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Home My WebLink About15 - Appeal for The Garden Office and Parking Structure Proposed at 215 Riverside Avenue - Appeal\W P0Appeal Application 11( City Clerk's Office U = L T 100 Civic Center Drive / P.O. Box 1768 Newport Beach, CA 92658-8915 cq<iFaRN`P 949-644-3005 OFFICE OF e Stamp OT`f (Ir ryz, §TYCIPT R4r_ W Appeals are time sensitive and must be received by the City Clerk specified time period from a df cislon or final action by a decision -maker. It is advisable to consult with the Department managing the issue if there is question with regards to appealing an action. This is an appeal of the: ❑ (CDD222)Community Development Director Action to the Planning Commission - $1,692 ❑ (CDD222)Zoning Administrator Action to the Planning Commission - $1,692 X (CDD222)Planning Commission Action to the City Council - $1,692 ❑ (CDD222)Hearing Officer Action to the City Council - $1,692 ❑ (CDD223)Building Official/Fire Marshal Action to the Building/Fire Board of Appeals - $1,692 ❑ (CDD224)Chief of Police Action on an Operator License to the City Manager - $757 ❑ (RSS073)City Manager Action on a Special Events Permit to the City Council - $1,747 ❑ (HBR001)Harbormaster Action on a Lease/Permit to the Harbor Commission - $100 ❑ (HBR001)Harbormaster Action to the Harbor Commission - Hourly Cost ❑ (HBR001)Harbor Commission Action to the City Council - Hourly Cost ❑ (PBW018)Public Works Director Action Harbor Development Permits to Harbor Commission - Hourly Cost ❑ (PBW018)Public Works Director Action on a Lease/Permit to the Harbor Commission - $100 ❑ Other - Specify decision -maker, appellate body, Municipal Code authority and fee: Appellant Information: Name(s): Ernest Castro, Stefanie Pilalas, Jack Staub, & Hal Woods Address: c/o Aaron J. Ehrlich, Berding & Weil, LLP, 575 Anton Blvd., Suite 1080 City/State/Zip: Costa Mesa, CA 92626 Phone: (714) 429-0600 Email: aehrlich(a-_)berdingweil.com Appealing Application Regarding: Name of Applicant(s): Laidlaw Schultz Architects Date of Final Decision: October 17, 2019 Project No.: PA2019-023 Activity No.:CDP No. CD2019-003/CUP No. UP2019-003 Application Site Address: 215 Riverside Avenue Description of application: Coastal Development Permit No. CD2019-003 & Conditional Use Permit No. UP2019-003 Reason(s) for Appeal (attach a separate sheet if necessary): See Attachment "A" hereto. Signature of Appellant: ^*--- Date: October 31, 2019 FOR OFFICE USE ONLY: Date Ap I filed an Ad i ' trative Fee received: I roo-l'— City Clerk cc: Department Director, Deputy Director, Staff, File FlUserslClerklSharedlForms,Appeal Application Updated 3/7/2019 City of Newport Beach Revenue 100 Civic Center Dr. Newport Beach, CA 92660 949-644-3141 Welcome 006666-0003 Jonathan 10/31/2019 03:44PM MISCELLANEOUS CDD222 PLANNING APPEALS (CDD222) 2020 Item: CDD222 1 @ 1,692.00 CDD222 PLANNING APPEALS (CDD222) 1,692.00 -------------- 1,692.00 Subtotal 1,692.00 Total 1,692.00 CHECK 500.00 Check Number 4005121 CHECK 500.00 Check Number 4005120 CHECK 192.00 Check Number 4005122 CHECK 500.00 Check Number 4004897 Change due -------------- 0.00 Paid by: DDS LEGAL SUPPORT SYSTEMS, INC Thank you for your payment CUSTOMER COPY D S LEGAL SUPPORT SYSTEMS, INC. �.C.�ADVANCE ACCOUNT i 2900 BRISTOL STREET SUITE E•106 COSTA MESA, CA 92626 (714)6625555 per.. 90-382011222 4005122 DATE, o—;?/`17 PACIFIC WESTERN BANK 505 N. Brand Blvd Glendale, CA 91203 FOR 11400 5 1, 2 20 1: 12 2 2 3B 200e: 0 k 30060 5911' DDS LEGAL SUPPORT SYSTEMS, INC. ADVANCE ACCOUNT AG cz 2900 BRISTOL STREET, SUITE E-106 COSTA MESA, CA 92626 (714)662-5555 NA— :LABS r was"",°. -k AUTHORIZED SIG ATUAZ 5h� 5 90-3820/1222 p005g21 DATE—. AQ f3l--' f � dpi ch boaC .00 PACIFIC WESTERN SANK NOT TO EXCEED $600 505 N. Brand Blvd Glendale, CA 91203sr � C C4V R FOR AUTHORI SIGN URE 4"a ,....... 4�y aF 1110 0 5 12 1114 1: 1 2 2 236 2001: 0 130060 59110 DDS LEGAL SUPPORT SYSTEMS, INC. 90-3820;1222 ADVANCE ACCOUNT 4005120 p 2900 BRISTOL STREET, SUITE E-106 C COSTA MESA, CA 92626 (714)662-5555 DATL._ /® �f AYTOTJIF Il ORDER OF .� - 1$,5-00. :.. � 9o[uIry DOLLARS T MloNo on WaN NOT TO EXCEED $600. DO PACIFIC WESTERN BANK 505 N. Brand Blvd Glendale, CA 91203 i FOR 11000S 120,10 1: 1 2 2 21B 2001: 0 1300 60 S9111 a F. AUTHORIZED SIGNATURE DDS LEGAL SUPPORT SYSTEMS, INC. 90-3820/1222 � r ADVANCE ACCOUNT 4004897 'j✓ry 2900 BRISTOL STREET, SUITE E-106 COSTA MESA, CA 92626 DATE AV- ��9 (714)6625555 PAY'CO THE ORDFR On s . F.= . Feo!uees )OLLA-IIS. 8 &�"P°; u.0 NOT TO EXCEED $600.00 PACIFIC WESTERN BANK 505 N. Brand Blvd Glendale, CA 91203 s� P Jai � FOR AU7HORI7ED -SIGNATURE 4 o y 11'00489711' 1:1 2 2 2 38 200II: 0 1 300 60 5 9u■ ..z B=RDING I WEIL ATTORNEYS AT LAW Attachment "A" to Appeal Application Reasons for Appeal Our office is legal counsel for Ernest Castro (2915 Cliff Drive), Jack Staub (291 1 Cliff Drive), Stefanie Pilalas (2907 Cliff Drive), and Hal Woods (2919 Cliff Drive) (collectively the "Adjacent Homeowners"). Pursuant to, in part, Zoning Code sections 20.64.020, subdivision (D) and 21.64.020, subdivision (C), the Adjacent Homeowners hereby appeal ("Appeal") the City of Newport Beach ("City") Planning Commission's ("Planning Commission") October 17, 2019 resolution ("Appealed Resolution") approving Coastal Development Permit No. CD2019-003 ("CDP") and Conditional Use Permit No. UP2019-003 ("CUP") for the Garden Office and Parking Structure located at 215 Riverside Avenue ("215 Riverside") to demolish the existing office building and associated 17 surface parking spaces and construct a new office building and two- level parking structure containing 41 parking spaces ("Project"). As the owners of the homes contiguous with and/or overlooking 215 Riverside, the Adjacent Homeowners are interested parties with respect to the Appeal, the Appealed Resolution, and the Project under Zoning Code sections 20.64.030, subdivision (A) and 21.64.030, subdivision (A). The reasons for the Appeal include, in part, the following: A. The Public Hearings Underlying the Appealed Resolution Were Not Properly Noticed Based upon, in part, the public comments made to the City concerning the Project incident to the public hearings underlying the Appealed Resolution, the Adjacent Homeowners are informed and believe and contend that contrary to the City's requirements, the City failed to provide notice of all pubic hearings concerning the Project, culminating in the Appealed Resolution approved by the Planning Commission on October 17, 2019, to owners and residential occupants within three hundred (300) feet of 215 Riverside's boundaries and those who previously requested notice of the subject public hearings. B. The Appealed Resolution Violates the California Environmental Quality Act The Appealed Resolution wrongly concluded that the Planning Commission's approval of the Project was exempt from the environmental review requirements of the California Environmental Quality Act, Public Resources Code ("Pub. Res. Code") sections 21000 et seq. ("CEQA"), as a Class 32 (In -Fill Development Projects) project under section 15332 of the Guidelines for Implementation of the California Environmental Quality Act, California Code of Regulations, Title 14, Division 6, Chapter 3 ("Guidelines"). PLEASE REPLY TO OUR COSTA MESA OFFICE Attachment "A" to Appeal Application Page 2 Guidelines section 15332 provides that a Class 32 exemption applies for "projects characterized as in -fill development meeting conditions described in this section." Those conditions are: "(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value as habitat for endangered, rare or threatened species. (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality or water quality. (e) The site can be adequately served by all required utilities and public services." Even if a proposed project might qualify for a Class 32 exemption, that exemption will not apply if any of the exceptions listed in Guidelines section 15300.2 applies to the proposed project. (See, Bloom v. McGurk (1994) 26 Cal.AppAth 1307, 1312.) Relevant to the Project, exceptions listed in section 15300.2 include: "(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the some place, over time is significant. (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." Substantial evidence in the record before the Planning Commission does not support the Project's eligibility for a Class 32 exemption. 1. The Technical Reports Relied Upon were Incomplete and Flawed The record before the Planning Commission does not support the Appealed Resolution's finding that the Project "has no potential to have a significant effect on the environment," which is a prerequisite for a Class 32 exemption to potentially apply. This finding relies upon certain technical reports paid for by the Project's owner, 215 Riverside, LLC ("215 Riverside Owner"), and submitted through the Project's applicant, WWW.BERDING WEIa.COM tJ — R D I N G I W— Attachment "A" to Appeal Application Page 3 Laidlaw Schultz Architects ("Project Applicant"), which is the 215 Riverside Owners' architect for the Project; however, critical technical reports necessary to analyze the Project's potential significant effect on the environment were not prepared and before the Planning Commission when it approved the Appealed Resolution and the technical reports relied upon in the Appealed Resolution for its findings contain material, significant deficiencies. The technical reports concerning the Project's potential significant effect on the environment before the Planning Commission were: (1) Urban Crossroad's Noise Impact Analysis; (2) Toal Engineering's Preliminary Water Quality Management Plan; (3) Fuscoe Engineering's Water Demand & Sewer Capacity Memorandums; and (4) Glenn Lukos Associates' Wetland Delineation and Evaluation. No traffic study or geotechnical report was prepared for the Project and provided to the Planning Commission and thus the Planning Commission failed to consider and evaluate the Project's potential significant environmental impacts in terms of traffic and circulation, geotechnical risks and hazards, and lighting and glare, among others, in approving the Appealed Resolution. The City determined that no traffic study to be prepared for the Project because the City calculated the average daily trips attributable to the Project based only on the Project's office use. (August 22, 2019 Staff Report at p. 5 & "Trip Generation Calculations" at p. 82 of August 22, 2019 Staff Report.) The problem is the Proposed Project's parking structure expressly is not limited to the Project's office use. Calculating the average daily trips attributable to the Project based solely on its office use fails to reflect the intended use of the Project as a whole by incompletely and misleadingly limiting the trip generation calculation to only one of the multiple intended uses—thereby ignoring any trips attributable to the intended use of the 29 non -office related parking spaces. Staff's response to this issue when raised during the public hearings underlying the Appealed Resolution, which the Adjacent Homeowners were not given an opportunity to address, was that the 29 non -office related parking spaces were not generating trips but were the byproduct of trips to another location. That is not the case and belies the parking practices in the Mariners' Mile area. Significant discussion occurred between the Planning Commission and Staff about how restaurants located in Mariners' Mile utilize off-site parking lots to accommodate customers through the use of valet parking. The 215 Riverside Owner represented during the underlying public hearings that it was intending to use the Project's surplus parking spaces either for off- site parking to service future restaurants in the Garden Shopping Center or to lease the surplus parking spaces to a local business that requires off-site parking --which in reality is exclusively restaurants or other businesses that utilize valet parking. The use of surplus parking spaces, like that being created at the Project, thus does not involve static parking, but in fact generates additional trips since the vehicles are driven between WWW.BERDING WEIL.COM O- R D I N G I W- I` Attachment "A" to Appeal Application Page 4 the intended destination and the off-site parking lot, thereby doubling the trips versus on-site parking. Given the intended and foreseeable use of the Project's 29 surplus parking spaces, it was erroneous for the City to solely analyze the Project's foreseeable average daily trips based upon its reduced office use, thereby failing to consider the Project's potential significant environmental effects in terms of traffic and circulation. The Adjacent Homeowners are particularly concerned with the Project's traffic and circulation impacts since the Project is adding two and half times the number of the existing parking spaces and while the existing 17 parking spaces are used solely during normal business hours on weekdays incident to the Property's existing office use, the Project's 29 surplus parking spaces are proposed to be used 24 hours a day, seven days a week. Given the significant increase in intensity and duration of use, the Project's traffic and circulation impacts are important considerations which have been ignored to date. As a result, the Appealed Resolution is deficient and its finding that the Project will not have a significant environment impact cannot be supported by the record since the traffic and circulation impacts of the Project were never analyzed or considered. The Project involves demolition of a vast majority of the existing improvements at 215 Riverside and extensive site preparation, including excavation and grading, for the new office building and parking structure to be constructed. New significant retaining walls and other engineered site stability components will be installed as part of the Project due to the sloped nature of the 215 Riverside site. The Adjoining Homeowners each live on the currently stabilized slope above 215 Riverside, leading them to be concerned about the geotechnical risks and potential geotechnical hazards associated with the Project. No geotechnical evaluation of the Project was prepared and provided to the Planning Commission and thus the Project's potential significant environmental effects in terms of geotechnical risks and hazards have not been properly analyzed or considered, leading to a further basis upon which the record does not support the findings of the Appealed Resolution with respect to CEQA. There also was no lighting evaluation for the Project before the Planning Commission when it approved the Appealed Resolution. The second level of the Project's parking structure has open roof -top parking for 22 vehicles which will naturally requires significant lighting given the intended nighttime use. The Adjoining Homeowners are concerned with the lighting and glare impacts associated with the roof -top parking lighting and other Project lighting features. Those impacts were not considered by the Planning Commission in approving the Appealed Resolution since no lighting evaluation was before it, leading to another basis upon which the record does not support the findings of the Appealed Resolution with respect to CEQA. The Adjacent Homeowners also do not believe that the technical reports relied upon by the Planning Commission in the Appealed Resolution support its CEQA WWW.BERDING WEILL.COM U- R D I N G I Y Y E I L Attachment "A" to Appeal Application Page 5 findings. As an example, the Urban Crossroad's Noise Impact Analysis purports to simulate a worst-case scenario of the Project's noise impacts by measuring the noise level over 24 hours in a parking lot of a Lake Forest office building and then using that level as a reference to project the Project's noise impacts, which allegedly supports a finding that the noise level at the first and second levels of the Project's parking structure will not exceed the City's noise limits. The October 17, 2019 Staff Report on page 6 states that: "Noise at this example location was primarily attributed to employees coming and going during the lunch peak hour period, with vehicles pulling in and out of parking spaces and employees talking." The Lake Forest office building is fundamentally dissimilar to the Project's intended use, since