HomeMy WebLinkAboutCC Resolution 12466 (Tideland Dock Construction Appeal)RESOLUTION NO. 12466
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 TIDELANDS PERMIT FOR DOCK
CONSTRUCTION AT 4 PORTOFINO ROAD, APN: 017-191-29
WHEREAS, the property owners of 4 Portofino Road, submitted a Tidelands Permit
application to construct a dock located on "Parcel A" (submerged lands) adjacent to their property;
and
WHEREAS, the City of San Rafael Tidelands Fill Committee ("TFC", herein) reviewed the
application for #4 Portofino Road in public meetings held on February 7, 2005, April 4, 2005, May
2, 2005, July 13, 2005, and February 22, 2006, and on each occasion the TFC noticed the time and
location of its meeting but each 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 the
applicant failed to provide such notice; and
WHEREAS, the TFC continued the matter at each meeting in 2005 for various reasons
including the request of the applicant, the need for additional information, the need for expert
opinion regarding "navigability" of the inlet and, finally, the request for more detailed drawings of
the improvements; and
WHEREAS, on February 22, 2006, the TFC conditionally approved the Tidelands Permit
for 154 Canal Street; and the Tidelands Permit for #4 Portofino Road; on March 1, 2006, Mr.
Luckham appealed his conditionally approved Tidelands Permit for 154 Canal Street, and the
conditionally approved Tidelands Permit for #4 Portofino Road; and
WHEREAS, on May 17, 2006, the TFC conditionally approved the Tidelands Permit for the
replaced dock at #8 Portofino Road; on May 23, 2006, Mr. Luckham also 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 Permits, 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 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 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 4 Portofino Road on tidelands is the
minimum necessary to achieve the purpose of the proposed work in that the proposed dock and new
gangway would replace a previously existing dock and gangway of the same general size and are the
minimum width required by 17.40.030(e) to provide access to the dock.
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 the same size and configuration and, based on review and
evaluation by Mr. Michael Cheney, registered civil engineer and marine development consultant,
would not inhibit the use of docks at 8 Portofino Road or 154 Canal and would not increase the
historic conflicts that have existed with the dock at 8 Portofino, which is in-line with the dock at 4
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.
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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 the same size
and configuration.
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
the same size, configuration and design, 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 will be installed within an existing, improved
backyard 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.
13. The projects are 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 #4 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.
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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
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F
Agenda Item No:
Meeting Date:
2
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:�
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
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Council Meeting:
Disposition:
SAN RAFAEL CITY Cv UNCIL AGENDA REPORT / Pa2e: z.
ACTION REQUIRED:
Adopt Resolutions denying appeals of conditionally approved Tidelands Permits.
Attachments: Resolutions (3)