HomeMy WebLinkAbout13 - 221 Santa Ana Avenue Improvements���WPORr == CITY OF
NEWPORT BEACH
"`FOaN'P Cott' Council Staff Report Agenda Item No. 13
September 11, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949- 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Kathryne Cho
APPROVED: :!�_ C_�\
TITLE: Request to Retain Existing Non - Standard Private Improvements
within the Public Right -of -Way at 221 Santa Ana Avenue
ABSTRACT:
Michael A. Ortlieb and Maureen L. Ortlieb, owners of the property at 221 Santa Ana
Avenue, request to retain non - standard private improvements within the Santa Ana
Avenue public right -of -way, including a raised planter, with varying height up to 2 feet,
encroaching 7 feet into the public right -of -way.
RECOMMENDATION:
Staff recommends that the City Council waive Council Policy L -6, Private
Encroachments in the Public Rights -of -Way, to allow an existing raised planter to
encroach up to 7 feet at 221 Santa Ana Avenue, contingent upon all conditions of the
Encroachment Permit process being met.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
Currently, there is an existing raised planter located within the property along the Santa
Ana Avenue frontage which encroaches up to 7 feet into the public right -of -way. The
encroachment of the existing raised planter violates Council Policy L -6, Section A, Item
1, which prohibits private encroachments to encroach in excess of 1 foot into the public
right -of -way. The property owners are requesting for a variance to Council Policy L -6
under Section G.
Request to Retain Existing Non - Standard Private Improvements within the Public Right -
of -Way at 221 Santa Ana Avenue
September 11, 2012
Page 2
The raised planter does not diminish the rights of the public, present and future. An
Encroachment Agreement would permit the City to terminate rights granted at any time
in the future and could require removal of the raised planter.
There are no existing City utilities within the parkway and the proposed encroachment
does not impact the public interest.
Currently, there are no sidewalks along the Santa Ana Avenue right -of -way nor has
Santa Ana Avenue been identified as a Significant Link Street in the City's circulation
system (Resolution No. 88 -88).
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to 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.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Attachments: A. Area Map
B. Project Plan
C. Council Policy L -6, Private Encroachments in Public Rights -of -Way
D. Encroachment Agreement (EPN 2012 -0247)
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EXISTING CONCRETE STAIRS
PATIO TO MAIN:
PROVIDE NEVI 1-112" HAND
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REFERENCE FLOOR PLANT
EXISTING ROOF/TII�Rj
TO RETdAIN
EXHIBIT B
PROJECT PLAN
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EXISTING 0JR8, GITTPR
AND SIDBYALK ALONG
SANTA ANA ST, TO RMAIN
°D PLANTER "' DN; ENGROACHI,IENT
.96NT REQUIRED
Owner: Michael A. Ortlleb&
Maureen L. Ortlieb Exhibit "A"
Address: 221 Santa Ana Avenue Page 1 of 1
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DECORATIVE EXPOSED
AGGREGATE CONCRETE TO
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.96NT REQUIRED
Owner: Michael A. Ortlleb&
Maureen L. Ortlieb Exhibit "A"
Address: 221 Santa Ana Avenue Page 1 of 1
EXHIBIT C
L-6
PRIVATE ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY
It is the general policy of the City that the public rights-of -way are to be reserved for
public use or open space; and that the rights of the public, present and future, are not to
be diminished by the installation of private improvements within the public rights -of-
way.
Categories of private encroachments and improvements are listed below, together with
the permit requirement for each category.
A. Private encroachments prohibited.
1. Structural encroachments not otherwise listed; including, but not limited
to, fences, walls, patios, raised planters, etc., which encroach in excess of 1
foot into the public right -of -way, or exceed 3 feet in height, measured
from the top of curb elevation/ or from sidewalk elevation where sidewalk
exists.
2. Driveway approaches not conforming to Council Policy Lr2
3. Ocean front street end, or Bay front street end improvements not
conforming to Council Policy L-8.
4. Ocean front alley end improvements not conforming to Council Policy
L-8.
5. Modifications to original design concepts approved by the City.
6. Private signs except as provided for in the Building Code.
7. Ughting.
8. Parkway surfacing of loose rock, gravel, or any surfacing other than
standard or colored/ textured concrete or flat stone /brick installed at
grade and grouted.