the Project will be used both for office purposes and off-site parking purposes. The ongoing noise levels reasonably anticipated at the Project will be significantly greater than the Lake Forest office building since not only will people be coming and going from the Project's office building, but the 29 surplus parking spaces will be used for off-site parking for restaurant or retail purposes, which logically involves shorter stays and more vehicles and people coming and going than a typical office building. Accordingly, the use of the Lake Forest office building noise level as a reference is inappropriate and vastly underestimates the foreseeable ongoing noise level at the Project. The conclusion of the Noise Impact Analysis that the operating noise level at the first and second levels of the Project's parking structure will not exceed City limits is not founded or supportable, thereby causing the record to not support the findings of the Appealed Resolution with respect to CEQA. 2. The Appealed Resolution Incorrectly Concludes that the Project is Consistent with All Applicable General Plan Policies The Project also does not qualify for a Class 32 categorical exemption because is not consistent with all applicable general plan policies, contrary to the findings in the Appealed Resolution. For example, the policy set forth in LU 5.2.2 Buffering Residential Areas of the General Plan provides that the City is to "[r]equire that commercial uses adjoining residential neighborhoods be designed to be compatible and minimize impacts through such techniques as: Incorporation of landscaping, decorative walls, enclosed trash containers, downward focused lighting fixtures, and/or comparable buffering elements; Attractive architectural treatment of elevators facing the residential neighborhood; Location of automobile and truck access to prevent impacts on neighborhood traffic and privacy." The Project's creation of a two-story parking structure is incompatible with the adjoining residential houses and fails to adequately minimize impacts by facilitating the parking of two and a half times the number of vehicles than 215 Riverside's current configuration, and which will be used far more frequently and in a substantially more intrusive manner than the current configuration, including currently non-existent nighttime use. The conditions of approval in the Appealed Resolution do not reasonably or adequately mitigate the foreseeable negative impacts on the Adjacent Homeowners use and enjoyment of WWW.BERDING WE3ILL.COM W- R D I N G I Y Y H I L Attachment "A" to Appeal Application Page 6 their homes. Based upon the 215 Riverside Owner's intended use of the Project, the Project's parking structure will be used for off-site parking to facilitate restaurant use, which will involve vehicles frequently entering and existing the parking structure. The 8' retaining wall at the back of the Project will not mitigate the negative impacts whatsoever since the Adjacent Homeowners' homes are upslope from the Project site and thus the retaining wall does not shield noise, light, glare or other disturbances from the Project upon the Adjacent Homeowners' homes whatsoever. The minimal trellis over some of the roof -top parking spaces similarly will not mitigate the negative impacts since that trellis is located on the opposite side of the Project along Avon Street and thus does not shield noise, light, glare or other disturbances from the Project upon the Adjacent Homeowners' homes. Roof -top parking traditionally has not been approved in Mariners' Mile because of these types of foreseeable negative impacts on adjoining residential uses, which should also be the case here since the Adjacent Homeowners' homes are located as little as 24 feet from the Project. As another example, the policy set forth in LU 6.19 states that Mariners' Mile to be "[a] corridor that reflects and the takes advantage of its location on the Newport Bay waterfront, supports and respects adjacent residential neighborhoods and exhibits a quality visual image for travelers on Coast Highway." As set forth in the preceding paragraph and as otherwise explained incident to the public hearings underlying the Appealed Resolution, the Project's parking structure facilitates an intensity of use that fails to respect the adjoining residential homes. As a further example, the policy set forth in CE 7.1.8 Parking Configuration calls for "[s]ite and design new development to avoid use of parking figuration or management programs that are difficult to maintain and enforce." The use of the Project's parking structure for off-site parking, assuredly involving valet parking for one or more nearby restaurants, creates a difficult parking figuration and management program as identified by the requirement that the City issue a conditional use permit' to allow the same since the parking structure would be adjacent to residential uses. I A conditional use permit is required here because the 215 Riverside Owner desires to construct a parking structure adjacent to a residential zone. The City's Zoning Code at section 20.40.070(B) (3) provides: "When adjacent to a residential zoning district, the development of structured parking, including rooftop parking, shall require the approval of a conditional use permit to address potential impacts to adjacent residential uses." The City's Zoning Code thus mandated that the Planning Commission consider the impact of the Project on the Adjacent Homeowners and either deny a requested conditional use permit if the Project's "potential impacts" will be too significant on the Adjacent Homeowners, or, at minimum, condition approval of the requested conditional use permit for the Project with sufficient requirements to resolve the "potential impacts" on the Adjacent Homeowners. Critical here, section 20.40.070(B) (3) uses the term "potential impacts," which required that the Planning Commission consider all potential uses of the Project and resolve the potential impacts due to those potential uses. As explained in this Attachment "A", the Planning Commission failed to fulfill the requirements of the Zoning Code by approving the Appealed Resolution without sufficient conditions of approval to resolve the "potential impacts" on the Adjacent Homeowners. 800. 838 �2090 WWW.BERDING WEILL.COM B_ R D I N G I WEIL Attachment ''A" to Appeal Application Page 7 3. The Appealed Resolution Violates CEQA's Piecemealing Prohibition Gary Jarbara, the principal of the 215 Riverside Owner, is also the owner of the Garden Shopping Center ("Garden Shopping Center") located across Avon Street from 215 Riverside. On January 14, 2019, Mr. Jarbara filed application number PA2019- 006 with the City for entitlements relating to the proposed Garden Restaurant in the Garden Shopping Center at 2902 West Coast Highway ("Proposed Restaurant Project"). The City determined that a coastal development permit, operator license, site development review, traffic study, and use permit would be required for the Proposed Restaurant Project. The City's website indicates that it transmitted a letter to the applicant on August 15, 2019 that the application for the Proposed Restaurant Project was incomplete, which is the last status entry. The Staff Report for the Planning Commission's August 22, 2019 public hearing concerning the Project indicated that: "The project is intended to support off-site parking for future restaurants with The Garden shopping center located south of the project site across Avon Street" and that "[a] separate conditional use permit is requested as part of a proposed restaurant at 2902 West Coast Highway for off-site parking and to establish a parking management plan for the shopping center including valet parking for the proposed structure." (Page 5.) The Parking Management Plan submitted by the Applicant from RK Engineering Group, Inc. dated May 16, 2019 in support of the Project, included as Attachment No. PC 3 to the August 22, 2019 Staff Report, states that "[t]he remaining 35 non -tandem parking spaces onsite [at the Proposed Project's parking structure] will be utilized for overflow parking from restaurant use located at 2902 West Coast Highway." (Page 2.) The Parking Management Plan adds that the 35 non -office related parking spaces "will satisfy the off-site parking requirements for the CUP application for 2902 West Coast Highway.") (Page 2.) The Adjacent Homeowners and other members of the public raised that the Project and the Proposed Restaurant Project are inextricably linked because there is common ownership between the two projects and the common owner intends to use the Project to satisfy the parking requirement for the Proposed Restaurant Project through off-site parking. In an attempt to obscure this issue, the 215 Riverside Owner signed a Memorandum of Understanding with another local property owner to use parking spaces at that other property "for use as overflow parking spaces for patrons and employees of the Garden's tenants." The 215 Riverside Owner submitted that Memorandum of Understanding to the City to argue that the off-site parking requirement for the Proposed Restaurant Project may be fulfilled through those other spaces and not at the Project. This argument is misleading and meaningless since the Memorandum of Understanding is not a contract and is not binding, it is not specific to WWW.BERDING WE3ILL.COM U_ R D I N G I Y Y E I L Attachment "A" to Appeal Application Page 8 the Proposed Restaurant Project, and the City's records do not reflect that the application for the Proposed Restaurant Project has been changed to indicate that the off-site parking requirement will be satisfied anywhere other than the Project. The common owner expressly tied the Proposed Restaurant Project and the Project together through its submissions to date and its belated attempts to avoid CEQA- required environmental review of the Project are improper. Indeed, the October 17, 2019 Staff Report acknowledges that the two projects are still tied together: "Since there is an application on file proposed to use this site for restaurant off-site parking the Planning Commission can direct staff to bring both applications to them for concurrent review if deemed appropriate." (Page 7.) The Planning Commission was required, but failed, to do so. Even the Appealed Resolution acknowledges this connection. For example, on page 6 under the "Facts in Support of Finding" concerning Finding (C), the Appealed Resolution states in relevant part: "Parking structures are commonly associated with restaurant development and are compatible with the other commercial uses located in Mariners' Mile." Given the foregoing nexus, CEQA requires that the City consider the environmental impacts of the Project's parking structure together with the Proposed Restaurant Project. "A public agency may not divide a single project into smaller individual projects in order to avoid its responsibility to consider the environmental impacts of the project as a whole." (Sierra Club v. West Side Irrigation District (2005) 128 Cal.App.4th 690, 698.) This is because CEQA's requirements "cannot be avoided by chopping up proposed projects into bite -size pieces which, individually considered, might be found to have no significant effect on the environment or to be only ministerial." (Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, 195-196; See also, Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 283-284.) As a result, not only is the environmental analysis incomplete when split into sub -projects, but appropriate mitigation measures may be erroneously omitted. For CEQA purposes, a "project" means "the whole of an action, which has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment ...." (Guidelines § 15378.) As explained in Natural Resources Defense Council, Inc. v. Arcata Not. Corp. (1976) 59 Cal.App.3d 959 at page 969, "in elaborating on the definition of the term 'project,' the Guidelines emphatically underline that it means the Whole of an action which has the potential for physical impact on the environment, and that 'The term 'project' refers to the underlying activity and not the governmental approval process."' As a result, separate activities constitute one "project" when "both activities are integral parts of the same project" (Id.) or "the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects" (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 396). WWW.BERDING WEILL.COM U- R D I N G I WD L Attachment "A" to Appeal Application Page 9 Again, as set forth in the Staff Reports and the materials submitted by the 215 Riverside Owner in support of the Project, the Project's parking structure is an integral part of the Proposed Restaurant Project since it is intended to be used in connection with the Garden Restaurant and it is intended to satisfy the requirements of the conditional use permit sought for the Garden Restaurant for offsite parking. The Proposed Restaurant Project, based upon the current application, would not be possible but for the creation of 29 extra parking spaces through the Project. Moreover, since the use of the Project's parking structure has been tied to the Garden Restaurant's operation, the subsequent approval of the Garden Restaurant's operation would constitute a significant future expansion or action as it would likely change the scope and nature of the Project and the Project's environmental effects since the Project's parking structure would not merely be for surplus parking from the Garden Shopping Center, but rather would be a dedicated, ongoing use for parking to facilitate the Garden Restaurant's operation. The 215 Riverside Owner's attempt to piecemeal is critically important because the City has wrongfully considered the environmental impacts of the Project in a vacuum without considering the integrated role it will play with the Proposed Restaurant Project and the cumulative environmental impacts of the two proposed projects together. The 215 Riverside Owner has purposefully separated the two inextricably linked projects in order to avoid CEQA's required substantive environmental review of the projects. Separating the projects has made it easier for the 215 Riverside Owner to wrongly support an argument that the Project is subject to a categorical exemption from CEQA's requirements; the common owner is supporting an identical argument for the Proposed Restaurant Project, which the City's Staff indicated during the Planning Commission's August 22, 2019 public hearing is presently being analyzed. The environmental studies purportedly supporting the Project's eligibility for a Class 32 categorical exemption narrowly examine the anticipated use of the Project without any influence from the Proposed Restaurant Project. This both wrongly minimizes the foreseeable environmental impacts of the Project to a less -than - significant basis by excluding environmental ramifications of the interconnected use of the two projects and avoids cumulatively analyzing the foreseeable environmental impacts of the two projects together such that they may individually be less -than - significant. As a practical example, the Proposed Restaurant Project seeks approval for the Garden Restaurant to operate until 1:00 a.m. from Friday through Sunday. Given the intended use of the Project's parking structure for benefit of the Garden Restaurant, there will be foot traffic between the Garden Restaurant and the Proposed Project site, which is separated by Avon Street and most of the Garden Shopping Center and vehicular traffic entering and existing the Project site until after 1:00 a.m. on those 800.83.2 WWW.BERDING WEI$.COM B_ R D I N G Y V Attachment "A" to Appeal Application Page 10 days. None of the environmental studies purportedly to support the Class 32 exemption account for or include the foreseeable significant impacts from this interconnected use. The Adjacent Homeowners have grave concerns about the noise, light and glare, traffic and circulation, and aesthetic environmental impacts of the Project, particularly when applied to the sought use of the Project's parking structure for purposes of the Garden Restaurant's operation, which, contrary to CEQA's requirements, simply have not been analyzed in the technical reports purportedly supporting the exemption. Given the foregoing, CEQA requires that the Project and the Proposed Restaurant Project be considered together as one "project" and that appropriate environmental review of that "project" be completed. 