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Home My WebLink About14 - Planning and Land Use Entitlements for Harbor Pointe Senior Living, Located at 101 Bayview Place (PA2015-210) - Additional CorrespondenceReceived After Agenda Printed February 12, 2019 Item No. 14 From: City Clerk's Office Sent: Monday, February 11, 2019 5:29 PM To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Kitayama Project Concern From: Zdeba, Benjamin Sent: Monday, February 11, 2019 5:29:05 PM (UTC -08:00) Pacific Time (US & Canada) To: City Clerk's Office Subject: FW: Kitayama Project Concern Please see below regarding Item No. 14 on tomorrow's Council agenda. BENJAMIN M. ZDEBA, AICP Community Development Department Associate Planner bzdeba@newportbeachca.gov 949-644-3253 -----Original Message ----- From: Lyle Brakob <Imbrakob@cox.net> Sent: Monday, February 11, 2019 3:08 PM To: CityCouncil@newportbeach.gov Cc: Zdeba, Benjamin <bzdeba@newportbeachca.gov>; Kirk Snyder <kdsnyder@cox.net>; Jeannie Burzan <jjburzan@gmail.com>; plampmanl@mac.com; petemarcek@hotmail.com Subject: Kitayama Project Concern > Dear Mayor Dixon, Pro Tem O'Neal and Council Members Avery, Brenner, Duffy, Herdman and Muldoon > We have been opposed to the proposed project from the start—many reasons too numerous to mention again here. > At the Council Meeting tomorrow evening we want the legality to possibly rezone Bayview Area 5 by the city addressed. We believe such a action is not allowed based on City development plans and would violate our property rights. > Respectfully, > Lyle and Margaret Brakob 6 Baycrest Court 949 769 1558 > Sent from my iPhone 1 February 12, 2019 Agenda Item No. 14 From: Zdeba, Beniamin To: City Clerk"s Office Cc: Lipman, Tiffany Subject: FW: PA2015-210 for Harbor Pointe Senior Living - City Council Hearing February 12 Date: Thursday, February 07, 2019 4:42:04 PM Attachments: image001.ong im Please see the email correspondence received below regarding the Harbor Pointe Senior Living project before Council on February 12. Thanks, Ben Z. BENJAMIN M. ZDEBA, AICP Community Development Department Associate Planner bzdebaOnewoortbeachca.00v 949-644-3253 From: Richard Sidkoff <rsidkoff@gmail.com> Sent: Monday, February 04, 2019 7:34 PM To: Zdeba, Benjamin <bzdeba@newportbeachca.gov> Subject: Re: PA2015-210 for Harbor Pointe Senior Living - City Council Hearing February 12 Thank you very much for the advance notice. I will be out of town and unable to attend the meeting. Please accept my continuing objection to the Harbor Point Center. I moved to my home with existing surroundings which this Rezoning and project would completely change. Ask yourself please would you want this facility built next door to your house? Because I am sure your answer is no, then please vote No to not approve the construction of this project. Thankyou Sincerely Richard Sidkoff 37 Baycrest Court Newport Beach On Feb 4, 2019, at 4:58 PM, Zdeba, Benjamin <bzdeba(@newportbeachca.gov> wrote: Good evening, This email provides additional courtesy notice that the Harbor Pointe Senior Living project will be on the agenda at the upcoming City Council meeting on Tuesday, February 12. Please be advised, the meeting will begin at 7 p.m. The public hearing notice, which was mailed to property owners within a 300 -foot radius of the project site, posted on the project site, and published in the newspaper, is attached for your reference. The agenda packet, including the staff report, will be posted online here by the end of the week: https://newportbeach.legistar.com/Calendar.aslx As a reminder, if you submitted a written comment in response to the Notice of Availability of the Draft Environmental Impact Report, you will find a response to your comment posted here: https://www.newportbeachca.gov/cepa You may also provide additional written public comments at any time. If you have any questions, please contact me. Once again, thank you for taking the time to participate in the public process. Have a great night. Sincerely, Ben Z. <Image003.Jpg>BENJAMIN M. ZDEBA, AICP Community Development Department Associate Planner bzdeba(cDnewportbeachca. aov 949-644-3253 CITY OF NEWPORT BEACH 100 Civic Center Drive, First Floor Bay B, Newport Beach, California 92660 I newportbeachca.gov <Harbor Pointe Senior Living.pdf5 SCHt.1r ANN I ROSENBERG A t t o r n e y s a t L a w Received After Agenda Printed February 12, 2019 Item No. 14 R E C.,F-:- I \ / E D 1019 FEB I I PM 1: 3 C OFFICE OF TI E CITY y(� LERi4 Senders Email: 01 ;v T T Orr I�;EAVP �Ko Ar(_+SchumannRosenberg.com December 3, 2018 VIA FEDERAL EXPRESS & EMAIL bzdeba@newportbeachca.gov City of Newport Beach Community Development Department Attention: Mr. Benjamin Zdeba, AICP 100 Civic Center Drive Newport Beach, CA 92660 Re: Harbor Pointe Residential Care Facility Proposed Development — PLEASE REVIEW PRIOR TO DECEMBER 6, 2018 HEARING To Whom It May Concern: This office represents the Bayview Court HOA ("HOA" herein) with regard to the proposed Harbor Pointe Residential Care Facility for the Elderly (RCFE) currently proposed at the corner of Bristol Street and Bayview Place located at 101 Bayview Place, Newport Beach, California. A Planning Commission hearing is scheduled for December 6, 2018, and it is the understanding of the HOA that the Commission may put this matter to a vote at the conclusion