Appendix C
OCEANFRONT ENCROACHMENT POLICY GUIDELINES
The Oceanfront Encroachment Policy established specific restrictions and conditions on the installation of private improvements in the public right of way along the oceanfront from the Santa Ana River Channel to Channel Road.
The policy included a mitigation program involving the reconstruction of 33 unimproved street ends between 36th Street and Summit Street to provide additional parking and improved public access. In 2002, the final five street ends were reconstructed. Pursuant to the mitigation program, a minimum of 85 percent of the encroachment fees will be used for the construction and maintenance of improvements which directly benefit the beach-going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects.
The Oceanfront Encroachment Policy was originally approved by the Coastal Commission on June 11, 1991 and finalized by the City Council through the adoption of Resolution No. 91-80 on July 11, 1991. These restrictions and conditions were incorporated into the Coastal Land Use Plan, which was approved by the Coastal Commission on October 13, 2005, adopted by the City Council on December 13, 2005, and became effective on February 8, 2006.
These guidelines are intended to implement the Oceanfront Encroachment Policy by establishing a procedure for approval of permitted encroachments, removal of prohibited encroachments, limiting the extent of encroachments, and clarification of improvements permitted within each encroachment zone.
A. Definitions.
1. For the purpose of this Section, the following words and phrases shall be defined as specified below:
a. Existing encroachment shall mean any encroachment or improvement installed or constructed before May 31, 1992.
b. New encroachment shall mean any encroachment or improvement installed or constructed after May 31, 1992.
c. Improvements or Encroachments shall mean any object, thing or landscaping:
i. within or oceanward of any encroachment zone described in this policy;
ii. within or oceanward of the north edge of the Oceanfront Boardwalk, between 36th Street and A Street; or
iii. oceanward of any residential parcel from a point 250 feet southeast of E Street to Channel Road.
d. Encroachment permit shall mean the permit issued by the Public Works Director authorizing the maintenance or installation of encroachments or improvements within the encroachment zones described in this policy.
e. Application shall mean any application for an encroachment permit pursuant to the provisions of this policy and the land use plan of the local coastal program.
f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the concrete walkway along the oceanside of ocean front residential properties between 36th Street and a point approximately 250 feet southeast of E Street.
B. Encroachment Zones.
Subject to compliance with the provisions of this policy:
1. The owner of any ocean front residential parcel between the Santa Ana River and 52nd Street may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel.
2. The owner of any oceanfront residential parcel between 52nd Street and 36th Street may install improvements on the ocean side of the parcel up to a maximum of 10 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel.
3. The owner of any oceanfront residential parcel between A Street and a point 250 feet southeast of E Street may install improvements up to the inland edge of the Oceanfront Boardwalk and within an oceanward prolongation of the property lines on the side of the parcel.
C. Prohibited Encroachments.
1. Encroachments and improvements are prohibited oceanward of private property between 36th Street and A Street.
2. Encroachments and improvements are prohibited oceanward of any ocean front parcel from a point 250 feet southeast of E Street to Channel Road, with the exception of landscaping trees existing prior to October 22, 1991, and groundcover.
3. Any existing encroachment or improvement for which no application has been filed on or before May 31, 1992, and any new encroachment or improvement for which no application is filed prior to installation is prohibited.
4. Any new or existing encroachment or improvement which, on or after July 1, 1992, is not in conformance with this policy is prohibited.
5. Any new or existing encroachment or improvement for which there is no valid permit.
D. Permitted Encroachment/Improvements.
Subject to compliance with the provisions of this policy, the following improvements are permitted within the encroachment zones described in Section B:
1. Patio slabs or decks no higher than six inches above existing natural grade. The determination of grade will be made as provided in Section J.
2. Walls and/or fences less than 36 inches in height above existing natural grade. The determination of grade will be made as provided in Section J.
3. Existing improvements which were constructed in conjunction with development for which a building permit was issued may be approved by the Public Works Director upon a finding that the improvement is consistent with or is modified to be consistent with the standards of this chapter.
4. Where a shoreline protective device per Section 21.30.030 (Natural Landform and Shoreline Protection) cannot be sited within private property, it may be sited as close as feasible to private property. In no event shall a shoreline protective device be constructed to protect a private encroachment authorized on a public right-of-way.