4. The Appealed Resolution Did Not Consider the Exceptions to a Class 32 Exemption The Appealed Resolution's findings concerning the Project's eligibility for a Class 32 categorical exemption is necessarily incomplete and unsupportable since it does not consider or analyze whether any of the Guidelines section 15300.2 exceptions apply to the Proposed Project. For example, Guidelines section 15300.2, subdivision (b)'s exception based on cumulative impacts is not been addressed in any fashion in the Appealed Resolution. The Appealed Resolution necessarily could not have addressed the Project's potential cumulative significant environmental effects because none of the technical reports before the Planning Commission considered or analyzed the Project's contribution to cumulative environmental impacts. Given the Proposed Restaurant Project, the nearby proposed Newport Village mixed use project, and other nearby existing and proposed projects, cumulative impacts needed to, but were not, considered, thereby causing the Appealed Resolution to violate CEQA's requirements. As another example, Guidelines section 15300.2, subdivision (c)'s exception based upon significant effect on the environment due to unusual circumstances also is not considered or analyzed in the Appealed Resolution. The Project presents "unusual circumstances" because its parking structure is adjacent to, and as close as 24 feet, residential uses, thereby requiring a conditional use permit, and the Project's parking structure is intended to be used for off-site parking purposes instead of the typical use of a property's parking spaces to serve the on-site uses. The "unusual circumstance" has a direct nexus to a reasonable possibility of the Project having significant environmental impacts in terms of noise, light/glare, aesthetics, and traffic/circulation due to the incredible increase in the intensity of use versus existing conditions, which has not been considered and analyzed by the City as set forth above. The Appealed Resolution thus is not supported by the record with respect to its CEQA findings. WWW.BERDING WE3ILL.COM U- R D I N G I WEIL Attachment "A" to Appeal Application Page 11 C. The Appealed Resolution's Finding Concerning the CDP Are Not Supported by Substantial Evidence Since 215 Riverside is located in the City's Coastal Zone, the Project requires a coastal development permit. The record does not support the Appealed Resolution's findings concerning a coastal development permit. The City's Local Coastal Plan ("LCP"), as codified in the City's Municipal Code, requires that the Project conforms to all applicable sections of the LCP. (Municipal Code § 21.52.015(F).) The Appealed Resolution finds that "[t]he proposed design, bulk, and scale of the development is consistent with the existing neighborhood pattern of development and expected future development." Given the unprecedented approval of roof -top parking in Mariners' Mile within as little as 24 feet from residential uses, and the foreseeable negative impacts on the Adjacent Homeowners, the Project's design, bulk, and scale is inconsistent with the existing neighborhood pattern of development and the expected future development, which protects residential uses from negative impacts due to adjacent and nearby commercial uses. The Appealed Resolution also finds that the Project is located "in an area known for the potential of seismic activity and liquefaction" and thus that "[g]eotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits." That geotechnical investigation should have already occurred and been considered as part of the Project's review before the Planning Commission as addressed above. Deferring the City's approval of the geotechnical investigation for the Project until the public is no longer involved in the review process for the Project is inappropriate, contrary to the LCP's and Zoning Code's purpose and intent, and extremely concerning the Adjacent Homeowners since their homes are on the slope above the 215 Riverside site. D. The Appealed Resolution's Finding Concerning the CUP Are Not Supported by Substantial Evidence The Planning Commission's approval of a conditional use permit for the Project in the Appealed Resolution is not supported by the record. As explained above, the Project required a conditional use permit because it proposed a parking structure adjacent to residential uses, that being the Adjacent Homeowners' homes. Numerous findings were required for the Planning Commission to approve a condition use permit for the Project, many of which are erroneous and unsupported. The Planning Commission was required to find and support that the Project's "use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code." While the Appealed Resolution expressly acknowledges that "[p]arking structures located adjacent to residential districts require review and approval of a conditional use WWW.BERDING WEIL.COM U_ R D I N G I Y Y E I L Attachment "A" to Appeal Application Page 12 permit to minimize impacts to the residential uses," the Appealed Resolution fails to make any specific findings that the Project's approval does in fact minimize impacts to the residential uses and thus the Appealed Resolution is fatally incomplete. Moreover, the record would not support such a potential finding since, as discussed in this Attachment "A", the Appealed Resolution's conditions of approval fail to reasonably and meaningfully minimize the Project's foreseeable negative impacts on the Adjacent Homeowners. The Planning Commission was also required to find that the Project's "design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity." The Appealed Resolution's findings conclude that the Project "should not negatively impact residents" which simply is not supported in the record. As discussed in this Attachment "A", critical technical reports necessary to consider and analyze the Project's negative impact on residents, including the Adjacent Homeowners, were not completed and before the Planning Commission when it approved the Appealed Resolution and the limited technical reports that were considered by the Planning Commission contained unreliable and demonstrably false information. Moreover, the Adjacent Homeowners and concerned members of the public have extensively detailed how the Project's "design, location, size, and operating characteristics of the use" are incompatible with the allowed uses in the vicinity due to Project's location as close as 24 feet from residential uses and extensive foreseeably negative impacts on residents, including the Adjacent Homeowners, from vehicles constantly coming and going from the Project around the clock. Finally, the Planning Commission was additionally required to find that the Project's "[o]peration of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing and working the neighborhood of the proposed use." The Appealed Resolution relies upon the Noise Impact Analysis to conclude that the Project is consistent with this required finding. As set forth above, the Noise Impact Analysis is critically flawed in its approach and purposefully substantially underestimates the foreseeable noise level of the Project's operation by using an inappropriate comparison noise level. The Appealed Resolution's findings relying upon the Noise Impact Analysis are thus not supported. Also, as discussed in this Attachment "A", other critical technical reports necessary to consider and analyze the Project's negative impact on residents, including the Adjacent Homeowners, were not completed and before the Planning Commission when it approved the Appealed Resolution. The only other finding allegedly supporting this required finding in the Appealed Resolution is that "[t]he Project has been conditioned to require a nighttime light inspection to confirm there are no light and glare impacts." The Project's light and glare impacts should have been already analyzed and presented to the Planning Commission and the prospective nighttime light inspection, after the public review of WWW.BERDING WEILL.COM LJ R D I N G I WDL Attachment "A" to Appeal Application Page 13 the Project is completed, is extremely concerning the Adjacent Homeowners since they will have no ability to participate in the same or be made aware of the same. Moreover, there are myriad other potential impacts to the residents besides only noise, light, and glare as set forth in this Attachment "A", many of which simply were not considered or analyzed by the Planning Commission in approving the Appealed Resolution. The critical absence of a traffic study and a geotechnical evaluation are easy examples of foreseeable impacts of the Project on the public, including the Adjacent Homeowners, which have not been considered or analyzed and to which the Appealed Resolution is silent. As a result, the Appealed Resolution is both incomplete and unsupported with respect to this required finding. E. The Appealed Resolution's Conditions of Approval Do Not Adequately Mitigate the Project's Foreseeable Negative Impacts on the Public Including the Adjacent Homeowners As addressed above, the Adjacent Homeowners and members of the public raised substantial concerns about the Project's foreseeable negative impacts. The Adjacent Homeowners contend that the Planning Commission's conditions of approval included in the Appealed Resolution do not go for enough to reasonably protect them or the general public. One of the critical conditions of approval that the Planning Commission considered, but did not adopt, was prohibiting vehicles from using the roof -top parking spaces on the second level of the Project's parking structures after 9 pm to mitigate foreseeable negative impacts. The Adjacent Homeowners welcomed that potential condition of approval as it would meaningful decrease the Project's negative impacts; however, the Planning Commission failed to include that condition in the Appealed Resolution. That condition of approval, among others designed to help protect the use and enjoyment of the Adjacent Homeowners' homes and public interests, needed to be included to fulfill the Zoning Code's requirements that a parking structure next to residential uses be sufficient conditioned to address "potential impacts." F. The Appealed Resolution Approves a Project that Cannot be Built The Adjacent Homeowners are also extremely concerned that the 215 Riverside Owner has sought approval of the Project in contravention of numerous limitations on the development of 215 Riverside set forth in publicly recorded easements burdening the 215 Riverside Owner and benefiting the Adjacent Homeowners. Those easements were negotiated, executed, and publicly recorded to avoid this very situation where development of 215 Riverside is proposed in a manner that will negatively impact the Adjacent Homeowners' homes. Since the 215 Riverside Owner has not modified the Project to be consistent with the easement's developmental limitations, the City's potential approval of the Project forces the Adjacent Homeowners into a position where it must initiate litigation against the 215 Riverside Owner, and likely the City, to 800.838.2090 WWW.BERDING WEILL.COM B- R D I N G I W- I L Attachment "A" to Appeal Application Page 14 protect their rights guaranteed by the easements. It is regrettable that the 215 Riverside Owner did not disclose the existence of the easements to the City, thereby forcing the Adjacent Homeowners to put the City on notice of the same before the Planning Commission's October 17, 2019 public hearing during which it approved the Appealed Resolution. G. Incorporation of Prior Public Comments The Adjacent Homeowners also support the Appeal with all of the other public comments they, their counsel, and other members of the public concerned with and/or opposed to the Project, made during and incident to the public hearings before the Planning Commission concerning the Project. Those comments include, in part, the correspondence enclosed herewith as Exhibit "A". LJ WWW.BERDING WEILL.COM - R D I N G I W I L Exhibit "A" B=RDI NG WHI L ATTORNEYS AT LAW October 8, 2019 VIA E-MAIL ONLY Planning Commission City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Email: plannincicommissioners@newportbeachca.gov Re: The Garden Office and Parking Structure Proposed Project Dear Chair Koetting and Fellow Commissioners: BERDING & WEIL LLP COSTA MESA 575 Anton Boulevard Suite 1080 Metro Center Costa Mesa, CA 92626 714.429.0600 714.429.0699 I SAN DIEGO 1660Hotel Circle North Suite 701 San Diego, CA 92108 858.625.3900 858.625.3901 I WALNUT CREEK 2175 N. California Blvd. Suite 500 Walnut Creek, CA 94596 925.838.2090 925.820.5592 f WWW.BERDINGWEIL COM This letter concerns the City of Newport Beach's ("City") Planning Commission's ("Planning Commission") continued public hearing on October 17, 2019 with regard to the Garden Office and Parking Structure matter. Specifically, the project applicant, 215 Riverside LLC ("Applicant"), requests that the Planning Commission approve Coastal Development Permit No. CD2019-023, Conditional Use Permit No. UP2019-0031, and Modification Permit No. MD2019-003 (collectively the "Requested Entitlements") to demolish the existing office and restaurant building and associated 17 surface parking spaces and construct a new 2,830 square foot office building and multi-level parking structure containing 47 spaces ("Proposed Project"2) at 215 Riverside Avenue ("215 Riverside"). Our office is legal counsel for Ernest Castro (2915 Cliff Drive), Jack Staub (2911 Cliff Drive), Stefanie and Troy Pilalas (2907 Cliff Drive), Hal Woods (2919 Cliff Drive), three of which own homes contiguous with 215 Riverside and the fourth owns a house overlooking 215 1 The Conditional Use Permit is required because the Applicant desires to construct a parking structure adjacent to a residential zone. The City's Zoning Code at section 20.40.070(B)(3) provides: "When adjacent to a residential zoning district, the development of structured parking, including rooftop parking, shall require the approval of a conditional use permit to address potential impacts to adjacent residential uses." The City's Zoning Code thus mandates that the Planning Commission consider the impact of the Proposed Project on the Adjacent Homeowners and either deny a requested conditional use permit if the Proposed Project's "potential impacts" will be too significant on the Adjacent Homeowners, or, at minimum, condition approval of the requested conditional use permit for the Proposed Project with sufficient requirements to resolve the "potential impacts" on the Adjacent Homeowners. Critical here, section 20.40.070(B) (3) uses the term "potential impacts," which requires that the Planning Commission consider all potential uses of the Proposed Project and resolve the potential impacts due to those potential uses. 2 As discussed below, while the Applicant has separated the proposed project at 215 Riverside from its proposed restaurant project across the street at 2902 West Coast Highway, the two are integrally related and must be considered as one project. PLEASE REPLY TO OUR COSTA MESA OFFICE Planning Commission City of Newport Beach October 8, 2019 Page 2 Riverside (collectively the "Adjacent Homeowners"). The Adjacent Homeowners will each be materially and substantially negatively impacted by the Proposed Project, which is next door to their homes. The Adjacent Homeowners' homes relative to the Proposed Project is depicted on Attachment "A" to this letter. The Adjacent Homeowners respectfully request that the Planning Commission deny the Requested Entitlements because the Applicant has purposefully submitted an incomplete application for the Proposed Project to facilitate unlawful project -splitting, and the approval of the Requested Entitlements would violate applicable laws, including, in part, the California Environmental Quality Act ("CEQA"), Public Resources Code ("Pub. Res. Code") sections 21000 et seq., and the Guidelines for Implementation of the California Environmental Quality Act ("Guidelines"), California Code of Regulations, Title 14, Division 6, Chapter 3. The Application for the Proposed