Proposal to retain East Ocean Front beach encroachments rejected by CCC; on October 8 City Council will consider submitting proposal to add Transfer of Development Rights provisions to LCP
Why We’re Watching
Minor LCP clean-up package
Major LCP clean-up package
Peninsula Point Oceanfront Encroachment Program
Accessory Dwelling Unit amendment
Setback Map adjustments
City/CCC Jurisdictional Boundary Change Request
Categorical Exclusion Order modification
Adding Newport Coast to the LCP
Port Master Plan
Balboa Village Parking Management District
Balboa Area Residential Permit Parking Program
Development standards for low-lying areas
Transfer of development rights
Other Coastal Act related Watch List items
Latest News: The package of major LCP amendment requests authorized to be submitted to the California Coastal Commission by City Council Resolution No. 2017-56, including relaxed height restrictions, a new power for the the Community Development Director to waive the public hearing requirement for CDP applications that he deems to involve “minor” development, and the City’s request to be able to grant variances from and modifications to the development standards certified by the CCC, have now been approved with the exception of a request to weaken protections against shoreline armoring. The City Council accepted the amended language at its February 12, 2019, meeting, with final adoption on February 26 and certification by the CCC on April 11. Meanwhile, as Item 13 on its January 22, 2019, agenda, the Council accepted the revisions to its Accessory Dwelling Units policies and regulations approved by the Coastal Commission on October 12, 2018. And on April 9 the Council approved submitting to the Coastal Commission a new amendment request to eliminate the off-street parking requirements for many businesses in Balboa Village. The City’s request to allow private encroachments onto the beach in the East Ocean Front area of Peninsula Point (near the wedge) was unanimously rejected at the Commission’s July 2019 meeting. Meanwhile, the City is advancing a proposal to allow Transfer of Development Rights from one property to another. On August 22, 2019, the Planning Commission recommended the City Council submit that proposal to the Coastal Commission for consideration.
Background: The Newport Beach Local Coastal Program sets policies and detailed rules for issuing Coastal Development Permits, which are the main mechanism for ensuring activities within the Coastal Zone of the City comply with the California Coastal Act.
The LCP consists of two main parts:
- The Newport Beach Coastal Land Use Plan, a CCC-certified general policy document last comprehensively adopted and amended by City Council Resolution No. 2009-53.
- The Implementation Plan, a CCC-certified set of detailed regulations made part of the Newport Beach Municipal Code by City Council Ordinance No. 2016-19.
- The certified IP, Title 21 of the NBMC, is a modified version of the original proposal submitted to the CCC by the City Council with Resolution No. 2015-99 on November 10, 2015.
- The Council’s proposal was heard by the CCC at its September 8, 2016, meeting in Newport Beach (Item 21c).
- The modifications suggested by the CCC on September 8 and ultimately accepted by the City Council can be seen in the report for Item 11 from the Council’s November 7, 2016, meeting.
There is also:
- A Coastal Zone Boundary Map and a Post-LCP Certification Permit and Appeal Jurisdiction Map produced and approved by the CCC, which delineate the areas within which the CCC is the original issuer of CDP’s and the areas within which those approved by the City can be appealed to the CCC.
- The Implementation Plan review process included minor adjustments to the City’s Coastal Zone Boundary, approved by the CCC at its April 14, 2016, meeting (Item 11a).
- The current appeals map was approved by the CCC at its March 8, 2017, meeting (Item 21a).
- A Categorical Exclusion Order CE-5-NPB-16-1, adopted by the CCC on November 4, 2016, (Item 16a) which exempts certain kinds of residential construction in certain areas from CDP requirements. The City has a FAQ explaining the “Cat Ex”, as well as a list of development that has been deemed eligible for it.
Changes to any of the above require approval by the CCC, and theory, notices of proposed changes to the LCP are available on the City website as required by Sections 13552(a) and 13515 of Title 14 of the California Code of Regulations (in Division 5.5, implementing the Coastal Act).