E. Prohibited Improvements.
1. Except for perimeter walls and/or fences less than 36 inches in height, any structural, electrical, plumbing or other improvements which require issuance of a building permit.
2. Pressurized irrigation lines and valves.
3. Any object which exceeds 36 inches in height, exclusive of the following:
a. Trees planted by the City of Newport Beach or private parties pursuant to written policy of the City Council of the City of Newport Beach; or
b. Any landscaping or vegetation within the encroachment zone subject to the following:
i. The vegetation or landscaping was installed prior to the first effective date of this policy;
ii. The vegetation or landscaping does not block views from adjoining property;
iii. The vegetation or landscaping does not function as a hedge as defined in Title 20 of the Newport Beach Municipal Code; and
iv. The vegetation or landscaping does not impair or affect the health, safety or welfare of persons using the oceanfront Walk, nearby property owners, or residents of the area.
v. New plant materials that have not been approved by a coastal development permit issued by the Coastal Commission.
Notwithstanding the provisions of this Subparagraph, the City reserves the right to reduce the height of any existing landscaping at any time, upon a determination by the Public Works Director, and after notice to the owner of property on which the vegetation or landscaping exists, that a reduction in height is necessary or appropriate given the purposes of this policy.
F. Permit Process.
1. An encroachment permit shall be required for all permitted improvements. The application shall be filed with the Public Works Department on a form provided by the City. The application shall be signed by the owner of the property, or an agent of the owner if the application is accompanied by a document, signed by the owner, granting the agent the power to act for the owner with respect to the property. The application shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all proposed improvements and objects within the encroachment zone. Applications with incomplete information and/or inadequate drawings will not be accepted.
2. Applications for existing encroachments must be filed on or before May 31, 1992. Applications for new encroachments shall be filed before any encroachment or improvement is installed. No new encroachments or improvements shall be installed without an encroachment permit.
3. Upon receipt of the application, the Public Works Director shall, within fifteen (15) days after the date of filing, determine if the application is complete or if additional information is necessary or appropriate to an evaluation of the application. In the event the application is incomplete or additional information is necessary, written notice to that effect shall be sent to the property owner within twenty (20) days after the application is filed.
4. With respect to applications for existing encroachments, an inspection shall be conducted of all improvements within the encroachment zone before a permit is issued by the Public Works Director. With respect to applications for new encroachments, an on site inspection will be conducted after installation of the improvements to insure conformity with provisions of the permit and this Section.
5. The Public Works Director shall approve the permit upon a determination that the encroachments proposed to be constructed, or to remain, are permitted by this Section, the applicant has agreed to abide by all of the terms and conditions imposed on the permit, and the applicant has paid all fees.
6. The Public Works Director shall have the authority to condition his/her approval of the encroachment permit as necessary or appropriate to insure compliance with the provisions of this Section. The Public Works Director shall have the specific authority to condition approval of an encroachment permit on the removal of nonconforming improvements within a specified period of time.
7. The Public Works Director shall notify the applicant of his/her decision within sixty (60) days after the application is filed and the decision of the Public Works Director shall be final.
G. Term.
1. Except as provided in this Section, annual encroachment permits shall expire on June 30 of each calendar year.
2. Encroachment permits issued prior to June 30, 1992 shall expire June 30, 1993.
H. Renewal.
1. Annual renewal fees shall be due and payable on or before May 31 preceding the annual term of the permit. For example: Annual renewal fees due on May 31, 2001, are for the period July 1, 2001 through June 30, 2002.
2. The Public Works Director shall approve annual renewal if:
a. The applicant has complied with all standard and special conditions of approval;
b. The applicant has constructed only those improvements and encroachments authorized by the permit;
c. The applicant is in compliance with all of the provisions of this policy.
I. Standard Conditions.
1. The Public Works Director shall impose standard conditions of approval on all encroachment permits. These standard conditions shall include, without limitation, the following:
a. The obligation of permittee to comply with all of the provisions of this policy and all conditions imposed upon the permit.
b. The right of the Public Works Director to revoke any permit after notice and hearing if the permittee is in violation of this policy or conditions to the permit.
c. The right of the City to summarily abate encroachments or improvements which are prohibited by this policy or conditions on the permit upon ten (10) days’ written notice.
d. The obligation of permittee to pay all costs incurred by the City in summarily abating any prohibited improvement.
e. The obligation of permittee to defend, indemnify and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment.
f. Permittee’s waiver of any right to contest the City’s street and public access easement over property within or oceanward of the encroachment zones.
g. The right of the Public Works Director or his designee to inspect improvements within the encroachment zone without notice to the permittee.
h. The right of the City to cancel or modify any, or all, encroachment permit(s) upon a determination by the City Council to construct a public facility or improvement within or adjacent to the encroachment zone.