Project is Incomplete Since it is Inextricably Linked to the Proposed Garden Restaurant Project Gary Jarbara, the principal of the Applicant, is also the owner of the Garden Shopping Center ("Garden Shopping Center") located across Avon Street from 215 Riverside. On January 14, 2019, Mr. Jarbara filed application number PA2019-006 with the City for entitlements relating to the proposed Garden Restaurant in the Garden Shopping Center at 2902 West Coast Highway ("Proposed Restaurant Project"). The City determined that a coastal development permit, operator license, site development review, traffic study, and use permit would be required for the Proposed Restaurant Project. The City's website indicates that it transmitted a letter to the applicant on August 15, 2019 that the application for the Proposed Restaurant Project was incomplete, which is the last status entry. The Staff Report for the Planning Commission's August 22, 2019 public hearing concerning the Proposed Project ("Staff Report") indicated that: "The project is intended to support off-site parking for future restaurants with The Garden shopping center located south of the project site across Avon Street" and that "[a] separate conditional use permit is requested as part of a proposed restaurant at 2902 West Coast Highway for off-site parking and to establish a parking management plan for the shopping center including valet parking for the proposed structure." (Page 5.) The Parking Management Plan submitted by the Applicant from RK Engineering Group, Inc. dated May 16, 2019 in support of the Proposed Project ("Parking Management Plan"), included as Attachment No. PC 3 to the Staff Report, states that "[t]he remaining 35 non -tandem parking spaces onsite [at the Proposed Project's parking structure] will be utilized for overflow parking from restaurant use located at 2902 West Coast Highway.'' (Page 2.) The Parking Management Plan adds that the 35 non -office related parking spaces "will satisfy the off-site parking requirements for the CUP application for 2902 West Coast Highway.") (Page 2.) Despite the above, the Applicant has contended that the Proposed Project and the Proposed Restaurant Project are separate. Even more confounding, City's Staff has supported the Applicant's demonstrably false argument that the two projects are separate. They are not. As set forth in the Staff Report and the materials submitted by the Applicant in support of the WWW.BERDING WE3ILL.COM _ R D I N G I Y Y _ Planning Commission City of Newport Beach October 8, 2019 Page 3 Proposed Project, the unequivocal intent of the Applicant is to include the proposed parking structure's 35 new non -office related parking spaces to the potential Garden Restaurant's tenant for valet and other parking purposes. The conditional use permit for offsite parking requested for the Proposed Restaurant Project is to be satisfied through the Proposed Project's parking structure. Simply put, the two projects have been expressly and explicitly tied together by the Applicant, as acknowledged by the City, and thus, at minimum, the City is required to consider the proposed parking structure as part of the Proposed Restaurant Project's application. As a result, the Adjacent Homeowners request that the City deem the Proposed Project's application to be incomplete and require that it be joined with the application for the Proposed Restaurant Project so both projects can properly be considered together. The Adjacent Homeowners thank Chairperson Koetting and Commissioner Ellmore for their support in this regard during the August 22, 2019 and October 3, 2019 public hearings and respectfully urge the remaining Commissioners to support the same. The Proposed Project Would Violate CEQA's Project -Splitting Prohibition Given the foregoing nexus, CEQA requires that the City consider the environmental impacts of the Proposed Project's parking structure together with the Proposed Restaurant Project. "A public agency may not divide a single project into smaller individual projects in order to avoid its responsibility to consider the environmental impacts of the project as a whole." (Sierra Club v. West Side Irrigation District (2005) 128 Cal.App.4th 690, 698.) This is because CEQA's requirements "cannot be avoided by chopping up proposed projects into bite -size pieces which, individually considered, might be found to have no significant effect on the environment or to be only ministerial." (Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, 195-196; See also, Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 283-284.) As a result, not only is the environmental analysis incomplete when split into sub -projects, but appropriate mitigation measures may be erroneously omitted. For CEQA purposes, a ''project'' means "the whole of an action, which has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (Guidelines § 15378.) As explained in Natural Resources Defense Council, Inc. v. Arcata Not. Corp. (1976) 59 Cal.App.3d 959 at page 969, "in elaborating on the definition of the term 'project,' the Guidelines emphatically underline that it means the Whole of an action which has the potential for physical impact on the environment, and that 'The term 'project' refers to the underlying activity and not the governmental approval process."' As a result, separate activities constitute one "project" when "both activities are integral parts of the same project" (Id.) or "the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects" (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 396). Here, as set forth in the Staff Report and the materials submitted by the Applicant in support of the Proposed Project, the Proposed Project's parking structure is an integral part of the Proposed Restaurant Project since it is intended to be used in connection with the Garden WWW.BERDING WEIL.COM tJ R D I N G I WEIL Planning Commission City of Newport Beach October 8, 2019 Page 4 Restaurant and it is intended to satisfy the requirements of the conditional use permit sought for the Garden Restaurant for offsite parking. The Proposed Restaurant Project, based upon the current application, would not be possible but for the creation of 35 extra parking spaces through the Proposed Project. Moreover, since the use of the Proposed Project's parking structure has been tied to the Garden Restaurant's operation, the subsequent approval of the Garden Restaurant's operation would constitute a significant future expansion or action as it would likely change the scope and nature of the Proposed Project and the Proposed Project's environmental effects since the Proposed Project's parking structure would not merely be for surplus parking from the Garden Shopping Center, but rather would be a dedicated, ongoing use for parking to facilitate the Garden Restaurant's operation. The Applicant's unlawful attempt to piecemeal is critically important because the City has wrongfully considered the environmental impacts of the Proposed Project in a vacuum without considering the integrated role it will play with the Proposed Restaurant Project and the cumulative environmental impacts of the two proposed projects together. The Applicant has purposefully separated the two inextricably linked projects in order to avoid CEQA's required substantive environmental review of the projects. Separating the projects has made it easier for the Applicant to wrongly contend that the Proposed Project is subject to a categorical exemption from CEQA's requirements. The Applicant has already made the same specious claim with respect to the Proposed Restaurant Project, which the City's Staff indicated during the Planning Commission's August 22, 2019 public hearing is presently being analyzed. The environmental studies purportedly supporting the Proposed Project's eligibility for a Class 32 categorical exemption narrowly examine the anticipated use of the Proposed Project without any influence from the Proposed Restaurant Project. This both wrongly minimizes the foreseeable environmental impacts of the Proposed Project to a less -than -significant basis by excluding environmental ramifications of the interconnected use of the two projects and avoids cumulatively analyzing the foreseeable environmental impacts of the two projects together such that they may individually be less -than -significant. As a practical example, the Proposed Restaurant Project seeks approval for the Garden Restaurant to operate until 1:00 a.m. from Friday through Sunday. Given the intended use of the Proposed Project's parking structure for benefit of the Garden Restaurant, there will be foot traffic between the Garden Restaurant and the Proposed Project site, which is separated by Avon Street and most of the Garden Shopping Center and vehicular traffic entering and existing the Proposed Project site until after 1:00 a.m. on those days. None of the environmental studies purportedly to support the Applicant's Class 32 exemption account for or include the foreseeable significant impacts from this interconnected use. The Adjacent Homeowners have grave concerns about the noise, light and glare, traffic and circulation, and aesthetic environmental impacts of the Proposed Project, particularly when applied to the sought use of the Proposed Project's parking structure for purposes of the Garden Restaurant's operation, which, contrary to CEQA's requirements, simply have not been analyzed in the technical reports purportedly supporting the Applicant's requested exemption. Given the foregoing, CEQA requires that the Proposed Project and the Proposed WWW.BERDING WEILL.COM U_ R D I N G V V _ IL Planning Commission City of Newport Beach October 8, 2019 Page 5 Restaurant Project be considered together as one "project" and that appropriate environmental review of that "project" be completed. The Proposed Project does not Quality for a Class 32 Categorical Exemption The Applicant seeks to avoid required environmental review of the Proposed Project by speciously asserting it is subject to a Class 32 categorical exemption from CEQA's requirements. Guidelines section 15332 provides that a Class 32 exemption applies for "projects characterized as in -fill development meeting conditions described in this section." Those conditions are: "(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value as habitat for endangered, rare or threatened species. (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality or water quality. (e) The site can be adequately served by all required utilities and public services." Even if a proposed project might qualify for a Class 32 exemption, that exemption will not apply if any of the exceptions listed in Guidelines section 15300.2 applies to the proposed project. (See, Bloom v. McGurk (1994) 26 Cal.AppAth 1307, 1312.) Relevant to the Proposed Project, exceptions listed in section 15300.2 include: "(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." The Proposed Project does not qualify for a Class 32 exemption because it is not consistent with all applicable general plan policies, the potential significant effects of the Proposed Project relating to traffic, noise, air quality or water quality have not been appropriately analyzed, and the City has failed to analyze the exceptions to the potential exemption. 800.838.2090 WWW.BERDING WEILL.COM B- R D I N G Y V _ I L Planning Commission City of Newport Beach October 8, 2019 Page 6 The Proposed Project is not Consistent with Applicable General Plan Policies The Proposed Project does not qualify for a Class 32 categorical exemption because is not consistent with all applicable general plan policies. For example, the policy set forth in LU 5.2.2 Buffering Residential Areas of the General Plan provides that the City is to "[r]equire that commercial uses adjoining residential neighborhoods be designed to be compatible and minimize impacts through such techniques as: Incorporation of landscaping, decorative walls, enclosed trash containers, downward focused lighting fixtures, and/or comparable buffering elements; Attractive architectural treatment of elevators facing the residential neighborhood; Location of automobile and truck access to prevent impacts on neighborhood traffic and privacy." The Proposed Project's creation of a two-story parking structure is incompatible with the adjoining residential houses and fails to adequately minimize impacts by facilitating the parking of nearly three times the number of vehicles than 215 Riverside's current configuration, many of which will be substantially closer to the residential houses than the current configuration, and which will be used far more frequently and in a substantially more intrusive manner than the current configuration, including the previously non-existent nighttime use. As another example, the policy set forth in LU 6.19 states that Mariners' Mile to be "[a] corridor that reflects and the takes advantage of its location on the Newport Bay waterfront, supports and respects adjacent residential neighborhoods and exhibits a quality visual image for travelers on Coast Highway." As set forth in the preceding paragraph, the Proposed Project's parking structure facilitates an intensity of use that fails to respect the adjoining residential houses. As a further example, the policy set forth in CE 7.1.8 Parking Configuration calls for "[s]ite and design new development to avoid use of parking figuration or management programs that are difficult to maintain and enforce." The Proposed Project's parking structure being offsite from the Garden Restaurant and intended to be used for valet parking creates a difficult parking figuration and management program as identified by the requirement that the City issue a conditional use permit to allow the same. Moreover, the use of tandem parking spaces intended to serve both those working in and visiting the Proposed Project's office building also creates a difficult parking figuration and a parking management program that is difficult to maintain and enforce; Chairperson Koetting acknowledged the same in his questioning to the City's Staff during the August 22, 2019 public hearing. The Applicant has proposed to satisfy the 12 required office -dedicated parking spaces through unconventional and tedious tandem parking spaces—with employees parking in the tandem's back space and customers parking in the tandem's front space—so that the Applicant can maximize the number of non -office dedicated parking spaces in the Proposed Project's parking structure for purposes of the Garden Restaurant's operation. The City has not Sufficiently Analyzed the Proposed Project's Potential Significant Effects Relatina to Traffic, Noise, Air Quality, and Water Quality The Proposed Project does not qualify for a Class 32 categorical exemption because the City has not analyzed whether the Proposed Project would potentially have significant 800.838.2090 WWW.BERDING WEILL.COM B- R D I N G V V _ I L Planning Commission City of Newport Beach October 8, 2019 Page 7 effects relating to traffic, noise, air quality, and water quality. Most notably, the City's environmental analysis of the Proposed Project is incomplete and deficient since it has narrowly examined the environmental impacts of the Proposed Project without considering the Proposed Restaurant Project. As set forth above, the Proposed Project and the Proposed Restaurant Project are one "project" for CEQA purposes and the environmental impacts of the some must be considered together. Since the City has not done so there is not substantial evidence in the record to potentially support a finding that the Proposed Project will not have potentially significant effects relating to traffic, noise, air quality, and water quality. Exemplifying this failure, no traffic study supports the requested Class 32 categorical exemption and thus the potential significant environmental impacts of the Proposed Project in terms of traffic and circulation have not been studied or considered by the City. This is because the City did not require the Applicant to prepare a traffic study as the City calculated the average daily trips attributable to the Proposed Project based only on the Proposed Project's office use. (Staff Report at p. 5 & "Trip Generation Calculations" at p. 82 of Staff Report.) The problem is the Proposed Project's parking