of said hearing. You are hereby12ut on notice of the intent of the HOA to pursue all legal action available by to protect the homeowners' rights and maintain the value of their property, their personal safety, and continue to enjoy the lifestyle that currently exists in the Master Planned Community of Ba vim. Should such legal action prove necessary, this office would intend to join with other HOAs, area businesses, and other currently unnamed entities with an interest in protecting the Bayview community in a joint effort to stop this project. Ultimately, however, the HOA would prefer to work with the City in a cooperative manner towards the most logical conclusion — i.e., that the project should not be approved. There are many meaningful arguments against the project. The most salient are as follows: • The project is highly unpopular among the constituency, poorly conceived, and is inappropriate for the property in question. It confers no benefit on the local community, constitutes a nuisance to local residents, will result in unnecessary parking and traffic issues, violates certain representations and agreements made by the City to the HOA, and is not supported by the City's General Plan. As a result, it would be highly inappropriate 3100 Bristol Street - Suite 100 - Cuda Mesa - California 92626 71.350.01'10 telephone 71.8'50.05 51 Facsimile a WIavav.SCfiUaalai'if"11,oseraberg.cor» City of Newport Beach Community Development Department December 3, 2018 Page 2 for the Commission to reconnnend such an unprecedented amendment to the Master Planned Community of Bayview, Further, this project violates the representations the City made to the homeowners though the Bayview Planned Community Development Plan including, and not limited to, zoning designations. Any development agreement between the Harbor Pointe project's developer and the City wrongfully circumvents the legal planning process and violates the representations and assurances the City made to homeowners through the Bayview Planned Community Development Plan that was in place when homeowners purchased their properties. Additionally, the Draft EIR dated August 2018, and known as Harbor Pointe Senior Living Project Draft Environmental Impact Report (PA2015-210) SCH No. 2016071062, contains grossly misrepresented facts and inaccurate information as well as violates CEQA guidelines and NBMC requirements. The HOA has brought this to the attention of the Planning Commission in a timely manner and is prepared to ftirther discuss therm at the Commission's invitation. This is farther support for a reasonable delay of a recommendation so that the issues may be fully understood before putting tine matter to a vote. A second, independent Draft EIR should be conducted by another firm to address the misrepresented and inaccurate findings before any further public discussions on this project. A Firm should be mutually agreed on by both the City of Newport Beach and the HOA to prepare a new Draft EIR. In the absence of a new Draft EIR, the HOA reserves the right to legally challenge the integrity of the August 2018 Draft EIR known as Harbor Pointe Senior Living Project Draft Environmental Impact Report (PA2015-210) SCH No. 2016071062. There is little doubt that a vote on December 6, 2018, would be premature given the above issues. Before the Planning Commission would potentially take the extraordinary measure of voting to recommend a precedent setting zoning change, it should be frilly informed and advised on the subject. An amendment of this magnitude is a very serious matter. As a further basis for a delay in the vote, the HOA requests that any amendments be tabled until the anticipated new General Plan for the City is in place. It is imperative that the Commission, City Council, and all affected parties, including the homeowners, be fully briefed and understand the inaccuracy of the August 18 EIR and what we contend are inaccurate responses to homeowner concerns posted on the City's website on November 28, 2018. The failure to do so will lead to expensive and time-consuming litigation which will, no -doubt, expose the considerable efforts by lobbying and consulting entities to City of Newport Beach Community Development Department December 3, 2018 Page 3 achieve the vote that they have been seeking on the project. To the extent it can be demonstrated that these efforts have swayed the vote of elected officials to any extent, it will likely be viewed very poorly by the City's constituents. We remain hopeful that a necessary pause will ensue to allow for all involved to frilly understand the issues prior to putting this matter to a vote of the Planning Commission. Very truly yours, SCHUMAN ERG DAVID R. ROSENBERG DRR/cfs kICOX CASTLE NICHOLSON December 5, 2018 Cox, Castle & Nicholson LLP 3121 Michelson Drive, Suite 200 Irvine, California 92612-5678 P: 949.260.4600 F: 949.260.4699 Sean Matsler 949.260.4652 smatsler@coxcastle.com File No. 081382 VIA E-MAIL: PLANNINGCOMMISSIONERS@NEWPORTBEACHCA.GOV Chairman Zak and Honorable Planning Commissioners City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: Agenda Item #4: Harbor Pointe (PA2015-210) Chairman Zak and Honorable Commissioners: This Firm represents Harbor Pointe Senior Living LLC ("HPSL"), the applicant for the proposed residential care facility for the elderly facility ("Project") before this Commission as Agenda Item #4. Earlier this week, City staff received a letter from an insurance defense and civil/business litigation attorney representing the Bayview Court Homeowners Association ("HOA"). That letter requests a continuance of the Planning Commission's action on the Project for several years until the City's General Plan has undergone an update. For the reasons set forth in this letter, HPSL respectfully disagrees. The Project has been thoughtfully designed (and redesigned to respond to community concerns, including those expressed by HOA) over a three year timespan and deserves this Commission's consideration. Each of the HOA attorney's substantive points is copied and responded to below. None motivate HPSL to request a delay of the City's public hearing process. 1. HOA letter: "You are hereby put on notice of the intent of the HOA to pursue all legal action available by law to protect the homeowners' ri hts and maintain the value of their property, their personal safety, and continue to enjoy the lifestyle that currently exists in the Master Planned CommuniU of Bavview. Should such legal action prove necessary, this office would intend to join with other HOAs, area businesses, and other currently unnamed entities with an interest in protecting the Bayview community in a joint effort to stop this project." (Emphasis in original.) a. HPSL response: Over the course of the past three years, HPSL and its representatives have reached out to the HOA, its Board members and directly to the residents no less than four times to engage in a dialogue regarding the Project. Those efforts only received written objections. Nonetheless, in an effort to address the HOA's concerns, HPSL reduced the Project's scale from 144 -beds and approximately 110,000 -square -foot in five -stories to the current Project www.coxcastle.com Los Angeles I Orange County I San Francisco December 5, 2018 Page 2 configuration of 120 -beds and approximately 85,000 -square -foot in four -stories. HPSL has also narrowly tailored the proposed General Plan and zoning redesignations such that only RCFEs will be allowed In light of its past overtures and concessions, HPSL was disappointed to see that the HOA hired an attorney who, rather than offering to facilitate a dialogue, begins his letter by threatening litigation against the City. The HPSL team remains open to conversation with the HOA and hopes that its saber rattling will give way to more a reasoned dialogue. If litigation is unavoidable, the HOA should understand that it could be financially liable for (1) payment of the prevailing parry's attorneys' fees (Code Civ. Proc., § 1021.5); (2) payment for the cost of preparing the administrative record (See, e.g., Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.AppAth 1043, 1055); and (3) other recoverable costs as are generally awarded to a prevailing party (Code Civ. Proc., § 1032(b); Chaparral Greens v. City of Chula Vista (1996) 50 Cal.AppAth 1134, 1151-1154; see also Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.AppAth 765.) 2. HOA letter: "The project is highly unpopular among the constituency, poorly conceived, and is inappropriate for the property in question. It confers no benefit on the local community, constitutes a nuisance to local residents, will result in unnecessary parking and traffic issues, violates certain representations and agreements made by the City to the HOA, and is not supported by the City's General Plan." a. HPSL response: There is a lot to unpack here. First, it is simply not true that the "project is highly unpopular among the constituency." The HOA may not support the project, but many Newport residents see it as an important public benefit allowing aging seniors to reside in their community. The Planning Commission has already received supportive written comments and will hear from other Project supporters on December 6th Second, with respect to local benefits, HPSL has agreed to a $1,000,000 community benefit payment to the City as part of its Development Agreement, with the potential for an additional $150,000 in direct benefit to entities such as the Newport Bay Conservancy, Bayview Court HOA, and the Bayview Terrace HOA. If the HOA had a specific local benefit in mind, it should have accepted HPSL's invitation to engage in a productive dialogue. Third, with respect to "parking and traffic issues," the Project's Environmental Impact Report ("EIR") concludes that the Project will not have significant circulation impacts. In fact, as demonstrated in the EIR, the Project would result in 312 daily trips compared to 738 daily trips for the existing restaurant for a net reduction of over 400 daily trips. December 5, 2018 Page 3 Finally, the Project will be consistent with the General Plan as amended. This conclusion is supported at length in the EIR, particularly in its Table 4.8-1 (Project Comparison To Applicable City Of Newport Beach General Plan Elements) which concludes that the Project would not conflict with any of the General Plan objectives or policies that the City considers to be applicable to the Project. HOA letter: "Further, this project violates the representations the City made to the homeowners though the Bayview Planned Community Development Plan including, and not limited to, zoning designations. Any development agreement