HomeMy WebLinkAboutCC Resolution 12467 (Tideland Dock Construction Appeal)RESOLUTION NO. 12467
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 154 CANAL STREET; APN: 017-191-30
WHEREAS, the appellant, the property owner of 154 Canal Street, submitted a Tidelands
Permit application to construct a replacement dock located on "Parcel A" (submerged lands) adjacent
to their property and the City's Department of Public Works, contrary to Chapter 17.10 ("Dumping,
Dredging and Construction within Tidal Waterways" Ordinance [the "Tidelands Ordinance" or
"TO", herein]), erroneously issued a Tidelands Permit to appellant to construct a replacement dock;
and
WHEREAS, upon discovering that the appellant's permit application did not adequately
describe the proposed work and that the permit could only be issued by the Tidelands Fill Committee
("TFC" hearing), DPW revoked the illegally granted permit and directed the appellant to submit a
new permit application for consideration by the TFC in order to legalize appellant's already -
constructed improvements; and
WHEREAS, the TFC reviewed the application for 154 Canal Street 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 given the constructed improvements 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 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. Lamy 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. There is insufficient evidence to support any finding that the TFC failed to take action
within forty-five (45) days after the "filing date"; rather, the evidence indicates that the TFC
continued its hearings on each occasion in order to obtain additional information necessary to render
a decision on the permit applications, which we find to comply with the provisions of the Tidelands
Ordinance; the "filing date" was not achieved until all of this information was submitted to the TFC
so that it could make an informed decision on the applications; the evidence does not support the
appellant's contention that the permit was "deemed approved".
2. The evidence indicates that the TFC issued notices of the time and place of each of its
meetings regarding these permit applications; however, the evidence clearly indicates that none of
these notices contained any statement or warning that the TFC's failure to take action within a certain
timeframe of the "filing date" would result in the permits being "deemed approved".
3. There is no evidence that the appellant gave any property owner notice of any of the
TFC meetings or of the fact that the TFC's failure to act within a certain timeframe could possibly
result in the permits being "deemed approved".
4. 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.
5. "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.
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6. 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.
7. 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.
8. The encroachment of the proposed dock at 154 Canal Street on tidelands is the
minimum necessary to achieve the purpose of the proposed work in that the proposed dock and new
gangways would replace a previously existing dock and gangway of the same general size and the
gangways are the minimum width required by 17.40.030(e) to provide access to the two docks.
9. As proposed by appellant, the proposed fill, excavation or construction will unduly
and unnecessarily inhibit navigation, or access to publicly owned tidelands, in that the proposed
westerly finger of the resulting Berth 1 extends approximately 11 feet further into the inlet than the
previous dock structure, the location of the piling extends 9.5 feet further into the inlet, and the
entire dock structure has shifted westerly by approximately 3 feet from its historic location, which
have reduced the navigability into a potential replacement dock at 4 Portofino based on review and
evaluation by Mr. Michael Cheney, registered civil engineer and marine development consultant.
10. 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.
11. 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 and gangways 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.
12. 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.
13. 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.
14. 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.
15. 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.
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16. 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 154 Canal Street, subject to the following
conditions:
A. Due to its impact on navigability on a potential replacement dock at 4 Portofino Road, the
finger westerly of the new Berth I must be shortened by 11 feet to its historical length. The
applicant must revise the dock layout and resubmit a drawing for approval. If a revised
drawing is not submitted to the City within 30 days, the matter shall be turned over to Code
Enforcement to initiate proceedings to remove the I 1 -foot extension.
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.
C. Applicant 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. Applicant 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`h 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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ESTHER
C. R
CITY OF
n'��M 1 "L. -
Agenda Item No:
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:
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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)
I "TR911 UT -1ur Rai _V V e
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 C%jUNCIL AGENDA REPORT / Page: z.
ACTION REQUIRED:
Adopt Resolutions denying appeals of conditionally approved Tidelands Permits.
Attachments: Resolutions (3)