structure expressly is not limited to the Proposed Project's office use. Calculating the average daily trips attributable to the Proposed Project based solely on its office use fails to reflect the intended use of the Proposed Project as a whole by incompletely and misleadingly limiting the trip generation calculation to only one of multiple intended uses—thereby ignoring any trips attributable to the intended use of 35 non -office related parking spaces for purposes of the Garden Restaurant's operation. The administrative record therefore fails to support a potential finding that the Proposed Project will not generate an increase of 300 average daily trips, thereby triggering the requirement for the preparation of a traffic study. Given this failure, there is not substantial evidence in the administrative record to support a potential finding that the Proposed Project will not have a significant effect on the environment in terms of traffic and circulation. Also demonstrating the failure of the City to properly analyze the environmental impacts of the Proposed Project, the Staff Report notes the noise and light/glare disturbances that parking facilities may have on adjacent residences yet concludes that "[t]he proposed parking structure provides more parking spaces ... but the impacts from vehicle movements will be similar to that of existing conditions." (Page 6.) Contradicting that conclusion, the Staff Report notes on the next page that "[t]he increased parking supply for the area may potentially result in more activity and additional late night activities (noise, headlights, and valet operations) if the spaces are authorized as off-site parking for other uses in the area" and that "[t]he operation and use of the surplus parking will be analyzed in detail as part of a parking management plan for off-site parking with a conditional use permit for these future uses." (Page 7.) Given the Applicant's express intention to use the 35 non -office related parking spaces of the Proposed Project's parking structure for the Garden Restaurant, the City must analyze the environmental impacts of the Proposed Project's parking structure use for both office and the Garden Restaurant's purposes. That analysis has not been completed and thus again, the administrative record does not contain substantive evidence to support a potential finding that the Proposed Project will not have a significant effect on the environment in terms of noise and light/glare. WWW.BERDING WE3L.COM U_ R D I N G V V _ I L Planning Commission City of Newport Beach October 8, 2019 Page 8 The City has not Analyzed the Exceptions to a Potential Class 32 Categorical Exemption The City's analysis of the Proposed Project's eligibility for a Class 32 categorical exemption is necessarily incomplete and unsupportable since it does not consider or analyze whether any of the Guidelines section 15300.2 exceptions apply to the Proposed Project. For example, Guidelines section 15300.2, subdivision (b)'s exception based on cumulative impacts has not been addressed in any fashion. In the unforeseeable situation that the Planning Commission disagrees with the above project -splitting problems, at minimum, the Proposed Project and the Proposed Restaurant Project would contribute to cumulative impacts given the discussed nexus between the projects and those cumulative impacts have not been addressed in any manner through the City's analysis to date thus making the City's Class 32 categorical exemption analysis fatally deficient. As another example, Guidelines section 15300.2, subdivision (c)'s exception based upon significant effect on the environment due to unusual circumstances has not be discussed. The Proposed Project presents ''unusual circumstances" because its parking structure is intended to be used for offsite valet parking for the Garden Restaurant. The City's requirement that a conditional use permit be granted for such offsite parking demonstrates that the City considers such a configuration to be unusual, otherwise a discretionary entitlement would not be required for the same. The "unusual circumstance" has a direct nexus to a reasonable possibility of the Proposed Project having significant environmental impacts in terms of noise, light/glare, aesthetics, and traffic/circulation due to the incredible increase in the intensity of use versus existing conditions, which has not been considered and analyzed by the City as set forth above. Given the myriad deficiencies with the Proposed Project as set forth in this letter, the Adjacent Homeowners respectfully request that the Planning Commission either deny the Proposed Project or, at a minimum, require that the Proposed Project be considered as part of the some "project" as the Proposed Restaurant Project. Very truly yours, BERDING & WEIL LLP Aaron J. Ehrlich Partner aehrlich@berdingweil.com Enclosure cc: Makana Nova Associate Planner City of Newport Beach Email: mnova@newportbeachca.gov R WWW.BERDING WEILL.COM IJ R D I N G I W- Planning Commission City of Newport Beach October 8, 2019 Page 9 James Campbell Deputy Community Development Director City of Newport Beach Email: icampbell @newportbeachca.goy Seimone Jurjis Community Development Director City of Newport Beach Email: sjurjis@newportbeachca.gov Grace K. Leung City Manager City of Newport Beach Email: gleuna@newportbeachca.aov Leilani I. Brown City Clerk City of Newport Beach Email: Ibrown@newportbeachca.ctov Aaron C. Harp City Attorney City of Newport Beach Email: aharp@newportbeachca.gov WWW.BERDING WEILL.COM U- R D I N G' Y Y H I L Attachment "A" CENTERSTONE CO M M U N I T I E S WEST October 15, 2019 Mr. Aaron C. Harp City Attorney, City of Newport Beach Civic Center 100 Civic Center Drive, Bay 2E Newport Beach, CA 92660 Re: Easement Document Made: August 31, 1990 Recorded: November 6, 1990 County of Orange, CA 215 Riverside Drive office remodel and proposed parking structure Dear Mr. Harp, My name is Hal Woods. 1 am the owner of a single family home directly behind the proposed project at 215 Riverside Drive in Newport Beach. This letter is to inform you of some very important information that has critical bearing on this proposed project. This information will allow the appointed and elected decision makers and staff of this great city to make an informed and proper decision on these very controversial projects. These projects have the potential to negatively impact the family lifestyle of our Newport Heights neighborhood as well as our property values for years to come. Enclosed are four recorded Grants of Easement Agreement executed by the property owner at 215 Riverside Drive in August of 1990. The Grants of Easement Agreement were each formalized and recorded in order to protect the homes surrounding 215 Riverside Drive. I am the Grantee of one of the Grants of Easement Agreement. These recorded documents have great bearing not only on the allowable design, but its ultimate approval or denial by the trusted decision makers, since they limit the permissible development of 215 Riverside Drive. The proposed project at 215 Riverside Drive is inconsistent with the limitations set forth in the Grants of Easement Agreement. Please take the time to study the impacts of the law of this document and help safeguard the adjacent community, as well as the very closely connected residential homes that are directly affected. Please pay special attention to the carefully -drafted provisions of this document with respect to access and viewshed. 3500-B W. lake Center Drive, Santa Ana, California 92704 • (714) 437-0800 « Fax: (714) 4370830 When allowed to study the staff report and supporting documents last Friday afternoon, it appears there were discrepancies and missed communications from what we were told in the initial community meeting regarding this proposed project and its design. It would be unfortunate for the City and Planning Commission to spend even more time and resources considering a project that cannot be built due to the applicant's failure to disclose and comply with the Grants of Easement Agreement. Thank you again for taking the time and effort to make an informed decision with all the information disclosed, including this legally -recorded public document. )ds, Jr., A.I.A. )f Newport Beach 2919 Cliff Drive, Newport Beach, CA 92663 Cell Number: 714-200-4915 Attachment: Grants of Easement Agreement CC: Seimone Jtujis, Community Development Director James Campbell, Deputy Community Development Director Makana Nova, Associate Planner Peter Koetting, Chair, City of Newport Planning Commission 3500-8 W. Lake Center Drive ♦ Santa Ana, California 92704 ♦ (714) 437-0800 ♦ Fax (714) 437-0830 90=588072 RECORDING Ri QUESTED BY SOUTH CUASI TIILE CUMPANY RECORDING REQUESTED BY RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALiFOPWA AND WHEN RECORDED MAIL TO: 7.:30 ALLEN, MATKINS, LECK, GAMBLE b P.M. NOV 61990 MALLORY 18400 Von Karman, Fourth Floor $23.00 Irvine. California 92715 C1 0.i6�REMER ATTN: Gary S. McKitterick, Esq. !Above Space for Recorders Use Only? This document filed for recording by Soots Coast TR•_ c,n ary as an has not GRANT OE EASEMENT AGREEMM been eram.ned as to its execc_on or as to its affect on the bile. This GRANT OF EASEMENT AGREEMENT ("Agreement") is made as of this 31 day of August , 1990, by and between NELLY VAN CALCAR, an individual, YVONNE VAN CALCAR, an individual and MARILYN J. SALENE, an individual (collectively, "Grantor"), and RONALD JACKSON, an individual ("Grantee"). R E C I T A L &: A. Grantor owns that certain real property described in Z.Wk 1i -t "A" attached hereto and by this reference incorporated herein (the "Servient Tenement"). B. Grantee owns that certain real property which is situated adjacent to the Servient Tenement, which is more particularly described in Eahibit "B" attached hereto and by this reference incorporated herein (the "Dominant Tenement"). The Dominant Tenement and Servient Tenement sometimes are referred to individually as a "Parcel" and collectively as the "Parcels." C. Grantee desires to acquire from Grantor, and Grantor is prepar-d to convey to Grantee, certain easements for access, ingress and egress, landscaping and view over and across the Servient Tenement for the benefit of the Dominant Tenement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: RI/942/2RBR/M9280-002/07-18-90/mfg > as�m�nt�.�or..Access, .Ings��s�_1=g ss_ansLvipw. (a) Grants 4f ...E1!&SlABIIt. Grantor hereby grants to Grantee perpetual, exclusive easements and rights-of-way, and incidents thereto, for the benefit of and appurtenant to the Dominant Tenement over such portions of the Servient Tenement and for such purposes as are more particularly set forth below. The easements granted hereinbelow shall be referred to collectively as the "Easements". (i) A•ccess_E��en=t. An easement ("Access Easement") for the purposes of pedestrian access, ingress and egress over, under and across that portion of the Servient Tenement as is more particularly described in Exhibit_ and depicted on Exhibit "C-1" attached hereto ("Easement Area"). (ii) Landscape an�provement PageMent. An easement over, under and across the Easement Area ("Landscape and Improvement Easement") for the purposes of installation, maintenance, replacement, alteration and restoration of landscaping and improvements, structures and/or appurtenances within the Easement Area, including, but not limited to, benches, fountains, sprinklers, pipes, trellises, fences, stairs, a satellite dish, or a gazebo or similar structures (collectively, "Improvements"). (iii) View Easement. An easement ("view Easement") for the purposes of light, air and view into, through, over and above the Air Space, as defined in Paragraph 3 hereof. 2. Maintenance. All Costs and expenses associated with the maintenance, restoration, repair, cleaning or landscaping of the Easement Area and the Improvements, as applicable, shall be borne by Grantee. 3. Covenant Regarding Airspage. Grantor hereby represents, warrants and covenants to Grantee that in no event shall Grantor (a) construct or install (or permit to be constructed or installed) any improvements on the Servient Tenement; or (b) reconstruct the improvements currently existing on the Servient Tenement; or (c) allow trees, hedges, shrubs or other similar plants to be located on the Servient Tenement (collectively, "Obstruction"), to a height in excess of*fortv.e3ghgy-nine ft. ( 40_H9 __) feet ("Height Limit"), as measured from the street at the adjacent corner of Riverside Avenue and Avon Street. The vacant air space over the entire Servient Tenement located above the Height Limit shall be referred to herein as the "Air Space." Any Obstruction existing or located on the Property in violation of the terms and *not to exceed existing roof of approximately 40.89' above _2_ mean sea level. R1/942/2R8R/N9280-002/07-18-90/mfg conditions of this Paragraph 3 shall be an unauthorized interference with Grantee's View Easement and shall be removed immediately by Grantor on demand at Grantor's sole cost and expense. The failure of Crintee to require the removal of an obstruction shall in no way deemed a waiver of Grantee's right to require such removal. 4. R1�11 �'.ittlt(lg_ya.t�d• The obligations, rights and restrictions set forth in this Agreement with respect to each Parcel and the owner thereof will directly benefit or burden, as applicable, the other Parcel, shall run with each Parcel, and shall be binding upon the parties hereto and their successors and assigns. Every individual or entity who now or hereafter owns or acquires any right, title or interest in or to any Parcel or portion thereof is and shall bt:-onclusively deemed to have consented 4-1d agreed to every obligation or restriction provided for herein. whether or not any reference to t..1is instrument is contained in the instrument by which such individual or entity acquired an interest in the Parcel. 5. Dedic UD -n. The provisions of this Agreement shall not be deemed to constitute a dedication for public uffi nor create any rights in the general public. 6. Attorneys' Fees. in the event either party hereto, or their successors or assigns, brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of, or any other action arising out of, this Agreement or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and reasonable costs incurred in such action or proceeding, in addition to any other damages or relief awarded. General Provisions. (a) Any provisions rf this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain in full force and effect. (b) Time is of the essence. (c) This Agreement shall be construed in accordance with and governed by the laws of the State of California. (d) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one instrument. -3- R1/942/2RBR/M9280-002/07-10-90/mfg (e) This Agreement supersedes any prior agreements, nsrgotiations and communications, oral or written, and contains the entire agreement between the parties hereto with respect to the subject matter hereof. This Agreement may not be modified in any respect whatsoever.,, or rescinded, in whole or in part, except by written instrument executed by the owners of the real property affected by this Agreement, and recorded in the Official Records of Orange County, California. (f) The parties hereto shall cause this Agreement to be recorded in the Official Records of Orange County, California. (9) The parties hereto agree that if there are any mortgages or deeds of trust which presently encumber the Servient Tenement, Grantor will cause the holder of such mortgages) or deed(s) of trust to execute and deliver to Grantee concurrently with the delivery of this Agreement a Lender's Consent in recordable form substantially in the form Of Exhibit "O" attached hereto. (h) All exhibits attached to this Agreement are hereby incorporated by this reference. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed upon the date and year first above written. "Grantor" "Grantee" R1/942/2RBR/Y9280-002/08-06-90/mfg U 4NELYVi► CAL NNE VAN CALCAR -4- STATE OF CALIFORNIA ss. COUNTY OF 11) Jn S I, a 1990, before me, the undersigned, aVNotary Public in and for said State, personally appeared NELLY JAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. hand and official seal. IFAI '91 100 owl&" •www RMI A1O - DONYtl0 I VINtl0iYwJ • 7iia0J ttly10NG Z13S d a21VN43g 11V3S11VIDWAO Notary Public in and r said State STATE OF CALIFORNIA ) ss. COUNTY OF ) On 1990, before me, the undersigned, a otary Public in and for said State, personally appeared YVONNE VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. RSEAL B CALIFORNIAFO BERNANARRDD F SE nOTRRY PUBLIC • CALIFORNIA O&RIMC Ty Notary Public in and r said State W coram. **he* OCT 1% 1992 STATE OF CALIFORNIA ) as COUNTY OF _ ) 0.1990, before me, the undersigned, a Notary Public in and for said State, personally appeared MARILYN J. SALENE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. :r.r:r.:;, 1 SUZ Notary Public in andX said State RI/942/ZRBR/N9260-002/07-10-90/mfg STATE OF CALIFORNIA ) ss. COUNTY OF On �/y << 1990, before me, the undersigned, aNo— tafy Publ 'C n d for said State, personally appeared RONALD JACKSON, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. f ,. Notary Public in and for said State 'KJfd ,•C,L 4N::I6F CBBl:YY My Comm. Exa. June 7.1981 aM R1/942/2RBR/N9280-002/07-18-90/mfg [To be Supplied] EXHIBIT A THAT PORTION OF LOT D TRACT NO. 919, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. AS SHOWN ON A MAP RECORDED IN BOOK 29 PAGES 31 TO 34 INCLUSIVE OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF THE STREET ADJOINING SAID LAND ON THE SOUTH, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT, SOUTH 150 00' EAST 127.72 FEET FROM THE NORTHWEST CORNER OF SAID LOT,; THENCE SOUTH 890 00' 00" EAST 62.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 890 00' 00" WEST 62.63 FEET; THENCE SOUTH 150 00' 17" EAST 79.68 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE EASTERLY ALONG THE CURVED SOUTHERLY LINE OF SAID LOT a0 THE MOST WESTERLY CORNER OF THE LAND VACATED BY RESOLUTION NO. 5494, OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A COPY OF WHICH WAS RECORDED NOVEMBER 7, 196: 1- BOOK 5905 PAGE 269. ^F OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOu'-"i 640 37' 18" EAST 44.44 FEET, EASTERLY 37.69 FEET ALONG A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 25.00 FEET; AND NORTH 280 59' 30' EAST 45.53 FEET TO THE MOST EASTERLY CORNER OF SAID VACATED LAND; THENCE NORTH 310 23' 00" WEST 117.85 FEET; THENCE SOUTH 650 18' 30" WEST 55.00 FEET TO THE TRUE POINT OF BEGINNINn_ A PORTION OF SAID LAND IS SHOWN ON A MAP FILED IN BOOK 24 PAGE 6 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. R1/942/2RBR/W9260-002/07-18-90/mfg LEGAL DESCRIPTION Ot D-iMINAN, '''2' :24EN (To be Supplied] PARCEL 1: That portion of Lot "0" of Tract 919, in the City of Newport Beach, as per map recorded in Book 29. Pages 31 to 34, of Miscellaneous Maps, 1n the office of the County Recorder of said County. lying Northwesterly of the fol- lowing described line: Beginning at a point on the Southwesterly line of said Lot D, South 15" 00' 17" East 127.72 feet from the Northwesterly corner of said Lot; thence Nor;:. 89" OU' 00" East 62.63 feet; thence North 65" 18' 30" East 55 feet; thence North 50" 18' 30" East 84.56 feet to a point in the Northeasterly line of said Lot. PARCEL 2: Lot D of Tract 919, in the City of Newport Beach. as shown on a map recorded in Book 29, pages 31 to 34, inclusive, of Miscellaneous Maps, records of Orange County, California. EXCEPT THEREFROM that portion of said Lot D lying Northwesterly of the follow- ing described line: Psginning at a point on the Southeasterly line of said Lot December, South JS - 00' 17" East, 127.72 feet from the Northwesterly corner of said Lot; thence North 89" 00' 00" East 62.63 feet, thence North 65" 18' 30" East 55 feet; thence 500 ofsaidNLot', (said8point being distant o South 290 331 20"the Easto173.44terlline feet from the most northerly corner of said Lot D.) ALSO EXCEPT THEREFROM that portion of said Lot D described as follows: Beginning at a point on the Southwesterly line of said Lot "D" South 15° East 127.72 feet from the Northwesterly corner thereof; thence continuing South 15 00 17 East along the Southwesterly tine of said Lot, 79.68 feet to the Southwest corner thereof, said Southwest corner being a point on a curve concave Southwesterly, having a radius of 409.51 feet, a radial to said point bears North 30" 35' 35" East; thence Southeasterly along the arc of said curve, and along the Southeasterly line of said Lot "D" through a central angle of 40 09' 25" a distance of 29.71 feet to the beginning of a reverse curve concave Northerly, having a radius of 96.60 feet, a radial to which point bears South 34 45100" West; thence Southeasterly and Easterly along the arc of said curve through a central angle of 840 06' 00" a distance of 141.60 feet; thence leaving the boundary line of said Lot "D", North 31" 23' 00" West 117.85 feet; thence South 65" 18' 30" West 55.00 feet; thence South 89" 00' 00" West 62.63 feet to the point of beginning. R1/942/2RBR/w9280-002/07-18-90/mfg BL OGr Slip MOOM F. 30 EXHIBIT 'A ASENENT IMOSE PORTIOA:f OF Lor 'D' a� TRACT MR/ we. IN THF CITY OF /ENPOAr BEACH, COUYr/ OF ORANGE, STATE OF CALIFORNIA, AS SHOY// OH A HAP RFCONDEO IN BORA ?3, PAGES JJ fWOWH 34 INCLUSIL'E OF .N/SCELLAMFLY.LS NAPS MEC041S 01 ORNMhi COLA/ll, AAP MLWF PARTICULARLY OfSLYlIBED AS FOIL OYS - EASEMENT FOR PARCEL J OF PARCEL RAP W. 88-JJl BEGIANTAS Ar INE MVrhW$r C~R OF PARCEL 1 OF PARCEL /NP I/O 88-111, IN AF CITY OF AENPW BEACH. COWrr OF ORANGE, $rA IE OF CALIFORNIA, AS SMOw av A MAP AECOROED It.'SO& Z37. PACES JS AAD J6 OF PARCEL MAPS, RECORDS OF SAID ORA/KE CGR/rr. FREVDE SOUTH 15.00'17' EAST, ALONG MT WSTFALY LfAE OF SATO LOT '0', A DISTAMYE OF ZS. 00 EEr; 11ENCE W9M 74.59'43' EAST, AT RIGHT ANGLES 10 SAID NESTENLY LIAF. A DISTANCY OF 6.00 Feer: THENCE WRTM 15.00'!7• NEST, PARALLEL WIN SAID NESTfRLY LIMB. A OIS7ANCF OF 10.00 FEET; rht?&T NORTH 86.78'37' EAST, A DISTANCE OF $6.95 FEET TO AN lJ/7ERSECTION BIrH TMF SOUM- EASIMLY PR0LCLN6AlfOv OF TIF CAWAMV A70PERTY GIA£ OF PARCELS 1 AND 7 M .SAID PARCEL MAP M9. 08-Ill; IMENCE NOR1N 70•JI'f!' iFS7. ALONE SAM MOM rION, A DISTANCE OF 11.13 TO AAE SOUZAERLr CCIMW CORNER OF SAID PARCELS J AND 2 OF SAID PARCEL MAP; &ENCe SOUTH 89.00'00' NEST, ALOHS IME SOUTMW Y LNE OF SAID PARCEL J. A OISIANCE OF 6Z. 6J' IBRMIA'ATINS AT TNF PoINI OF 8F6INNIW. EASEAENT FOR PARCEL Z OF PARCEL NAP AV. 88-Ill :- OF41ANINS AI NE SOYTIRESr COZIER OP PARCEL 7 OF PARCEL R4P M. 8S-111, IN TRE CITY OF AEN•GLRT BEACH, CYYfVrY OF ORANGE, STA IE OF CALIFORNIA, AS SHOW OV A NAP RFCONOE9 III BOOP 137, PAGES JS ALD 36 OF PARCEL MAPS, RECORDS OF SAID ORAMSE CO-Wry; HENCE SCUM 7OAJB'lI' NEST. ALONG RE SOUI/ERLY PROLOHOATION OF TME CCVOPoN PROPERTY LIRE OF PARCELS 1 RAD Z W SAID PARCEL MAP N0. 00-111, A DISTANCE OF II. ZJ HENCE AORTN 06.70'57' EAST, A DISWICE OF 43.05 FEET; RERKE AWAY 5.44'16' EAST, A 0I57ANCE OF 31.07 FEET TO rRE SOUTJ@ASrERLY CoaER OF SAID PARCEL 7 OF SAM PARCEL RAP AO. 88-IJJ; TAENCE SOUTH 65•!8'30' AE57, ALOAG IJE SOWWRLY LINE OF SAID PARCEL Z. A OIS74NCF OF 55.00 FEFT, TOWINATIN6 AT IAF POINT O< BE6INVIN6. EASE'E.NT FOR PARC£: 4 OF PARCEL NAP Ar 89-111 BEGINNAG AT THE SWNEASI COME:" -- a'RIWL 7 OF PARCEL MAP N0. 00-111. 7V Nk CITY O' AFWORr BEACH, COLWTY OF ORANGE, STATE OF CALIFORNIA, AS &vw ,:. A MAP RFLMOEO IN BOAk ZJ7, PAGES J5 AMD 36 OF PARCEL MMS, RECORDS OF SAID ORAAW CouvrY; HENCE SWrH JJ•ZJ'ZZ' FAST, ALONE 1/E SWINWSTERLY LIME OF PARCEL 4 O' SAID PARCEL MAP AD. 08-II1, A MrANCE OF 117.87 FEET TO W SUM COMER OF SAID PARCEL4,' 7MEVCF MR9TH 47'45 14' NEST, A DISIANCE OF 95.00 FEF: HENCE MORIN 5.44'!6' EAST, A DISTANCE OF Jf.OZ FEET MANINATIN6 AT IW P,,mr O< BEGI7WUO. / / r u' SU9 _ l_ r/` ' JEFF /y MI( Er, L.S. 7953 EXP. MM192. * Ay 4RLE! ✓ 835 �glEOF CALIIOp�s [To be Supplied] R1/942/2RBR/W9280402/07-18-90/mfg a�/ } RECORIJING REQUESTFD BY s 9O=�R��3 SOUTH COAST TITLE COMPANY RECORDING REQUESTED BY nECORDED IN OFFICIAL RECORDS AND WHEN RECORDED MAIL TO: OF ORANGE COUNTY. CALIFORNIA 2:30 ALLEN, MATKINS, LECK, GAMBLE & P.M. NOV 61990 MALLORY 18400 Von Kerman, Fourth Floor $7i, Irvine, California 92715 p Q �0 ATTN: Gary S. McKitterick, Esq. �t� OM (Above Space for Recorder's Use Only) This "ocument kited :or ra:erd.na by SOoth Coast T.I'e CLmra y Cj,AU_OF EASEMENT AGREEMENT as an ac: ommo±a• on on'y. It has not boon exam.ned as to Its execution w u to Its effect on the tilde, p� This GRANT OF EASEMENT AGREEMENT ("Agree;—nf:") is made J as of this 31 day of August 1990, by and between NELLY VAN CALCAR, an individual, YVONNE VAN CALCAR, an individual and MARILYN J. SALENE, an individual (collecti•.,iy, "Grantor"), and TIMOTHY DAVEY, an individual ("^rantee"). ,Vn BSCi�AL&� A. Cantor owns that certain real property described in }l;;.b_it „"^.,:r.tached hereto and by this reference incorporated herein tthe "Servient Tenement"). B. Grantee owns that certain real pro erty which is situated adjacent tc the Servient Tenement, which is more particularly described in Exhibit "B" attached hereto and by this reference incorporated herein (the "Dominant Tenement"). The Dominant Tenement and Servient Tenement sometimes are referred to individually as a "Parcel" and collectively as the "Parcels." C. Grantee desires to acquire from Grantor, and Grantor is prepared to convey to Grantee, an easement for view over and across the Servient Tenement for the benefit of the Dominant Tenement. NOW, THEREFORE, in consideration of the foreqoing recitals and the mutual covenants and conditions .:_it:::after oet forth, and for other good and valuable consideration, the receipt and suf'''- which are hereby acknowledged, the parties hereby agree as follows: RI/941/2RSR/W9280-002/07-19-90/ef0 i. Qr_ant Qf VieW .a_SeffiUl. Grantor hereby grants Grantee a perpetual, exclusive easement and incidents thereto for the benefit of and appurtenant to the Dominant Tenement for the-urposes of light, air atld ,iew ("View Easement") into, through, over and abo"c the Air Space, as defined in Paragraph 2 hereof. 2. �venant Regardina Airspar&. Grantor hereby represents, warrants and covenants to Grantee that in no event shall Grantor (a) construct or install (or permit to be constructed or installed) any improvements on the Servient Tenement; or (b) reconstruct the improvements currently existing on the Servient Tenement; or (c) allow trees, hedges, shrubs or other similar plants to be located on the Servient Tenement (collectively, "Obstruction"), to a height in excess of*forty.eighty-nine�t( 40.89 ) feet ("Height Limit"), as measured from the street at the adjacent corner of Riverside Avenue and Avon Street. The vacant air space over the entre Servient Tenement located above the Height Limit shall be referred to herein as the "Air Space." Any Obstruction existing or located on the F.r)perty in violation of the terms and conditions of this Paragraph 2 shall be an unauthorized interference with Grantee's View Easement and shall be removed immediately by Grantor on demand at Grantor's sole cost and expense. The failure of Grantee to require the removal of an Obstruction shall in no way be deemed a waiver of Grantee's right to require such removal. 3. Run With the Land. The obligations, rights and roqt-.^,ions ser north in tha_. Agreement with respect to Lov, c.;:..:. and the owner thereof will directly benefit or burden, as applicable, the other Parcel, shall run with each Parcel, and shall be b'.,ding upon the parties hereto and their successors and assigns. Every individual or entity who now r hereafter owns or acquires any right, title or interest in or to any Parcel oz portion thereof is and shall he conclusively deemed to have consented and agreed to every obligation or reo "Lvvidcd for herein, whether or not any referen— to tti!.is contained in the instrument by which Luch individual or entity acquired an interest in the Parcel. 4. !tpdicati" . The provisions of this Agreement shall not be deemed to constitute a dedication for public use nor create any rights in the general public. S. Attorneys' gggq. In the event either party hereto, or their successors or assigns, brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of, or any other action arising out of, this Agreement or *not to exceed existing roof of approximately 40.89' above mean sea level. R1/941/2RBR/M9280-002/07-18-90/mfg the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and reasonable costs incurred in such action or proceeding, in addition to any other damages or Lalief awarded. rAeneral Provision - (a) Any provisions of this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain in full force and effect. (b) Time is of the essence. (c) This Agreement shall be construed in accordance with and governed by the laws of the State of California. (d) This Agreement nial he executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one instrument. (e) This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties hereto with rQspect to the subject matter hereof. This Agreement may not be modified in any respect whatsoever, or rescinded, in whole or in part, except by written instrument executed by the owners of the real property affected by this Agreement, and recorded in the Official Records of Orange County, California. (f) The parties hereto shall cause this Agreement to be recorded in the Official Records of Orange County, California. (g) The parties hereto agree that if there are any mortgage:: or deeds of trust which presently encumber the Servient Tenement, Grantor will cause the holder of such mortgage(s) oi deed(s) of trust to execute and deliver to Grantee concurrently with the delivery of this Agreement a Lender's Consent in recordable form substantially in the form of Exhibit "C_ attached hereto. -3- R1/941/2RBR/M9280-002/oi-1e-90/mfg (h) A11-xhibits attached to this Agreement are hereby incorporated )y this reference. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed upon the date and year first above written. "Grantor" KELLY AN CALCAR i C/, �- OHNE VAN CALCAR NAR LYN �E "Grantee" TIMOTHY AVEY -4- R1;941/2RBR/N9280-002/07-18-90/mfg STATE OF CALIFORNIA ) ss. COUNTY Or _-) On 1990, before me, the undersigned, a otar7 ?ublic in and for said State, personally appeared NELLY VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. w NE y hand and official seal. ` � «, pFt:IGIAL SEAL f ' BERNARD F SELZ y;� '1; pOTALY hu BGC • CAU:ORNIA >, ." ORANG; 7UNIY Notary Public in and E y said State My comm. esD6es OC1 la, 1992 , STATE OF CALIFORNIA 3 ss. COUNTY OF ) OnZ 1990, before me, the undersigned, a Atary Public in and for said State, personally appeared YVONNE VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. Notary Public in and fo aid State 7y STATE OF CALIFORNIA ) ss. COUNTY OF ) On ( r , 1990, before me, the undersigned, a lfotary Public in and for said State, personally appeared MARILYN J. SALENE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and 0OFFICIAL SEAL BERNARD f SEIZ m NOTAR'f PUBLIC - CALIFORNIA i My Coma. tnites act It 19W R1/941/ZRBR/M9280-002/07-18-90/mfg official seal. Notary Public in and fnAr said State ff -5- STATE OF CALIFORNIA ) ss. COUNTY OF _ ) On g 1990, before me, the undersigned, a N6tary Public in and for said State, personally appeared TIMOTHY DAVEY, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. •r�illll WITNESS my hand and official seal. My Comm. Exp jf 7. 1091 Notary Public in and for said State -6- A I /941/2RBR/W9280-002/07-18-90/mfg 6_ AI/941/2RBR/M9280-002/07-18-90/mfg (To be Supplied) EXHIBIT A THAT PORTION OF LOT D TRACT NO. 919, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. AS SHOWN ON A MAP RECORDED IN BOOK 29 PAGES 31 TO 34 INCLUSIVE OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF THE STREET ADJOINING SAID LAND ON THE SOUTH, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT, SOUTH 150 00' EAST 127.72 FEET FROM THE NORTHWEST CORNER OF SAID LOT THENCE SOUTH 890 00' 00" EAST 62.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE "NORTH 890 00' 00" WEST 62.63 FEET; T.�::CE SOUTH 150 00 17 EAST 79.68 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE EASTERLY ALONG THE CURVED SOUTHERLY LINE OF SAID LOT TO THE MOST WESTERLY CORNER OF THE LAND VACATED BY RESOLUTION NO. 5494, OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A COPY OF WHICH WAS RECORDED NOVEMBER 7, 1961 IN BOOK 5905 PAGE 269, OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOUTH 640 37' 18" EAST 44.44 FEET, EASTERLY 37.69 FEET ALONG A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 25.00 FEET; AND NORTH 280 59' 30' EAST 45.53 FEET TO THE MOST EASTERLY CORNER OF SAID VACATED LAND; THENCE NORTH 310 23' 00" WEST 117.85 BLET; THENCE SOUTH 650 18' 30" WEST 55.00 FEET TO THE TRUE POINT OF BEGINNING. A PORTTAN OF SAID LAND IS SHOWN ON A MAP FILED IN BOOK 24 PAGE 6 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. R1/941/2RBR/W9280-002/07-18-90/mfg 1•BtrAk. 