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Home My WebLink AboutCC Resolution 12465 (Tideland Dock Construction Appeal)RESOLUTION NO. 12465 A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL MAKING CERTAIN FINDINGS OF FACT, DENYING THE APPEAL OF MR. LARRY LUCKHAM FROM THE DECISION OF THE PLANNING COMMISSION WHICH DENIED HIS APPEAL FROM THE DECISION OF THE TIDELANDS FILL COMMITTEE, AND AFFIRMING A CONDITIONALLY APPROVED TIDELAND PERMIT FOR DOCK CONSTRUCTION AT 8 PORTOFINO ROAD; APN: 017-191-28 WHEREAS, the property owners of 8 Portofino Road submitted a Tidelands Permit application to construct a replacement dock located on "Parcel A" adjacent to their property after previously reconstructing the dock in the same location without obtaining a Tidelands Permit as required by Chapter 17.10 ("Dumping, Dredging and Construction within Tidal Waterways" Ordinance [the "Tidelands Ordinance" or "TO", herein]); and WHEREAS, on May 17, 2006, the City of San Rafael Tidelands Fill Committee ("TFC", herein) reviewed the application for 8 Portofino Road in a public meeting and the TFC noticed the time and location of its meeting but the notice failed to include any statement that inaction by the TFC within 45 days of the "filing date" would result in the application being "deemed approved" and neither the applicant nor the appellant gave any such notice; and WHEREAS, on May 17, 2006, the TFC conditionally approved the Tidelands Permit for #8 Portofino Road; on May 23, 2006, Mr. Luckham appealed the conditionally approved Tidelands Permit for #8 Portofino Road; and WHEREAS, on November 13, 2007, the San Rafael Planning Commission held a duly noticed public hearing on the appeal of the conditionally approved Tidelands Permit, accepting all oral and written public testimony, all reports, documents and other evidence from the TFC hearings and the written report of the Community Development Department staff, and, after duly considering all such evidence, the Commission unanimously denied the appeals, and reaffirmed the previously approved Tidelands Permit, subject to conditions; and WHEREAS, on November 19, 2007, Mr. Lawrence Luckham appealed the decision of the Planning Commission to the City Council; and WHEREAS, on March 17, 2008, the San Rafael City Council held a duly noticed public hearing concerning the appeal of the conditionally approved Tidelands Permit, accepting all oral and written public testimony, all reports, documents and other evidence from the TFC hearings and the Planning Commission appeal hearing and the written report of the Community Development Department staff. NOW, THERFORE, the San Rafael City Council, after duly considering all the written and oral evidence presented at all of the TFC hearings, the Planning Commission appeal hearing and the appeal hearing before the Council, makes the following findings relating to the appeal of the Tidelands Permits and the re -affirmation of the Tidelands Permits themselves: 1. The evidence indicates that all of the docks in this small tidal basin bordering the appellant's and other applicants' properties, are inter -related and that the change made by the appellant has unduly and unnecessarily inhibited navigation and access to publicly owned tidelands, specifically the San Rafael Canal. The conditional permit issued to appellant as approved by the TFC and upheld by the Planning Commission, corrects this impact and results in navigability for all in the basin area. 2. "Navigability" means that the water area in question is wide or deep enough or free enough from obstructions, to be traveled by watercraft. The evidence confirms that the owners of #8 Portofino reconstructed their dock in its historical location and it does not unduly or unnecessarily inhibit navigation in the tidal basin. The evidence indicates that the appellant's dock as constructed unduly and unnecessarily inhibits navigation in the tidal basin; however, the reconfiguration of appellant's dock as depicted in the appellant's conditionally approved Tidelands Permit would not unduly or unnecessarily inhibit navigation. 3. The Tidelands Ordinance is not a part of the City's Zoning Ordinance and its purpose is not related to zoning or planning regulations of the City. 4. The evidence confirms that the appellant has never applied for nor obtained a building permit as required to construct improvements authorized by a Tidelands Permit. 5. The encroachment of the proposed dock at 8 Portofino on tidelands is the minimum necessary to achieve the purpose of the proposed work in that the proposed dock replaced a previously existing dock of the same approximate size and configuration (an additional 32 square feet was added to improve floatation). 6. The proposed fill, excavation or construction will not unduly and unnecessarily inhibit navigation, or access to publicly owned tidelands, in that the proposed dock would replace a previously existing dock structure of approximately the same size and configuration and would not increase the historic conflicts that have existed with the dock at 4 Portofino, which is in-line with the dock at 8 Portofino. 7. The proposed fill, excavation or construction will not cause, or increase the likelihood of, water pollution in that all construction must meet the permit requirements of the Regional Water Quality Control Board and the Corps of Engineers, which address water pollution. 2 8. The proposed fill, excavation or construction will not destroy, or accelerate the destruction of habitats essential to species of fish, shellfish and other wildlife of substantial public benefit in that the proposed dock would replace a previously existing dock structure of approximately the same size and since there has been historic boating activity in this man-made inlet. 