2. The construction of any seawall, revetment or other device necessary to control erosion, shall occur as close to private property as feasible.
Erosion control devices shall not be placed or installed closer to the ocean to protect improvements or encroachments.
3. The Public Works Director may impose additional standard conditions necessary or appropriate to insure compliance with, or facilitate City administration of this policy.
J. Determination of Grade.
1. The nature of the beach makes a precise determination of grade difficult. The level of the sand changes with wind, storm, and tidal conditions. The Public Works Director shall determine the level from which the height of encroachments and improvements is to be measured. In making this determination, the Public Works Director shall consider the following criteria:
a. The existing natural grade in the area;
b. Any data on the historic elevation of the beach in that area.
K. Annual Fee.
1. The fees based on the depths of encroachment shown below shall be established by resolution of the City Council and paid annually as a condition of the issuance of encroachment permits:
Depth of Encroachment.
0 - 5 feet
5 - 7 1/2 feet
7 1/2 - 10 feet
10 - 15 feet
2. For purposes of determining fees, the average depth of the encroachment shall be used. However, the maximum depth shall not exceed the limitations specified in Section B. A dimensional tolerance not to exceed 12 inches may be allowed in determining the appropriate fee to be paid by persons with existing encroachments.
3. The annual fee shall be due and payable upon submittal of the application for the initial encroachment permit. Renewal fees shall be due May 31 of each year. The fee shall be considered delinquent thirty (30) days thereafter. Delinquent fees shall be established by resolution of the City Council.
4. The annual fee shall be used to defray City costs of administration, incidental costs of improvements on street ends along the oceanfront, and incidental costs to enhance public access and use of the ocean beaches. At least eighty-five (85%) percent of the fees shall be used by the City to implement the mitigation plan as required by Amendment No. 23 to the Land Use Plan of the City’s Local Coastal Program. (See Section M.)
L. Violations/Remedy.
1. The City shall, in addition to any right or remedy provided by law, have the right to do any or all of the following in the event a permittee is in violation of the provisions of this policy or any condition to the permit, or any encroachment or improvement violates the provisions of this policy:
a. Revoke the permit after giving the permittee notice and an opportunity to be heard upon a determination that there is substantial evidence to support a violation of this policy. The Public Works Director shall establish the specific procedures designed to insure that permittee receives due process of law.
b. Summarily abate any encroachment or improvement violative of this policy after giving the permittee or property owner ten (10) days’ written notice of its intention to do so in the event the permittee or property owner fails to remove the encroachment or improvement. The permittee or property owner shall pay all costs incurred by the City in summarily abating the encroachment or improvement. The determination of the Public Works Director with respect to abatement shall be final.
M. Mitigation Plan.
To mitigate any impact on beach access resulting from the encroachments, the City shall:
1. Reconstruct thirty-three unimproved street ends between 36th Street and Summit to provide additional parking and approved access in accordance with the following:
a. The reconstruction shall provide a minimum, where feasible, of two parking spaces per street end and shall proceed in substantial conformance with the standard drawing, attached as exhibit “A.”
b. The City shall use at least eighty-five percent (85%) of the fees to fund reconstruction of street ends until all have been improved. The City will use its best efforts to improve three or more street ends per year (except during the year when vertical handicapped access is constructed), and anticipates that funding will be adequate to do so.
c. West Newport street-end parking spaces shall be metered in the same manner as the West Newport Park in order to encourage public use of the spaces.
2. Within three years after Council approval of this Resolution, City shall construct a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end. City shall designate at least one other handicapped space at one of the first three street ends improved.
3. Subsequent to the reconstruction of all West Newport street ends, at least eighty-five percent (85%) of the fees generated by encroachments will be used for the construction of improvements which directly benefit the beach going public such as parking spaces, rest rooms, vertical or lateral walkways along the beach and similar projects.
(Ord. 2016-19 § 9 (Exh. A)(part), 2016)