41"<SCRI.kT,�2N._0� 12�MINAflT_3EIi1RMEt?B i'*:, F.e Supplied) PARCEL 1: That portion of Lot °D" of Tract 919, in the City of Newport Reach, as per map recorded in Book 29. Pages 31 to 34, of Miscellaneous Maps, in the office of the County Recorder of said County, lying Northwesterly of the fol- lowing described line: Beginning at a point on the Southwesterly line of said Lot D, South 15° 00' 17° East 127.72 feet from the Northwesterly corner of said Lot; thence North 890 00' 00' East 62.63 feet; thence North 650 18' 30, East 55 feet; thence North 500 18' 301 East 84.56 feet to a point in the Northeasterly line of said Lot. PARCEL 2: Lot 0 of Tract 919, in the City of Newport Beach, as shown on a map recorded in Book 29, pages 31 to 34, inclusive, of Miscellaneous Maps. records of Orange County, California. EXCEPT THEREFROM that portion of said Lot D tying Northwesterly of the follow- ing described line: Beginning at a point on the Southeasterly tine of said Lot December, South 150 00' 17" East, 127.72 feet from the Northwesterly corner of said Lot; thence North 89° 00' 000 East 62.63 feet, thence North 65° 18' 30• East 55 feet; thence North 50° 18' 30• East 84.56 feet to a point in the Northeasterly line of said Lot, (said point being distant South 290 33' 20" East 173.44 feet from the most northerly corner of said Lot D.) ALSO EXCEPT THEREFROM that portion of said Lot 0 described as follows: Beginning at a point on the Southwesterly line of said Lot 'D' South 150 00' 17• East 127.72 feet from the Northwesterly corner thereof; thence continuing South 15° 00' 17' East along the Southwesterly line of said Lot, 79.68 feet to the Southwest corner thereof, said Southwest corner being a point on a curve concave Southwesterly, having a radius of 409.51 feet. a radial to said point bears North 30° 35' 35" East; thence Southeasterly along the arc of said curve, and along the Southeasterly line of said Lot •D• through a central angle of 40 09' 25" a distance of 29.71 feet to the beginning of a reverse curve concave Northerly. having a radius of 96.60 feet. a radial to which point bears South 340 45'001 West; thence Southeasterly and Easterly along the arc of said curve through a central angle of 840 06' 000 a distance of 141.80 feet; thence leaving the boundary line of said Lot 000, North 310 23' 00' West 117.65 feet; thence South 65° 18' 301 West 55.00 feet; thence South 899 00' 00" West 62.63 feet to the point of beginning. RI/941/2RBR/W9280-002/07-1:: 'aJ mfg 90�5880T4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: ALLEN, MATKINS, LECK, GAMBLE h MALLORY 18900 Von Kerman, Fourth Floor Irvine, California 92715 $23.00 ATTN: Gary S. McKitterick, Esq. C1 RECORDING REQUESTED BY SOUTH COAST TITLE COMPANY RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA 2:30 P.M. NOV 61990 ,a Q. `A� RECORDER (Above Space for Recorder's Use Only) This document filed for re°erding by b°inle Cc-;:- I T,: c Company GRANT OF EASE AGREEMENT ee°m mn• a nn only. It has not 1 .:m ,: . .. I° Its execph°n or 45 to 01 °I:°:1 on the title. This GRANT OF EASEMENT AGREEMENT ("Agreement") is made as of this 31 day of August , 1990, by and between NELLY VAN CALCAR, an individual, YVONNE VAN CALCAR, an individual and MARILYN J. SALENE, an individual (collectively, "Grantor"), and HAROLD G. WOODS, JR., an individual, and SHARON KELLY WOODS, an individual, husband and wife (collectively, "Grantee"). R a C 3 I A h a! A. Grantor owns that certain real property described in Exhibit "A" attached hereto and by this reference incorporated herein (the "Servient Tenement"). B. Grantee owns that certain real property which is situated adjacent to the Servient Tenement, which is more particularly described in Exhibit "B" attached hereto and by this reference incorporated herein (the "Dominant Tenement"). The Dominant Tenement and Servient Tenement sometimes are referred to individually as a "Parcel" and collectively as the "Parcels." C. Grantee desires to acquire from Grantor, and Grantor is prpp?red to convey to Grantee, certain easements for access, ingress and egress, landscaping and view over and across the Servient Tenement for the benefit of the Dominant Tenement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and conditions hereinafter set forth, and for other good and valuable consideration, the rac-ipt and sufficiency of whit), are hereby acknowledged, the parties hereby agree as follows: R 1/899/2RBR/N9280-002/07—I8-90/etfg l:�ssme�t�_fu�_.Arsassl IngrRiz— Egress an view_. (a) Grants of Easement. Grantor hereby grants to Grantee perpetual, exclusive easements and rights-of-way, and incidents thereto, for the benefit of and appurtenant to the Dominant Tenement over such portions of the Servient Tenement and for such purposes as are more particularly net forth below. The easements granted hereinbelow shall be referred to collectively as the "Easements". (i) Amoss Easement. An easement ("Access Easement") for the purposes of pedestrian access, ingress and egress over, under and across that portion of the Servient Tenement as is more particularly described in Exhibit "C" and depicted on Exhibit 11C-1" attached hereto ("Easement Area"). (ii) Landgpe and Improvement Easement. An easement over, under and across the Easement Area ("Landscape and Improvement Easement") for the purposes of installation, maintenance, replacement, alteration and restoration of landscaping and improvements, structures and/or appurtenances within the Easement Area, including, but not limited to, benches, fountains, sprinklers, pipes, trellises, fences, stairs, a s tellite dish, or a gazebo or similar structures (collectively, "Improvements"). (iii) View Easement. An easemcr.. t`View Easement") for the purposes of light, air and view into, through, over and above the Air Space, as defined in Paragraph 3 hereof. 2. Maintenance. All costs and expenses associated with the maintenance, restoration, repair, cleaning or landscapiny of the Easement Area and the improvements, as applicable, shall be borne by Grantee. 3. C_Qvenant Regarding Airspace. Grantor hereby represents, warrants and covenants to Grantee that in no event shall Grantor (a) construct or install (or permit to be constructed or installed) any improvements on the Servient Tenement; or (b) reconstruct the improvements currently existing on the Ser%ient Tenement; or (c) allow trees, hedges, shrubs or other similar plants to be located on the Servient Tenement (collectively, "Obstruction"), to a height in excess of *forty.eighty-nine ft.( 40.89 ) feet ("Height Limit"), as measured from the street at the adjacent corner of Riverside Avenue and Avon Street. The vacant air space over the entire Servient Tenement located above the Height Limit shall be referred to herein as the "Air Space." Any Obstruction existing or located on the Property in violation of the terms and *not to exceed existing roof of approximately 40.89' above mean 2- sea level. - R1/899/2RBR/M9280-002/07-18-90/mfg conditions of this Paragraph 3 shall be an unauthorized interference with Grantee's View Easement and shall be removed immediately by Grantor on demand at Grantor's sole cost and expense. The failure of Grantee to require the removal of an Obstruction shall in no way be deemed a waiver of Grantee's right to require such removal. 9. pun Wyk-tb&-Jan-d. The obligations, rights and restrictions set forth in this Agreement with respect to each Parcel and the owner thereof will. directly benefit or burden, as applicable, the other Parcel, shall run with each Parcel, and shall be binding upon the parties hereto and their successors and assigns. Every individual or entity who now or hereafter owns or acquires any right, title or interest in or to any Parcel or portion th4Lreof is and shall be conclusively deemed to have consented and agreed to every obligation or restriction provided for herein, whether or not any reference to this instrument is contained in the instrument by which such individual or entity acquired an interest in the Parcel. 5. Dedication. The provisions of this Agreement shall not be deemed to constitute a dedication for public use nor create any rights in the general public. 6. Attorneys' Fees. In the event either party hereto, or their v.17cessors or assigns, brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of, or any other action arising out of, this Agreement or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and reasonable costs incurred in such action or proceeding, in addition to any other damages or relief awarded. General Provisions. (a) Any provisions of this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain in full force and effect. (b) Time is of the essence. (c) This Agreement shall be construed in accordance with and governed by the laws of the State of California. (d) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one instrument. -3- R1/899/2ROR/M9280-002/07-78-90/mfg (e) This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire "greement between the parties hereto with respect to the sub, ct matter hereof. This Agreement may not be modified in any respect whatsoever, or rescinded, in whole or in part, except by written instrument executed by the owners of the real property affected by this Agreement, and recorded in the Official Records (,' Orange County, California. (f) The parties hereto shall cause this Agreement to be recorded in the Official Records of Orange County, California. (g) The parties hereto agree that if there are any mortgages or deeds of trust which presently encumber the Servient Tenement, Grantor will cause the holder of such mortgage(s) or deed(s) of trust to execute and deliver to Grantee concurrently with the delivery of this Agreement a Lender's Consent in recordable form substantially in the form of Exhibit "f)" attached hereto. (h) All exhibits attached to this Agreement are hereby incorporated by this reference. IN WITNESS WHEREOF, the parties hereto have caused this Aqreement to be executed upon the date and year first ahnve written. Qry_ "Grantor" rte! LLY AN CALCAR "Grantee" R1/899/2RBR/H9280-002/4T-18-90/etg (� n� SHARON KELLY W006S -4- STATE OF CALIFORNIA ] COUNTY OF O✓JI-- ) SS. On_ _ 1990, before me, the undersigned, otary Public in and for said State, personally appeared NELLI VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. ('— OFFICIAL SEAL B'RtJA2D F SFIZ r _ A •�-i c,.• p � LOTRc! h'J-L � - C/•7J� :•R�." UkF!IGE 121UM1T" Notary Public in and or said State Aty n.n•m ;•,t. OGT k 419 STATfi OF CALIFORNIA ) ss. COUNTY OF ) On t ;q, 1 1990, before me, the undersigned, a Notary Public in and for said State, personally appeared YVONNE VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. Notary Public in and fovr said State STATE OF CALIFORNIA ) ss. COUNTY OF ) On S a �� 1990, before me, the undersigned, a tary Public in and for said State, personally appeared MARILYN J. SALENE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. ppp WITNESS my hand and official seal. y UFSEAL BERNARD F SEtZ m pOTkkOtWIPUBLIC ECIDUMFORNIA Notary Public in and fo aid State oleln9c ooumr hh comm. a0m OCT It 1992 , -5- R1/899/2ROR/Ng280-002/07-18-90/mfg STATE OF CALIFORNIA ) ss. COUNTY OF ��:�__ ) O.� r. 1.990, before me, the undersigned, a Notary Public in and for said State, personally appeared HAROLD G. WOODS, JR., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instt acknowledged to me that he executed the same C2 -A' v.MA F.STMHA TA:1LL1 Y U." P"'. aI I", WITNESS my hand and official seal. a 01 -ME C41nr June 7,1991 Notary Public in and for said State STATE OF CALIFORNIA ) COUNTY OF ) On ' 1990: before me, the undersigned, a N6t&ry Public in and for said State, personally appeared SHARON KELLY WOODS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same. 0„�„«U ESTHEA TAA' I WITNESS my hand and official seal. PrvKuwamu Ply Comm. F.P. Jung 7, 1991 No a'ry Public in and for said State -6- R1/899/2RBR/W9280-002/07-18-90/mfg 1{t.VriL LEay,'R�.C.�i�. �SEV�,j3.T TENEMEN3' (To be Supplied) EXHIBIT A THAT PORTION OF LOT D TRACT NO. 919, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. AS SHOWN ON A MAP RECORDED IN BOOK 29 PAGES 31 TO 34 INCLUSIVE OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF THE STREET ADJOINING SAID LAND ON THE SOUTH, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT, SOUTH 150 00' EAST 127.72 FEET FROM THE NORTHWEST CORNER OF SAID LOT,; THENCE SOUTH 890 00' 00" EAST 62.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 890 00' 00" WEST 62.63 FEET; THENCE SOUTH 150 00' 17" EAST 79.68 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE EASTERLY ALONG THE CURVED SOUTHERLY LINE OF SAID LOT TO THE MOST WESTERLY CORNER OF THE LAND VACATED BY RESOLUTION NO. 5494, OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A COPY OF WHICH WAS RECORDED NOVEMBER 7, 1961 IN BOOK 5905 PAGE 269, OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOUTH 640 37' 18" EAST 44.44 FEET, ^TERLY 37.69 FEET ALONG A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 25.00 FEET; AND NORTH 280 59' 30' EAST 45.53 FEET TO THE MOST EASTERLY CORNER OF SAID VACATED LAND; THENCE NORTH 310 23' 00" WEST 117.85 FEET; THENCE SOUTH 650 18' 30" WEST 55.00 FEET TO THE TRUE POINT OF BEGINNING. A PORTION OF SAID LAND IS SHOWN ON A MAP FILED IN BOOK 24 PAGE 6 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. RI/899/2RBR/M9280-002/07-18-90/nig UUAL_DUCRIPTi4N OF VQMINANT 11349M£NT iTo be Supplied) PARCEL 1: That portion of Lot "D" of Tract 919, in the City of Newport Beach, as per map recorded in Book 29, Pages 31 to 34, of Miscellaneous Maps, in the office of the County Recorder of said County, lying Northwesterly of the fol- lowing d..uribed il"" Beginning at a point on the Southwesterly line of said Lot D. South 15' 00' 17, East 127.72 feet from the Northwesterly corner of said Lot; thence North 89' 00' 00" East 62.63 feet; thence North 65' 18' 30' East 55 feet: thence North 50' 18' 30" East 84.56 feet to a point in the Northeasterly line of said Lot. PARCEL 2: Lot D of Tract 919, in the City of Newport Beach. as shown on a map recorded in Book 29, pages 31 to 34, inclusive, of Miscellaneous Maps, records of Orange County, California. EXCEPT THEREFROM that portion of said Lot D lying Northwesterly of the follow- ing described line: Beginning at a point on the Southeasterly line of said Lot December. South 150 00' 171 East, 127.72 feet from the Northwesterly corner of said Lot; thence North 89' 00' 00" East 62.63 feet, thence North 65' 18' 30' East 55 feet; thence North 50' 18' 30" East 84.56 feet to a point in the Northeasterly line of said Lot. (said point being distant South 29" 33' 20" East 173.44 feet from the most northerly corner of said Lot 0.) ALSO EXCEPT THEREFROM that portion of said Lot D described as follows: Beginning at a point on the Southwesterly line of said Lot 'D' South 15' 00' 17' East 127.72 feet from the Northwesterly corner thereof; thence continuing South 15' 00' 17' East along the Southwesterly line of said Lot, 79.68 feet to the Southwest corner thereof, said Southwest corner being a point on a curve concave Southwesterly, having a radius of 409.51 feet, a radial to said point bear: North 30' 35' 35" East; thence Southeasterly along the arc of said curve, and along the Southeasterly line of said Lot "D' through a central angle of 41 09' 25" a distance of 29.71 feet to the beginning of a reverse curve concave Northerly, having a radius of 96.60 feet, a radial to which point bears South 34' 45'001 West; thence Southeasterly and Easterly along the arc of said curve through a central angle of 84" 06' 00" a distance of 141.80 feet; thence leaving the boundary line of said Lot "D", North 31' 23' 00" West 117.85 feet; thence South 65' 18' 30" West 55.00 feet; thence South 890 00' 00" West 62.63 feet to the point of beginning. R1/899/2ROR/M9200-002/07-18-90/mfg ItASEMENI Ot SCRIPTION INOSE PMIIONS OF LOf 4• M IMACI AG 919, N/ NE C17Y OF MEWORT REACH. CO: 71 IV ".W SfAfF OF CAL IFMA /A, 1s SlOW di A NAP NFCOROED J11 OOOA !0, PAGjf Jl IIQIUGH J4 1MCLtASlVF OF NISCFLLAJ4OJ1 HAPS Nf CONO5 Ji ORANGE COWIY, ANO NORE PARTICULARLY OF5MILF0 AS F&IOML - EASEMENT FOR PARCEL J OF PARCEL IMP 110 00-IfJ - BEGIAAIN6 Al ME SOUINW$r COWER a` PARCEL 1 OF PARCEL MAP NO OE -Ill, 111 T,E CII" OF Ancor BEACH, COLNIY OF ORANGE, LAW CE CALIFORNIA. AS SHOW ON A NAP RECO'WEO IN ROOK 111, PAGES 3S AAD 36 OF PARCEL PAPS. RECOROS OF SATO ORANGE COWfY. T/RVICE MUM 75.00'1/' EASY', AIOHG TW W,1IFRL"LIAf fA° SATO LOT 'O A DMIANC£ OF ?