTICES Notices required to be sent pursuant to this Covenant shall be deem given when personally delivered to the Party or when deposited in the U.S. Mail, first class postage prepaid and addressed as follows: OWNER reTFIN1 Dated: Dated: Wade Ellis and Elsie Ellis 2741 Ocean Blvd Corona Del Mar, CA 92625 City Manager 3300 Newport Blvd. Newport Beach, CA 92663 Approved for recording. 0 Signature Print or Type Name Signature Print or Type Name f:\cat\SharedVAg\Ellis\092198.doc } STATE OF CALIFORNIA }ss COUNTY OF ORANGE } On , before me , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (rhis area for official notarial seal) Title of Document Date of Document No. of Pag Other Signatures not acknowledged EXHIBIT "A" The Propert y That certain portion of street right of way within Ocean Boulevard in the City of Newport Beach, County of Orange, State of California lying easterly of and adjoining Block 033 of the Corona Del Mar Tract as shown on map thereof filed in Book 3, Pages 41 and 42 of Miscellaneous Maps in the office of the County Recorder of said County. Said certain portion being bound on the west by the easterly boundary of said Block 033, bound on the east by a line parallel and 55.00 feet westerly, measured at right angles, from the easterly line of said Ocean Boulevard and its northerly and southerly prolongation, bound on the north by the southeasterly prolongation of the northeasterly line of Parcel A as shown on a map of City of Newport Beach Resubdivision No. 82 recorded August 3,1959 as Document No. 124759 and filed in Book 4825, Pages 125 through 127 inclusive of Official Records in the office of said County Recorder and bound on the south by the southeasterly prolongation of the southwesterly line of Shell Street (formerly A Street) as shown on said map of Corona Del Mar Tract. Parcel Parcel B as shown on a map of City of Newport Beach Resubdivision No. 82 recorded August 3,1959 as Document No. 124759 and filed in Book 4825, Pages 125 through 127 inclusive of Official Records in the office of said County Recorder. F:\cat\Shared\da\Ag\Ellis\ParceIB2741.doc EXHIBIT "B" 1 N N 0 R T H VICINITY MAP 1\ AREA TO BE VACATED iT �� 0 0 2741 OCEAN BOULEVARD