Project Overview: Effective January 30, 2017, some 45 years after passage of the voter-enacted precursor to California’s Coastal Act (1972’s Proposition 20), the City of Newport Beach finally, and for the first time, obtained a fully certified Local Coastal Program authorizing it to process and issue such permits. But the ink was barely dry on the LCP, when it became apparent a raft of seemingly staff-generated amendments was being rushed to approval with very little public awareness. Proposed changes to the LCP are sometimes, but not always or in any systematic way, noticed on the City’s Implementation Plan page.
Why We’re Watching: SPON is very concerned both with the process and with the substance of the proposed amendments. The process is especially difficult to follow since their seems to be negotiation between City and Coastal Commission staff, out of the public eye. In addition, because the number of requests is large, trying to keep track of them, and their status, is difficult. In all cases, if a City proposal is amended by the Coastal Commission at their hearing, possibly as a result of the private negotiations, the Council would have to agree to the CCC’s amendments or abandon the proposals.
Current Proposals: The number of changes that have been proposed since certification of the LCP in 2017 is so large it is difficult to keep track, but the current set of City proposals and their status is believed to be as follows:
- “Minor” LCP “clean-up” package :
- Originally consisted of nine unrelated insertions and deletions.
- Submitted to the CCC by City Council Resolution No. 2017-45 on July 11, 2017, after removal of a controversial staff proposal to exempt “planned communities” from the long-standing 35-foot height limitation in the “Shoreline Height Limitation Zone” from the foot of the coastal bluffs to the sea.
- Apparently on advice of Coastal Commission staff, three of the proposals were resubmitted as “major” LCP amendments (see next item) on September 12, 2017.
- Coastal staff placed approval of the remaining proposals as Item Th11a on the Commission’s November 9, 2017, agenda, but was granted up to a year to complete processing, including considering if more of the “minor” proposals were, in fact, “major” amendments.
- The parts culled out for the November 2017 meeting were approved, with modified recommendations, as Item 22a at the Commission’s July 11, 2018, meeting, contingent upon City acceptance of the changes. The City Council introduced the ordinance making the changes at its September 25 meeting (Item 19). The most significant change as a result of these “clean ups” is that the Community Development Director will be able to waive the public hearing requirement for CDP’s for what he deems to be “minor” development. However, anyone objecting to that decision can ask for the public hearing to be held. As a result of confusion about the CCC-recommended changes, the ordinance implement the “minor” revisions had to be reintroduced by the Council on October 23 (Item 11), and was adopted by the Council on November 13 (Item 3). The Coastal Commission certified the adequacy of the City’s action on December 12, 2018 (Item 24c).
Note: Because of rules governing how many LCP amendment requests can be submitted in a calendar year, the following three items that had previously been submitted to the CCC separately (“Clean-up,” “Encroachments” and “ADUs”) were resubmitted as a single “major” LCP amendment request with City Council Resolution No. 2017-56. The package was deemed complete on May 3, 2018.
Item F9a on the Coastal Commission’s June 8, 2018, agenda is a request to defer final action by up to a year on the following package of changes in order to give Coastal staff time to better evaluate the changes:
- “Major” LCP “clean-up” package
- Three of the items removed from the earlier “minor” clean-up package of Resolution No. 2017-45 were re-submitted as part of City Council Resolution No. 2017-56 on September 12, 2017.
- The proposals named in the latter resolution deal with:
- Rules regarding shoreline protective devices
- Allowing a 75% expansion of nonconforming residential structures
- Establishing rules for deviations from the development standards via variances and modifications
- This package of proposals was approved, with modifications, by the Coastal Commission as Item 24b when it met in Newport Beach on December 12, 2018
- As Item 15 at its February 12, 2019, meeting, the City Council adopted a resolution modifying the Coastal Land Use Plan as approved by the CCC and introduced an ordinance accepting and incorporating the Implementation Plan changes.
- Final adoption occurred as Item 5 on the February 26 consent calendar.