9. Private dwellings and appendages including raised patios and decks,
except as provided for in this section and the Building Code.
10. Pay telephones and private mail carriers drop boxes.
L-6
B. Private encroachments requiring an encroachment permit and if applicable an
encroachment agreement from the Public Works Department and General
Services Department approval.
1. Tree planting and removal.
2. Shrub planting and removal.
3. Median landscaping.
If, in the opinion of the General Services Department, the approved planting is not
being maintained for view and safety clearance, Chapter 10.50, "Public Nuisance
Abatement," of the Municipal Code shall be used to remove offending plant material.
The permit applicant shall reimburse the City of Newport Beach for the value of any
City tree removed by this process. This value will be determined by the City Arborist
using the International Society of Arboriculture's "Guide for Plant Appraisal."
C. Private encroachments requiring an encroachment permit and if applicable an
encroachment agreement from the Public Works Department.
1. Drive approaches conforming to Council Policy Lr2.
I Standard sidewalks.
3. Carriage walks.
4. Parkway surfacing (standard or colored/ textured concrete or flat
stone /brick) installed at grade (subject to General Services Department
review for tree well location).
5. CATV and public utility facilities.
6. Structural encroachments not otherwise listed; including, but not limited
to, fences, walls, patios, raised planters, etc., which encroach 1 foot or less
into the public right -of -way. If, however, in the opinion of the Public
Works Department, the nature or location of this type of encroachment is
such that Council review is warranted, the Department may forward the
item to the Council for action.
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7. Mailboxes, when required by the U.S. Postal Service. The front of mailbox
shall be aligned in the same vertical plane as the back of the curb. Mailbox
base construction length shall not exceed the length of the mailbox, or 24
inches, whichever is less.
8. The placement of utility pedestals shall be at the bark of sidewalks on
arterials and major pedestrian thoroughfares without zero setbacks. In
the commercial areas there shall be at least 4 feet of clear sidewalk width
and /or pedestals shall be placed in the parkway outside of walk area.
9. When connecting to or relocating public utilities.
D. Private encroachments requiring an Encroachment Permit from the Public Works
Department and subject to the execution of an agreement for non - standard
improvements.
1. Structural encroachments not otherwise listed which do not exceed 3 feet
in height, including, but not limited to fences, walls, and raised planters in
public rights -of -way in areas that are more than 8 feet behind the face of
curbs on the following streets:
a. Santa Ana Avenue from Cliff Drive to Fifteenth Street,
2. Permitted Structural Encroachments on Balboa Island along South Bay
Front, North Bay Front, Grand Canal, and East Bayfront are as follows:
a. Planters that do not exceed 1 foot in height located within 2'-6" of
the back of existing sidewalk, planted with ground cover and
shrubs not to exceed 2 feet in height measured from sidewalk
elevation;
b. Fences with a minimum setback of 2' -6" from back of sidewalk.
i. For patios constructed at grade elevation to 1' above
sidewalk grade elevation, Fences may be 3' high above
sidewalk grade in conformance with Building and Planning
Code Regulations.
ii_ For patios constructed greater than 1' above sidewalk grade
elevation, Fences must be set back a minimum of 3' from
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back of sidewalk, not exceed 2' -6" in height above the patio,
have at least 40% visibility through them, and not to exceed
4' in height above existing public sidewalk grade.
C, Patios with a minimum setback of 2'-6" from the back of sidewalk.
i. Raised Patios are permitted provided they have a maximum
height of 2' -6" above sidewalk grade, are set back a
minimum of 2' -6" from back of sidewalk, and provided all
bulkhead deadman and tiebacks supporting the Bay front
bulkhead are replaced "If required by the Public Works
Department" in conformance with the requirements of the
Public Works Department; Stairs located a minimum of 2' -6"
from back of sidewalk.
3. Structural encroachments not otherwise listed which do not exceed three
(3) feet in height, including, but not limited to fences, walls, patios and
raised planters in public rights -of -ways in areas that are five (5) feet
behind the face of curb on the following streets:
a. Southerly side of West Bay Avenue between 8th Street and 15th
Street.