$.00 FfFT, T/ENCF N491H 14•SO'43• EAST, Al Rl6Ml ANGLES TO SATO WSIERLY lIM, A OISIANCE OF 6 00 FEET. MFNCE IMRM 76.00!!' PEST, PARALLEL MITH SATO MESIERLY LINE, A DISTANCE OF 10 00 Fffl, NEMCf 1*9fH 86•?8'S?• EASI. A NTSIANCE OF S6.0S FfE1 10 AN 1NIERSF6IIM/ YIM NE SOUP, EASIERL V PNOLON64 CIL' OF RE CMMMI PRLFERIY LINE OF PARCELS I AAD .1 11 SATO PARCEL NAP Aq M -Ill. 1HFNCE MIRTH 70.10'!1. LEST, ALL'G SAID PROLMK,AIIMI, A DISTANCE OF 11.73' l0 THF SWRERLV COMOV CM lW OF SAID AD D PARCELS 1 A ? OF SAND PARCEL ANP; fiENCE SWM 60.00'00' YES/- ALAAG CNF SOUTHERLY LIAF OF SAID PARCEL I, A OISTAMCE OF 67.63' MAIM A7 INF PON,C OF B£GIANIAG. EASEMENT FM PARCEL P OF PAP - MAP W. 88-1_i 8E6IWIAW AI 111E SOUTHWSI COMER OF PARCEL ? OF PARCEL NAP W. 86-lll, IN TIE CITY OF ACMOORT BEAU!, CC90IlY LF ORAMSF. SCA IF OF CAL IFOW/A, AS SROM/ Mf A RAP AFCORDEO IN BOOK W. PAGES JS AAO M OF PARCEL MAPS. RECORDS OF SATO ORANGE CWIIY. NEACE SOUTH 70•!6'!1 - -FST, ALOV6 TIt SOUIRERLY PROLONGATION OF 111E COVHON PRO'ERIr LIM M PARCELS 141,/ ? OF SA/f, PARCEL RAF NO 86-111. A 915FANCE OF u. 2J'; THENCE MORIM 86.76'37' EASY', A DIS/A10E OF 43.05 F'EEI; "HA,'£ MWIN 5•44'J6• EASI. A OISFANCE OF 31.0? FEET TO INC SOUNEASCfRLY CORDER OF SATO MA PARCEL 7 OF 591P PARCEL P AV. 00-ill,INCIKE SWAN 65.18'JO' YES7, ALOE ITE SOUINERLY LTA! OF SAID PARCEL 7, A 013r.KE OF SS 00 FEFT, TERNNM TING A7 TW P01NT LF BEGIMIING. EASEW117 FOR PARCEL 4 OF PARCEL RAP IV. PO -Ill - 8E611WING AI !MF SWREASf CVRAFR OF PARCEL I OF PARCEL MAP I.V. 80-111. fN RE CITY OF ACMCNI OEACN. COL'lY LF ORuAw, 57AIE OF CA.IFORI,IA, AS SHWMV OR A RAP RECOWEO IN BOOM ?3Y', PAGES 35 A/0 36 OF PARCEL RAPS, RECORDS OF SAID ORANGE COW7Y,' 1AE116E SWM JI.2J'Z?- EAST, ALAW THE SOUIRNESJERLV LINE OF PARCEL4 Or $4140 PARCEL RAP AV. 08-11J. A OISIUKE OF 1!7.87 FEET M NE SWM CON.fR OF SAID PARCEL 4, NAEM'E M1RN1 47'45'74 • NEST, A OISTAACE' OF 05.00 FEFT; IWAICLr MW7H 5.44'16- EAS!, A OISIANCE CF' 31.0? FEET IER/1Irmaw AT THE RRINT OF OEGIM"W. u - s0 ! IEEfRN!' I/. NI( ET, L.S. 7055 E1P. 67!0/0?. * 1, Js, J/ 'JfOf 01 OPH� F, �- - iii VT Cl PFUC IOH_OF EAMEL - BEA C-1 R1/899/2RBR/M9280-002/07-18-90/mfg 90=SOBOl5 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: ALLEN, MATKINS, LECK, GAMBLE 5 MALLORY 18400 von Karman, Fourth Floor Irvine, California 92715 S23.DD ATTN: Gary S. McKitterick, Esq. C1 RECORDING REQUESTED By SOUTH COAST TITLE COMPANY FIECORO-ED IN OFFIC;AL HECUCw$ (W MANGE COUNTY, CAUtOHNIA 2:30 P.M. Nov 61990 v4 a S4� RECORDER (Above Space for Recorder's Use 000 This document tiled for rocotding byf South Cost Two Company GRANT OF EASEMENT AGREEMENT I's.: "Irn:mo•:at.an only. it has not n:en ---- no t a- to its execution or as to 'is effect on the tine. This GRANT OF EASEMENT AGREEMENT ("Agreement") is made as of this 31 day of August. , 1990, by and between NELLY VAN CALCAR, an individual, YVONNE VAN CALCAR, an individual and MARILYN J. SALENE, an individual (collectively, "Grantor"), and ERNESTO CASTRO, an individual ("Grantee"). � Y'1 ((1 REQI IA It E: A. Grantor owns that certain real property described in Exhibit "A" attached hereto and by this reference incorporated herein (the "Servient Tenement"). D. Grantee owns that certain real property which is situated adjacent to the Servient Tenement, which is more particularly described in Ke kh t "D" attached hereto and by this refer-:nce incorporated herein (the "Dominbat Tenement"). The Dominant Tenement and Servient Tenement sometimes are referred to individually as a "Parcel" and collectively as the "Parcels." C. Grantee desires to acquire from Grantor, and Grantor is prepared to convey to Grantee, certain easements for access, ingress and egress, landsc—ping and view over and across the Servient Tenement for the benefit of the Dominant Tenement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: RI/9E0/2ROR/M9280-002/07-18-90/mai (a) Gyants of Ea5jeMent. Grantor hereby grants to Grantee perpetual, exclusive easements and rights-of-way, and incidents thereto, for the benefit of and appurtenant to the Dominant Tenement over such portions of the Servient Tenement and for such purposes as are more particularly set forth below. The easements granted hereinbelow shall be referred to collectively as the "Easements". (i) ASSegs-1;a-aemeat. An easement ("Access Easement") for the purposes of pedestrian access, ingress and egress over, under and across that portion of the Servient Tenemer•' 3s :s more particularly described in Eabibit= referred to herein as the "Air Space." Any Obstruction existing or located on the Property in violation of the terms and conditions of this Paragraph 3 shall be an unauthorized interference with Grantee's View Easement and shall be removed immediately by Grantor on demand at Grantor's sole cost and expense. The failure of Grantee to require the removal of an Obstruction shall in no way be deemed a waiver of Grantee's right to require such removal. 1. Ruin With the Land. The obligations, rights and res.trictions set forth in this Agreement with respect to each Parcel and the owner thereof will directly benefit or burden, as applicable, the other Parcel, shall run with each Parcel, and shall be binding upon the parties hereto and their successors and assigns. Every individual or entity who now or hereafter owns or acquires any right, title or interest in or to any Parcel or portion thereof is and shall be conclusively deemed to have consented and agreed to every obligation or restriction provided for herein, whether or not any reference to this instrument is contained in the instrument by which such individual or entity acquired an interest in the Parcel. 5. DedicatiDR. The provisions of this Agreement shall not be deemed to constitute a dedication for public use nor create any rights in the general public. 6. Attortlevs' Fees. In the event either party hereto, or their successors or assigns, brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of, or any other action arising out of, this Agreement or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and reasonable costs incurred in such action or proceeding, in addition to any other damages or relief awarded. (a) Any provisions of this tjreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain in full force and effect. (b) Time is of the essence. (c) This Agreement shall be construed in accordance with and governed by the laws of the State of California. -3- R1/940/2RORAM9290-002/0)-10-90/mai (d) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one inst.ument. (e) This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreen)rnt between the parties hereto with respect to the subject matter hereof. This Agreement may not be modified in any respect whatsoever, or rescinded, in whole or in part, except by written instrument executed by the owners of the real property affected by this Agreement, and recorded in the Official Records of Orange County, California. (f) The parties hereto shall cause this Agreement to be recorded in the Official Records of Orange County, California. (g) The parties hereto agree that if there are any mortgages or deeds of trust which presently encumber the Servient Tenement, Grantor will cause the holder of such mortgage(s) or deed(s) of trust to execute and deliver to Grantee concurrently with the delivery of this Agreement a Lender's Consent in recordable form substantially in the form of Exhibit "D" attached hereto. (h) All exhibits attached to this Agreement are hereby incorporated by this reference. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed upon the date and year first above written. "Grantor" Ae4 a ELLY V R �1 I Of %`•OHNE VAN CALCAR KU ILY E "Grantee" L.:NESTO CASTRO -4- R I/940/2RBR/w9280-002/07-18-90/mi STATE OF CALIFORNIA ss. COUNTY OF/��!"` ) On_ __ a.S �_9 y � _ 1990, before me, the undersigned, a otary 11 bll.c in and for said State, personally appeared NELLY VAN CALCAR, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. OFFICIAL SEAL BERNARp F SUZ o NOTAP"n'JBLPC-CALIFORN!A _ xcECOUPITY Notary Public in arA for said State My comm. up'vu OCT t! 1992 STATE OF CALIFORNIA ) ss. COUNTY OF ) On 21^ Ay U 1990, before me, the undersigned, ary Publid in and for said State, personally appeared YVONNE VAN CALCAR, personally known to me Yor proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. Notary Public in and Vr said State r {` STATE OF CALIFORNIA ) as. COUNTY OF On ��%�d 1990, before me, the undersigned, a otary Pu lic in and for said State, personally appeared MARILYN J. SALENE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. UFF1C1A.SEAL Notary Public in and fo said State BERNARD F SELZ o nOTAKY PUBLIC - CALIFORNIA ORANGE COUNTY My gamin. expires OCT 19, 1992 -S- R1/940/2RBR/W9280-002/07-18-90/mm1 On_6 199Q, undersigned, a N ary Pub,c in and for said appeared ERNESTO CASTRO, personally known to on the basis of satisfactory evidence) to be name is subscribed to the within instrument, me that he executed the same. [To be Supplied] EXHIBIT A THAT PORTION OF LOT D TRACT NO. 919, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. AS SHOWN ON A MAP RECORDED IN BOOK 29 PAGES 31 TO 34 INCLUSIVE OF MISCELLANEOUS MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF THE STREET ADJOINING SAID LAND ON THE SOUTH, DESCRIBED A3 A WHOLE AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT, SOUTH 150 00' EAST 127.72 FEET FROM THE NORTHWEST CORNER OF SAID LOT,; THENCE SOUTH 890 00' 00" EAST 62.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 890 00' 00" WEST 62.63 FEET; THENCE SOUTH 150 00' 17" EAST 79.68 FEET TO THE SOUTHWEST CORNER OF SAID LOT; THENCE EASTERLY ALONG THE CURVED SOUTHERLY LINE OF SAID LOT TO THE MOST WESTERLY CORNER OF THE LAND VACATED BY RESOLUTION NO. 5494, OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, A COPY OF WHICH WAS RECORDED NOVEMBER 7, 1961 IN BOOK 5905 PAGE 269, OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID LAND, SOUTH 640 37' 18" EAST 44.44 FEET, EASTERLY 37.69 FEET ALONG A CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 25.00 FEET; AND NORTH 280 59' 30' EAST 45.53 FEET TO THE MOST EASTERLY CORNER OF SAID VACATED LAND; THENCE NORTH 310 23' 00" WEST 117.85 FEET; THENCE SOUTH 650 18' 30" WEST 55.00 FEET TO THE TRUE POINT OF BEGINNING. A PORTION OF SAID LA14D IS SHOWN ON A MAP FILED IN BOOK 24 PAGE 6 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECCRDER OF SAID COUNTY. RI/940/2RBR/M9280-002/07-18-90/mmi LKQ.AS_.E5QR1.PTI9N_ 9f_ DDILUTANT—TENEMF.f1T (To be Supplied) PARCEL 1: That portion of Lot "D" of Tract 919. in the City of Newport Beach, as per map recorded in Book 29, Pages 31 to 34, of Miscellaneous Maps, in the office of the County Recorder of said County, lying Northwesterly of the fol- lowing described tine: Beginning at a point on the Southwesterly line of said Lot D. South 150 00' 17' East 127.72 feet from the Northwesterly corner of said Lot; thence North 890 00' 00" East 62.53 feet; thence North 651 18' 30" East 55 feet; thence North 500 18' 300 East 84.56 feet to a point in the Northeasterly line of said Lot. PARCEL 2: Lot D of Tract 919, in the City of Newport Beach, as shown on a map recorded in Book 29, pages 31 to 34, inclusive, of Miscellaneous Naps, records of Orange County, California. EXCEPT THEREFROM that portion of said Lot D lying Northwesterly of the follow- ing described line: Beginning at a point on the Southeasterly line of said Lot December, South 150 00' 17' East, 127.72 feet from the Northwesterly corner of said Lot' thence North 890 00' 00" East 62.63 feet, thence North 650 18' 30" East 55 feet; thence North 500 18' 30" East 84.56 feet to a point in the Northeasterly line of said Lot, (said point being distant South 29' 33' 20' East 173.44 feet from the most northerly corner of said Lot D.) ALSO EXCEPT THEREFROM that portion of said Lot D described as follows: Beginning at a point on the Southwesterly line of said Lot 'D" South 150 D0, 17" East 127.72 feet from the Northwesterly corner thereof; thence continuing South 16 00 170 East along the Southwesterly line of said Lot, 79.68 feet to the Southwest corner thereof, said Southwest corner being a point on a curve concave Southwesterly, having a radius of 409.51 feet, a radial to said point bears North 300 351 35" East; thence Southeasterly along the arc of said curve, and along the Southeasterly line of said Lot "D" through a central angle of 40 09, 25" a distance of 29.71 feet to the beginning of a reverse curve concave Northerly, having a radius of 96.60 feet, a radial to which point bears South 340 45100' West; thence Southeasterly and Easterly along the arc of said curve through a central angle of 840 06' 00' a distance of 141.80 feet; thence leaving the boundary line of said Lot "D", North 310 231 00" West 117.85 feet; thence South 650 18' 30" West 55.00 feet; thence South 890 00, 00' West 62.63 feet to the point of beginning. R1/940/2RBR/M9280-002/07-10-90/mni aio:: siAR •yceF /O C'AMlb!! 'A- LASFAvir bFSCR/Prrov TNO.S'F PMT14MS OF a07 0' CK IRACT AM 919. IN ME Cllr OF OFWPOVT BEACH, CG.11I W OAAHLE, SIA If W CAL MFORM/A, AS SHOWN ON A NAY HFCO.W1F0 IN 00� 10. PAWS JI IMMIN JA INKLUSIWE W MISCELLUf'OIAS MAPS NFCOMI W OHAM6F COLMY, Ala MARC PARTICMARLY OfSCRIBEO AS F0I LOWS - EASEMfN7 FOR PARCEL 1 W PARCEL MAF M 0B -III - BEGIANIN6 A/ INE SWIMWESl CMOER OF PARCEL I OF PARCEL MAP N0. W-lJl, I// ME CITY OF ASWORI BEAM, COMIY OF ORAAM. SI -Alf OF CALIFORNIA, AS SHOW ON A NAP RECOROED IN BORN 2J7, PAGES J5 AAD 16 OF PARCEL MAPS, RECOWOS Of SAID ORANSE COSVNY, TNEACE SWIM J37-00'47' EAST, At ON6 INE WESTERLY LIAE W SAID LO" 10', A DISTANCE OF 25 00 FEEL, THENCE AWN 74.39'43' EAST, Al RIGNI ANGLES TO SAID WESTFRLY LINE, A PIS/AWE OF 6.00 FEf7, rWf,,T TDMA, 15.00'17' WESI, PARALLEL WITH SAID WESTERLY LITE. A 0I57ANCE OF I$ OG FFCT, /HENCE MWIM 86-20'52- EAST, A 0/S7A/KC OF 56.93 FEET 10 AN I//ffN.RFC7ILV/ WIIA/ TAE SOUII/- EAS ERLY PROLONGA/IN/ OF TAE Cawiav PROPERLY .INE OF PARFELS I AM 2 Of SAID PARCEL MAP NO 00-lil, THENCE MORAN 20'10'.!' WESI, ALp/6 SAID ma aVO.ITION', A 0I57ANCE OF JI.23' TO THE SOUI/ERLV Co"&I COKER OF SAID PARCELS J AM 2 OF SAID PARCEL ANP: TAFW_E SOWM IF -00'00' WEST, ALOW TAE SOVI/ERLY LI/E OF SAID PARCEL .. A Of$IANCE OF 6? 63' 76YWIAUIlN6 AT HLE POINT GF BEGIANIID EASCMEA/f FOR PARCEL T OF PARCEL MAP w. 66-lll - BECINVING AT THE SWNdf51 CORNEA OF PARCEL ? OF PARCEL MAP NO ff-Jil. IN NE CITY OF /EWOWI BEACH, COUVTY OF DRANGF, STATE OF CAL IFORNIA, AS SADNN ON A LAP RFCORfiM //I BOM' 2J7, PAGES JS A/D J6 OF PARCEL MAP.;, RECORDS OF SAID OANDE CDWTL'; fWJCf SOWN 20.78'7!' WEST, ALONG IME SVVfWRLY PR0LLN6AIIVN DF 7/E COMMON PROPtERfY LIME OF PARCFLS I AAV 7 DF .SAID PIACFI NAP IM M -f fl. A DISTANCE /K 11 2J'; IAENCE MORIN 86.20'52' EAST, A OISIAN CE OF 43.05 F7F7, HENCE NORIN 5.44'I6' EAST, A D/SIANCE OF 31.02 FfEI 70 INC SOLNNEASIEALY CORNER W $ATO PARCEL T OF SAID PARCEL MAP AV 08 -Ill, INENCE SOLIM 65-Jf'JO' ASST, Al Ma TME $WNERLY LINE OF SATO PARCEL 2, A OISIANCE OF 55 00 FEF!. TERNI/u,-:I//. AT TAE POINT OF BF6INNIN6 EASENWNF FOR PARCEL 4 OF 0 RCEL NAP M. 60 -Ill - BEEM,FAG A7 THE SWTAEAST CORA" W PARCEL 2 OF PARCEL MAP /q, 88-/!l. IN TAF.' CITY OF NFWORT BEACH. CAWTV OF MAW, STATE OF CALIFORNIA, AS SHOW aR A MP PECORDFO IN BUOY 237, PAGES JS AID J6 O< PARCEL MAPS, RECORDS OF SAID aWASL CORNY, TAEIKE SOUTH Jl-lJ'2Z' EAST, ALONG INF SOU7MWESIERLY LNE OF PARCEL 4 OF SA/O PARCEL MAP AV. 00-1//. A OISIANCE OF //7 87 FEET TO IfE SWIM CaWft OF SAID PARCEL 4, 7AEHCE MORIN 42.43'24' WEST, A OISFAIKE aF 95.00 FEET, I/tWE AVR7N 5.44'J6' EAST, A DISIAACE LM' 11.02 ffEl 7f.%YINA7/N6 AI //E POINT OF BEGINNING. / /^ u- . Blip I .7EFFREN. M/( E7, L.S. TDSS E.M. 6/50/92 J •fl [ALiiOpNa' Df.P Sa'xov--E_Eal-& N —AREA [To be Supplied] c -i R1/940/2ROR/M9200-002/07-18-90/mi B�tXa-