- The Coastal Commission certified the changes on April 11.
- Peninsula Point Oceanfront Encroachment Program
- This is a proposal to allow the yards of private homes abutting the beach from Balboa Village to the Wedge to legally encroach out onto the beach, similar to what is currently allowed in West Newport.
- The proposal was formally submitted to the Coastal Commission by City Council Resolution No. 2017-50 on July 25, 2017, and then resubmitted as part of Resolution No. 2017-56 on September 12, 2017.
- This request was considered as Item 26a at the Coastal Commission’s July 10, 2019, meeting in San Luis Obispo, where it was unanimously rejected.
- Instead, the City will need to see the existing encroachments are removed.
- Accessory Dwelling Unit amendment
- This is a proposal to amend the LCP Implementation to align with changes recently made to corresponding sections of the Zoning Code in response to a new state law.
- The proposal was formally submitted to the Coastal Commission by City Council Resolution No. 2017-51 on July 25, 2017, and then resubmitted as part of Resolution No. 2017-56 on September 12, 2017.
- This request was scheduled for consideration as Item 15b on October 12, 2018, CCC agenda
- While the original request was pending, additional changes were made to state law, and so on September 11, 2018, as part of Item 12, the City Council adopted Resolution No. 2018-65, authorizing City staff to submit further changes to the ADU regulations in the LCP. However, those changes were intended to mirror ones being made to the City Zoning Code by Ordinance No. 2018-14, and when that ordinance was presented for second reading on September 25, staff recommended not adopting it until further review could be completed. Since it may not match the changes to the Zoning Code, one might guess the new request to the CCC has been “recalled.”
- When the CCC staff report for October 12, 2018 (Item 15b), was posted, it magically included most of the changes proposed by Council Resolution No. 2018-65 (without acknowledging those had been formally submitted). That hybrid amendment (which may or may not agree with the City’s final Zoning Code changes) was approved by the CCC and is awaiting acceptance by the City Council.
- The Council accepted the modified policies and recommendations as Item 13 on its January 22, 2019, agenda, with final adoption of February 12. The Coastal Commission certified the amendments on April 11.
- Setback Map adjustments :
- On a separate track from the other “minor” amendments to the LCP, the City has pending a request to correct what it regards as “errors” in the setback maps that are included as exhibits in the LCP-IP. This mirrors corrections previously made to the identical maps in the Zoning Code, and will affect eight inland parcels on Lido Isle.
- Per the CCC staff report, the origin of the item is as follows: “On July 6, 2017, the Newport Beach Planning Commission conducted a public hearing and adopted Planning Commission Resolution No. 2062. The Newport Beach City Council held a public hearing on September 12, 2017 [Item 23] and passed City Council Resolution No. 2017-59 authorizing City staff to submit the LCP amendment to the Coastal Commission for certification. “
- The request was heard and approved by the Coastal Commission on September 14, 2018.
Additional requests from the City submitted to the CCC:
- City/CCC Jurisdictional Boundary Change Request
- According to an email from Newport Beach Planning Manager Patrick Alford, the City has asked the Coastal Commission’s mapping unit to redraw the appeal boundary to move five properties from Coastal Commission permit jurisdiction to City jurisdiction. That is, to allow the City to approve permits for development on those properties, subject to appeal to the Coastal Commission.
- See what appears to the CCC’s official “Post LCP Certification Permit and Appeal Jurisdiction” map on the LCP Address Lookup & Maps page.
- The City’s understanding of the boundary locations can be seen more clearly using, under “Layers,” the “Community Development Layers“…”Local Coast Program“…”Permit and Appeal Jurisdiction” options in its zoomable online GIS Map Viewer. The areas of original CCC jurisdiction are those in the hatched “Permit Jurisdiction Area,” seaward of the shaded “Appeal Jurisdiction” area (where City approvals can be appealed to the CCC).
- The City’s mapping of tidelands can be found under “Public Works Layers“…”Harbor Resources Layers“…”Tidelands Survey“.