9. The proposed fill, excavation or construction will not diminish the scenic beauty of the shoreline in a manner which will impede future construction of parks, boat harbors and recreation facilities in that the proposed dock would replace a previously existing dock structure of approximately the same size and the inlet is privately owned by adjacent residents and not part of or adjacent to a boat harbor or recreation facility. 10. The proposed fill, excavation or construction will not create a safety hazard in connection with settlement of fill or earthquakes in that the dock is for private recreational use by a single-family dwelling and no buildings subject to seismic safety construction codes are proposed. 11. The proposed fill, excavation or construction will not diminish natural waterways by siltation, sedimentation or bank erosion in that no work will occur on exposed soil since all dock components are floating and the gangway mooring within an existing, improved backyard was not altered, and the proposed dock will not alter existing drainage or siltation patterns. 12. The proposal is in substantial harmony with General Plan 2020, specifically Air and Water Quality Policy AW -7, in that the project will comply with state and federal standards for water quality, are determined to be exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15303(a) of the CEQA Guidelines which exempts additions to existing structures less than 10,000 square feet. AND FURTHER, BE IT RESOLVED that the City Council of the City of San Rafael, based upon these findings, the evidence and the entire record of this matter, hereby denies Mr. Luckham's appeals and reaffirms the decision of the Planning Commission and the TFC in conditionally approving the Tidelands Permit for #8 Portofino Road, subject to the following conditions: Conditions of Approval A. The applicant shall submit construction drawings accurately showing the location and design of all proposed dock improvements and new pilings. B. All new dock construction shall meet the requirements of San Rafael Municipal Code Section 17.40.030 -- Dock Safety and Maintenance Standards for Vessels in Marinas and Private Docks. A permit from the Building Division is required for the construction of the docks, and an electrical permit is required for electrical work on the docks. 3 C. All applicants shall comply with any and all regulations of, and shall obtain any and all necessary permits from, all applicable regulatory agencies of the local, state and federal governments including but not limited to, the U.S. Army Corps of Engineers (permission for dock construction under the Nationwide Permit 3), the San Francisco Regional Water Quality Control Board (a Section 401 water quality certification for dock construction), a building permit from the City's Community Development Department. D. The applicants shall pay the Tidelands Permit fee of $500 and any additional fees for building permits and any other required permits. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Monday, the 7`" day of April, 2008, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro None None :l • <. ESTHER carr cF . Agenda Item No: 2 n. Meeting Date: April 7, 2008 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Community Development Department/City Attorney Prepared by: Gus Guinan Assistant City Attorney City Manager Approval:�N SUBJECT: Resolutions (3) Denying the Appeals of Three Conditionally Approved Tidelands Permits For Construction/Modification of Existing Docks; APN's 017-191-28; 017- 191-29; 017-191-30; Larry Luckham, Appellant; File No. AP06-001 (CDD -CA) RECOMMENDATION: Adopt the Resolutions Making Certain Findings, Denying the Appeals and Reaffirming the Conditional Approval of the Three Tidelands Permits BACKGROUND: The applicants for the three Tidelands Permits at issue in this matter all own property adjacent to a small tidal basin next to the San Rafael Canal; each property owner applied for a Tidelands Permit for the construction/modification of boat docks in the tidal basin abutting their property. After numerous meetings in 2005 and early 2006, the Tidelands Fill Committee conditionally approved Tidelands Permits for all three applicants, including the Appellant. The Appellant, however, appealed the grant of his conditionally approved permit and those of his neighbors. The Planning Commission denied the appeals and the Appellant appealed the decision to the City Council. At its last meeting (March 17, 2008), the City Council heard the appeals. After reviewing all of the staff reports, letters, documents of the Tidelands Fill Committee and Planning Commission meetings, after hearing additional testimony from the Appellant and his attorney at the appeal hearing and after reviewing additional evidence at the appeal hearing, the City Council unanimously denied the appeals and directed staff to prepare Resolutions denying the appeals. ANALYSIS: The three Resolutions attached contain findings of fact based upon the documentary and testimonial evidence in the record of this matter, and, based upon those facts and all the evidence in the record, the Resolutions, as direct directed by the Council, deny the appeals of Mr. Luckham and confirm the conditional approval of the Tidelands Permits for 154 Canal Street (APN 017-191-30), #4 Portofino Road (APN 017-191-29 and #8 Portofino Road (APN 017-191-28). FOR CITY CLERK ONLY File No.: Council Meeting: Disposition: SAN RAFAEL CITY WUNCIL AGENDA REPORT / Paue: z ACTION REQUIRED: Adopt Resolutions denying appeals of conditionally approved Tidelands Permits. Attachments: Resolutions (3)