between the Harbor Pointe project's developer and the City wrongfully circumvents the legal planning process and violates the representations and assurances the City made to homeowners through the Bayview Planned Community Development Plan that was in place when homeowners purchased their properties." a. HPSL response: The HOA incorrectly asserts that it has some vested right in the existing Bayview Planned Community Development Plan. It does not. (See, e.g., Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal.3d 785, 796 ["It is beyond question that a landowner has no vested right in existing or anticipated zoning."].) It is unclear exactly what "representations and assurances" were made by the City. One interpretation of that phrase is that oral or written statements were made by City staff or even public officials to the HOA. I highly doubt this. Nevertheless, assuming that to be true, case law tells us that such statements cannot and should not be relied upon by property owners (See, e.g., County of Los Angeles v. Berk (1980) 26 Ca1.3d 201, 221 [estoppel did not apply where county planning had advised that a project complied with applicable local codes, but then turned around and brought an implied dedication claim].) It is possible that the reference to "representations and assurances" is meant to suggest that the Bayview Planned Community Development Plan cannot be amended. Wrong again. Not only does Chapter 20.66 of the City's Municipal Code allow for such amendments, but three such amendments to the Bayview Planned Community Development Plan have occurred over the years in 1987 (Resolution No. 87-24), 1995 (Resolution No. 95-115) and most recently in 2010 (Ordinance No. 2010-12). The two most recent amendments added new land use categories not previously included within the Bayview Planned Community Development Plan, as the Project proposes to do. The final assertion by the HOA's attorney in this passage is most troubling. He writes that the proposed Development Agreement "wrongfully circumvents the legal planning process." In other words, the attorney is alleging that the Development Agreement is illegal and that the City and HPSL are engaged in December 5, 2018 Page 4 unlawful activities. That statement is as inaccurate as it is irresponsible. The Development Agreement before this Commission has been vetted by the City Attorney, City staff and myself. It fully complies with California Government Code Sections 65864-65869.5 and Newport Beach Municipal Code Chapter 15.45. The HOA's attorney crossed a line with this statement and should be asked to retract it. 4. HOA letter: "Additionally, the Draft EIR dated August 2018, and known as Harbor Pointe Senior Living Project Draft Environmental Impact Report (PA2015-210) SCH No. 2016071062, contains grossly misrepresented facts and inaccurate information as well as violates CEQA guidelines and NBMC requirements. The HOA has brought this to the attention of the Planning Commission in a timely manner and is prepared to further discuss them at the Commission's invitation." a. HPSL response: City staff and the City's environmental consultant (PSOMAS) have prepared responses to 82 written comments and 23 verbal comments as part of the EIR's Responses to Comments document, consistent with Section 15088 of the CEQA Guidelines. Most of the written and verbal comments were from HOA members. None of the comments result in a substantial change to the Project, create new environmental impacts, or result in an intensification of an impact already identified in the Draft EIR. 5. HOA letter: "A second, independent Draft EIR should be conducted by another firm to address the misrepresented and inaccurate findings before any further public discussions on this project. A Firm should be mutually agreed on by both the City of Newport Beach and the HOA to prepare a new Draft EIR." a. HPSL response: The EIR was prepared by PSOMAS under the direction and supervision of City staff, as allowed by CEQA (Pub Res C §21082.1(a)). As the lead agency, the City is required by CEQA to independently review and analyze the EIR and certify that the EIR reflects its independent judgment (See Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 723, overruled on other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 [finding that "the final responsibility and final authority as to the quality and the content of the EIR lies in the sole discretion of the [lead agency]"]; see also Pub. Resources C § 21082.1(c) [providing that final CEQA document must reflect the lead agency's independent judgment].) For obvious reasons, the City does not allow third parties (e.g., HOAs or applicants) to direct the selection of the City's EIR consultants. December 5, 2018 Page 5 HPSL remains open to productive dialogue with the HOA and other community members. In the interim, we respectfully request this Commission's positive recommendation on the Project at Thursday's hearing. Sincerely, L Sean Matsler of COX, CASTLE & NICHOLSON LLP cc: Paul Habeeb (via e-mail: paul@cpsldev.com) Carol McDermott (via e-mail: carol@entitlementadvisors.com) Seimone Jurjis (via e-mail: sjurjis@newportbeachca.gov) Ben Zbeda (via e-mail: bzdeba@newportbeachca.gov) Aaron Harp, Esq. (via e-mail: aharp@newportbeachca.gov) Armeen Komeili, Esq. (via e-mail: akomeili@newportbeachca.gov) 081382\10250703v1