- The five properties the City asked to take jurisdiction over were the Newport Harbor Yacht Club, Balboa Bay Club, Sea Scout Base, OC Harbor Patrol/USCG station and Newport Aquatic Center.
- It is unclear when or if this request was authorized by the City Council or how it was noticed to the public.
- In its original proposal for the Implementation Program, submitted to the CCC with Resolution No. 2015-99, the City had offered its own understanding of the appeals map, as shown on pages 472, 473 and 474, as well as a map of its Public Trust Lands, on page 476. Those maps did not appear to include the presently requested exclusions.
- The Coastal Commission was scheduled to hear the request as Item 10a on its Friday May 11, 2018, agenda. According to the agenda, such changes can be allowed “pursuant to Coastal Act Section 30613.” Ultimately, the item was postponed without a staff report being posted.
- The request reappeared, with full staff report and supporting documentation, as Item 23a on the Commission’s July 11 agenda.
- CCC staff recommended approving the Sea Scout Base request, rejecting the Aquatic Center request and retaining control of the sandy beaches at the Balboa Bay Club, the Coast Guard/Harbor Patrol Station and the Newport Harbor Yacht Club.
- The Coastal Commission rejected pleas from the City’s lobbyist to take control of the beaches, and approved the transfers of jurisdiction as recommended by their staff.
- However, the Commission appears to have ceded permitting authority for the bulkheads to the City. A later “clarification” from CCC staff indicates the Commission transferred jurisdiction over the “land” to the seaward edge of bulkheads, but not to the bulkheads themselves (since they are subject to wave action).
- Categorical Exclusion Order modification
- Item 6 on the City Council’s May 8 Consent Calendar was an unexpected request to amend the City’s “Categorical Exclusion Order.”
- The proposed amendment (the details of which were, curiously, not shown) would exempt homes with floor area ratios of 2 on lots of 4,000 square feet and less from the need to apply for a Coastal Development Permit. The current limit for such homes is 1.5.
- The matter had not previously been discussed.
- The change was unanimously approved as part of the CCC’s August 10, 2018, agenda, where it was Item F21a, and accepted by the City Council at their September 11, 2018, meeting.
- Adding Newport Coast to the LCP
- The Coastal Zone portion of Newport Coast has its own LCP, created by the County of Orange prior to that area’s annexation by the City and still administered by them.
- As Item 12 on its July 25, 2017, agenda, the City Council directed City staff to begin work on adding Newport Coast to the City’s LCP.
- The proposal is still a City staff level effort and nothing has been formally presented to the CCC.
- This could prove very problematic considering the large quantity of unbuilt allocations. According to the July 25 staff report, that includes 182 homes, 1,046 hotel rooms and 75,933 square feet of commercial development.
- SPON is, therefore, watching with concern.
- Port Master Plan
- One of the City’s most recent efforts (but currently on “pause,” or abandoned altogether) was (without CCC concurrence or involvement) to promote legislation amending the Coastal Act to give the City the authority to create a Port Master Plan, described by the City as “an LCP for the water.”
- This would purportedly allow the City to approve permits for construction and activities in the water areas of the harbor, which all currently require approval by the Coastal Commission.
- Details remain sketchy, but if this ever happened, it would presumably require changes to the LCP to incorporate the Port Master Plan.
- Balboa Village Parking Management Overlay District
- This is a proposal to remove most of the requirement for businesses in Balboa Village to provide off-street parking
- In 2015, with Ordinance No. 2014-20, the City Council made changes to the Zoning Code (Newport Beach Municipal Code Title 20) creating the overlay district.
- However, and despite the City apparently not thinking such action needed Coastal Commission approval, the City was at that time negotiating its LCP Implementation Plan, which generally shadows the Zoning Code, and the Coastal Commission deleted the corresponding language from it (see CCC suggested modifications, as presented at the special November 7, 2016, City Council meeting).
- A major Coastal Act concern is that marine-related and visitor-attracting businesses appear to be treated less favorably than others.
