CDP Morehart 2808 Lafayette Avenue Newport Beach

Applicants property Rhine Channel Aerial Photograph from City post-dredging report, Feburary 23, 2012

The bulkhead is necessary to protect existing structures on the property The structure is in danger from the loss of lateral support from the failed wharf structure. The danger to the structure has been increased by the adjacent dredging of the Rhine Channel to a depth of -19 MLLW, the deepest in the channel. The Applicant’s property is 60 feet wide and is the only property, public or private, on the 1600 feet of both sides of the Rhine Channel without a bulkhead.

Structure on wharf approved by Commission in 1976, collapsed and removed in Failed structure Remaining structure Shear line

The wharf structure gave support to the remaining buildings. The wharf and upper deck sheared from the Entire frontage of The existing building in two locations, at the first and second level. There was also a partial connection at the third level.

Dredging plan from City post-dredging report, Feburary 23, 2012 Depth = -19 MLLW Applicant’s property

Exhibit K Approx. location of bulkhead Existing rubble

Special Conditions for Access Easement No. 2 – Grant Easement over deck at top of bulkhead for 24 hour public access with no use by property owner. No. 3 – Property owner to maintain all necessary public access improvements. No. 4 – Property owner to construct all necessary public access improvements. No. 5 – Property owner to provide public access signage plan.

Findings on access No findings are proposed of any reasonable relationship between the impact of the seawall on public access and the need for an easement. The easement exacted is more than 10% of the usable land The easement is so broad as to be the equivalent of fee title. There is no rough proportionality between the impact of the project and the impact of the access easement.

Staff recommendation: There was a public access easement on the property previously and the physical access improvement still exists but the Applicant’s project will not be reconnected to the adjoining property. The facts: The physical structure for a possible easement sought by the City collapsed with the wharf. No access easement was ever created. No access walkway was ever used by the public. The prior access requirement has expired.

The City of Newport Beach in its’ approval required that a pier extend across the entire bayside of the property and that the owner grant an easement for public access. Thus the owner complied by providing public access on site on a pier/boardwalk along the channel. The pier appears to still exist to this day, but the structure adjacent to it failed and collapsed into the channel. Staff Report, p No pier exists today. There is only the boat dock float. The pier or wharf on which the City’s 1976 proposed walkway was to be located was part of the wharf that failed.

Boat mooring float on Applicant’s property

City Planning Commission minutes of April 1, 1976 Enlargement of Exhibit E

Enlargement of Exhibit G, page 2

Construction plans for wharf deck Enlargement of Exhibit H

City proposed public walkway located on failed wharf. Property lines in red Boat mooring float Enlargement of Exhibit E

City’s Contingent Offer for Public Access, recorded February 1, 1977 Enlargement of Exhibit I, page 1

City’s Contingent Offer for Public Access, recorded February 1, 1977 Enlargement of Exhibit I, page 2

Staff recommendation: An easement is appropriate because the bulkhead will be on public tidelands. The facts: The tidelands are not under the public trust. The Applicant owns the tidelands portion of the property. Even if in tideland trust property, a bulkhead to protect an existing building is a proper use.

Enlargement of Exhibit J Applicant’s Property, with boundaries in red US Bulkehad Line US Pierhead Line

Enlargement of Exhibit L

Approximation of boundaries of 1892 Grant to James McFadden

1907 Subdivision Map for Lancaster ‘s Addition Applicant owns Lots 5 & 6, Block Property Owner is Newport Bay Dredging Co. First use of the term “The Rhine”

City GIS Map identifying character of property within Newport Bay

Applicant’s Property The Staff’s description of the Rhine Channel as subject to the public trust (with which the Applicant disagrees) is shown on the City’s maps relied upon by the Staff as bounded by the US bulkhead line. The Applicant’s proposed bulkhead is 30 feet behind the US bulkhead line. Rhine Channel Enlargement of Staff Addendum #2, Exhibit 7, page 5 Location of proposed bulkhead 30 feet behind US Bulkhead Line

Text of California Public Resources Code

All of the light blue areas are designated as tidelands or submerged lands. The Rhine Channel is designated not as tidelands or submerged lands but only as w waterway dedicated or reserved for same. Pages 6 and 7 of Addendum Exhibit #7 refer to the public trust interest only the “tidelands and submerged lands” which are clearly shown in blue. Staff Addendum #2, Exhibit 7, page 5

Portion of Mitigated Negative Declaration, Rhine Channel Contaminiated Sediment Cleanup, Staff Addendum #2, Exhibit 7, pages 6-7.

from State Lands Commission, December 11, 2012 Colin Connor is the Assistant Chief of the Land Management Division of the State Lands Commission and is responsible for boundary issues involving tidelands.

Approximation of bulkhead location

Special Condition No. 9 is not supported by either Section or Section allows protection of existing structures in danger from erosion which minimize the impact on shoreline sand supply. Section 30253(b) prohibits new development from requiring new protective devices “that substantially alter natural landforms along bluffs and cliffs.”

Public Resources Code Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine structures causing water stagnation contributing to pollution problems and fish kills should be phased out or upgraded where feasible.

Public Resources Code 30253(b) b) Assure stability and structural integrity, and neither create no contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that substantially alter natural landforms along bluffs and cliffs.

Staff Report p. 21 Staff Report p. 18 (b) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that substantially alter natural landforms along bluffs and cliffs. Section (b) including omitted language

The Applicant asks that the Commission amend the motion to approve to remove Special Condition Nos. 2, 3, 4, 5, and 9.