If, in the opinion of the Public Works Department, the nature or location of this type of
encroachment is such that Council review is warranted, the Department may forward
the application to the City Council for original action.
The City Manager is authorized to execute, on behalf of the City, agreements for non-
standard improvements which are entered into pursuant to this section or other
authorization.
E. Private encroachments not requiring a permit:
1. Parkway lawn and ground cover.
2. Parkway sprinkling systems.
3. Use of public streets and projections over public property which are
covered by the Uniform Building Code under a valid building permit
issued by the City.
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F. Application for any permit as required by this policy shall be filed with the
Public Works Department on a form to be provided by the City and shall show
the proposed planting or work and the nature thereof. If the application is for a
permit required under Section A, it shall be forwarded to the City Clerk for
submission to the City Council. If the application is for a permit under Section B,
it shall be processed by the General Services Department. Drawings for
encroachment permits requiring City Council review shall be prepared to scale.
Plan and elevation drawings shall accurately depict location, height, and extent
of the proposed encroachments. No building permit shall be issued on a parcel
whose access requires City Council review for an encroachment permit on public
property, until said encroachment permit has been issued.
G. Variances from the strict application of this policy shall not be granted unless
individual circumstances indicate that approval will be consistent with the public
interest.
Adopted - August 25,1969
Amended - February 14,1972
Amended - August 11, 1975
Amended - February 9,1981
Amended - November 23,1981
Amended - October 27,1986
Amended - January 26,1987
Amended - July 13,1987
Amended - February 13,1989
Amended - August 14,1989
Amended - November 27,1989
Amended - December 9,1991
Amended - December 14,1992
Amended - July 12,1993
Amended - January 24,1994
Amended - May 9,1994
Amended - February 27,1995
Amended - February 26,1996
Amended - May 8, 2001
5
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658 -8915
EXHIBIT D
Space above this line for Recorders use only.
ENCROACHMENT AGREEMENT
(EPN 2012 -0247)
THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into
this day of , 2012, by and between Michael A. Ortlieb and
Maureen L. Ortlieb, as community property ( "Owner "), and the City of Newport Beach,
California, a California municipal corporation organized and existing under and by virtue
of its Charter and the Constitution and the laws of the State of California ( "City ").
WITNESSETH:
WHEREAS, Owner is the vested owner of property located at 221 Santa Ana
Avenue Newport Beach, California 92663 and legally described as Lot 54 of Tract 444,
as shown on a map recorded in Book 19, Pages 29 inclusively of Miscellaneous Maps
in the office of the County Recorder of Orange County, County Assessor's Parcel
Number 428- 383 -15 ( "Property").
WHEREAS, Owner desires to construct certain non - standard improvements as
further described herein ( "Permitted Improvements ") within the Santa Ana Avenue right -
of -way (hereinafter "Right -of- Way ") that is located adjacent to the Property.
WHEREAS, said Permitted Improvements may interfere in the future with City's
ability to construct, operate, maintain, and replace City and other public facilities and
improvements within Right -of -Way; and
WHEREAS, the parties hereto desire to enter this Agreement providing for
fulfillment of the conditions required by City to permit Owner to construct and maintain
said Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. It is mutually agreed that Permitted Improvements shall be defined as
a. A raised planter with varying heights up to 2 feet encroaching up to 7 feet
into Right -of -Way, constructed of stacked gray bricks and topped with exposed
aggregate pavers;
b. Decorative walk along the Santa Ana Avenue frontage encroaching up to
7 feet into Right -of -Way, constructed of gray exposed aggregate concrete pavers and
appurtenances,
as shown on EXHIBIT "A" attached hereto and as approved by the Public Works
Department.
C. In addition, if any of the Permitted Improvements actually built or installed
during the time of construction vary from the Permitted Improvements approved herein,
such variations or changes must be approved in advance by the Public Works
Department and shall be shown on the "As Built" plans.
2. City will permit Owner to construct, reconstruct, install, maintain, use, operate,
repair and replace said Permitted Improvements and appurtenances incidental
thereto, within a portion of Right -of -Way, if in substantial conformance with the
plans and specifications on file in the City. City will further allow Owner to take
all reasonable measures necessary or convenient in accomplishing the aforesaid
activities.