- Pursuant to Section 21.28.030.D of the IP, creation of the parking overlay district will require an amendment to the IP.
- Although we believe City staff has been in contact with CCC staff about this, we have been unable to find a Council resolution authorizing submission of a formal request to the Coastal Commission.
- On December 20, 2018, City staff posted an announcement that on February 12, 2019, it will be asking the City Council for permission to submit to the Coastal Commission a request to add language to the Local Coastal Program creating the Balboa Village Parking Management Overlay District. The proposed language appears to be identical to that added to the Zoning Code in 2015 and rejected by the Coastal Commission in 2016.
- The City re-noticed the matter for a hearing before the Planning Commission on February 21, 2019, and on April 9, 2019 the City Council approved submitting the amendments to the Coastal Commission.
- Balboa Area Residential Permit Parking Program
- Closely related to the Balboa Village Parking Management District request, this is a proposal to initiate a residents-only parking program (or “RP3“) in the area west of Balboa Village to cope with the increased demand expected from the Parking Management District.
- Prior to having a certified LCP, and the local permit approval authority that goes with it, the City Council, pursuant to Item 14 at the Council’s October 27, 2015, meeting, directed City staff to file an application for a permit parking Coastal Development Permit with the Coastal Commission, but the application seems never to have gone anywhere.
- Now that the City has a fully certified LCP, it claims it can, consistent with the LCP, approve the CDP itself — although it believes that approval would likely be appealed to the Coastal Commission.
- Coastal Commission staff appears to disagree with this, and believes the creation of new Preferential Parking Zones anywhere within the City’s Coastal Zone would first require an amendment to the LCP, which would have to be approved by the CCC.
- Indeed, City-proposed language that would have allowed approval of CDP’s for PPZ’s was not included in the certified LCP (see the CCC modifications as presented and accepted by the Council at a special November 7, 2016, meeting).
- See also page 12 of the CCC staff report regarding their Post LCP Certification Permit and Appeal Jurisdiction Map, Item W21a at the CCC’s March 8, 2017, meeting, in which the CCC acceded to allowing parts of the interiors of Balboa and Lido Islands to be placed outside the CCC appeal area based, in part, on their understanding that restrictive parking programs could not be created there without an amendment to the LCP.
- Before considering approving a CDP on its own, City staff attempted to re-assess residents’ interest in the program at a community meeting held at Marina Park on May 7, 2018. Based on the mixed results obtained there (mostly against the proposal), City staff promised to conduct a new mailed survey.
- Based on the new survey (which showed close to 50% opposition), and the likelihood of appeal and rejection by the CCC, City staff announced that its plans to establish an “RP3” have been permanently shelved.
- Development standards for low-lying areas
- The tentative agenda provided to the Planning Commission at its January 31, 2019, meeting indicated that at its February 26 meeting the City Council will be presented with a proposal to initiate LCP and Zoning Code amendments creating new development standards for “parking and accessory structures in low lying areas.”
- This appears to be a follow-up to the sea level rise and flood adaptation concerns presented to the Council at its January 22, 2019, study session (see next to last slide of Item SS4 PowerPoint presentation).
- The staff work necessary to prepare the amendment was unanimously initiated by the City Council as part of agenda Item 16 on March 26, 2019.
- Transfer of development rights
- On August 8, 2019, notice was posted that City staff is proposing amending the LCP “to include a policy and regulations pertaining to the transfer of development rights in a manner consistent with and allowed by the Newport Beach General Plan.”
- See the Notice of Availability for the details of the proposed new language.
- This appears to be intended to allow the City Council to modify the CCC-approved land use plan without CCC oversight other than through the Coastal Development Permit appeal process, which is available in only a limited portion of the Coastal Zone.
- At an August 22 hearing, the Planning Commission recommended the City Council submit the proposal to the City Council. See the Item 5 staff report and PowerPoint.
- The City Council is scheduled to vote on the proposal on October 8.