3. Rights granted under this Agreement may be terminated by City with or without
cause and at any time without notice. The City shall make good faith efforts to
provide notice (60) days in advance of termination specifying in said notice the
date of termination. City shall incur no liability whatsoever in the event of the
termination of this Agreement, or subsequent removal of improvements by City.
4. Owner and City further agree as follows:
a. Owner may construct and install Permitted Improvements and
appurtenances incidental thereto, in substantial conformance with the plans and
specifications on file in the City's Public Works Department, and as described on Exhibit
"A" attached hereto.
b. Owner shall maintain the Permitted Improvements in accordance with
generally prevailing standards of maintenance, and pay all costs and expenses incurred
in doing so. However, nothing herein shall be construed to require Owner to maintain,
replace or repair any City -owned pipeline, conduit or cable located in or under said
Permitted Improvements, except as otherwise provided herein.
C. If City or other public facilities or improvements are damaged by the
installation or presence of Permitted Improvements, Owner shall be responsible for the
cost of repairs.
d. That should City be required to enter onto said Right -of -Way to exercise
its primary rights associated with said Right -of -Way, including but not limited to, the
Encroachment Agreement Page 12
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maintenance, removal, repair, renewal, replacement or enlargement of existing or future
public facilities or improvements, City may remove portions of the Permitted
Improvements, as required, and in such event:
i) City shall notify Owner in advance of its intention to accomplish such work,
provided that an emergency situation does not exist.
ii) Owner shall be responsible for arranging for any renewal, replacement, or
restoration of the Permitted Improvements affected by such work by City.
iii) City agrees to bear only the cost of any removal of the Permitted
Improvements affected by such work by City.
iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of
the Permitted Improvements.
5. In the event either party breaches any material provision of this Agreement, the
other party at its option may, in addition to the other legal remedies available to it,
terminate this Agreement, and, in the event the breaching party is Owner, City
may enter upon the Right -of -Way and remove all or part of the improvements
installed by Owner. Termination because of breach shall be upon a minimum of
ten (10) day notice, with the notice specifying the date of termination. In the
event of litigation, commenced with respect to any term of condition of this
Agreement, the prevailing party shall not be entitled to reasonable attorneys fees
and costs incurred.
6. Owner shall defend, indemnify and hold harmless City, its City Council, boards
and commissions, officers and employees from and against any and all loss,
damage, liability, claims, suits, costs and expenses whatsoever, including
reasonable attorneys' fees (when outside attorneys are so utilized), regardless of
the merit or outcome of any such claim or suit arising from or in any manner
connected with the design, construction, maintenance, or continued existence of
the Permitted Improvements.
7. Owner agrees that this Agreement shall remain in full force and effect from
execution thereof; shall run with the land, shall be binding upon the heirs,
successors, and assigns of Owners' interest In the land, whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
Encroachment Agreement Page 13
i2
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
12. Owner shall at Owner's own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
13. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
Encroachment Agreement
Page 14
L,
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp,
City Attorney
ATTEST:
Date:
By:
Leilani Brown, City Clerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
By:
David Kiff,
City Manager
OWNER(s):
Date:
By:
Michael A. Ortlieb
IN
Maureen L. Ortlieb
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
11users pbwlsharedll- encroach Vow agreements120121n2012 -0247 221 santa ana avenue (ortlieb).doc
Encroachment Agreement
Page 15
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ACKNOWLEDGMENT
State of California
County of ) ss.
On before me,
Notary Public, personally appeared
,who 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 signatures(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
State of California
County of ) ss.
On before me,
Notary Public, personally appeared
,who 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 signatures(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
Encroachment Agreement Page 16
uS'RNG CONORM STAIRS
PAITO TO REMAIN; —
PROVIDE NEV/ 1 -1/0 HAW
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NEW WOOD DECK;
REFERME FLOOR PLAN 7
EXISTING ROOF GUTTER I
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Owner: Mlchael A. Ordleb $
Maureen L. Ortlleb
Address: 221 Santa Ana Avenue
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EXISTING CURB, GUTTER
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EXhlblt "A"
Page 1 of 1
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