HomeMy WebLinkAbout16 - A General Plan Amendment for the Residences at Newport Center Located at 150 Newport Center Drive (PA2020-020)Q �EwPpRT
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<,FORN'P City Council Staff Report
September 28, 2021
Agenda Item No. 16
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Liz Westmoreland, Associate Planner,
Iwestmoreland@newportbeachca.gov
PHONE: 949-644-3234
TITLE: Ordinance Nos. 2021-19 and 2021-20: A General Plan Amendment
for the Residences at Newport Center Located at 150 Newport
Center Drive (PA2020-020)
ABSTRACT:
For the City Council's consideration is the request to approve several discretionary
actions, including the approval of a General Plan Amendment, Zoning Code Amendment,
and Development Agreement for a residential project proposed at 150 Newport Center
Drive. Newport Center Anacapa Associates, LLC (applicant) is proposing to construct a
four-story structure that would contain 28 residential condominium units and common
space amenity areas over a two-level, below -grade parking garage. Development of the
project would entail demolition of the Newport Beach Car Wash, located at the southwest
corner of the intersection of Newport Center Drive and Anacapa Drive.
RECOMMENDATION:
a) Conduct a public hearing;
b) Adopt Resolution No. 2021-90, A Resolution of the City Council of the City of Newport
Beach, California, Certifying Environmental Impact Report No. ER2021-002 (SCH
No. 2020110087), Adopting the Mitigation Monitoring and Reporting Program, and
Adopting California Environmental Quality Act Findings of Fact for the Residences at
Newport Center Located at 150 Newport Center Drive (PA2020-020);
c) Adopt Resolution No. 2021-91, A Resolution of the City Council of the City of Newport
Beach, California, Adopting General Plan Amendment No. GP2020-001 for the
Residences at Newport Center Located at 150 Newport Center Drive (PA2020-020),
d) Adopt Resolution No. 2021-92, A Resolution of the City Council of the City of Newport
Beach, California, Approving Major Site Development Review No. SD2020-001 for
the Residences at Newport Center and Rescinding Use Permit No. UP1461 for a Car
Wash Located at 150 Newport Center Drive (PA2020-020);
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e) Adopt Resolution No. 2021-93, A Resolution of the City Council of the City of Newport
Beach, California, Approving Tentative Tract Map No. NT2020-001 for the
Residences at Newport Center Located at 150 Newport Center Drive (PA2020-020);
f) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2021-19, An Ordinance of the City Council of the City of Newport Beach,
California, Approving Development Agreement No. DA2020-001 for the Residences
at Newport Center Located at 150 Newport Center Drive (PA2020-020), and pass to
second reading on October 12, 2021; and
g) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2021-20, An Ordinance of the City Council of the City of Newport Beach,
California, Approving Zoning Code Amendment No. CA2020-008 and Planned
Community Development Plan No. PC2020-001 Establishing the Residences at
Newport Center Located at 150 Newport Center Drive (PA2020-020), and pass to
second reading on October 12, 2021.
DISCUSSION:
Project Setting
The subject property (property, project site, or site) is located at 150 Newport Center Drive
within the Newport Center area and is located at the southwest corner of Newport Center
Drive and Anacapa Drive. The property consists of a single parcel, which is 54,716 square
feet (1.26 acres). The property is currently developed with a 2,085 -square -foot car wash
with an ancillary convenience market and service station. On August 6, 1970, the
Planning Commission approved Use Permit No. UP1461 for the construction of an
automatic car wash with gasoline sales. The property is currently designated by the Land
Use Element of the General Plan as CO -R (Regional Commercial Office) and the site is
zoned OR (Office Regional) pursuant to the Zoning Code, consistent with the existing use
on the property. The project site is not located within the Coastal Zone.
Project Description
The project applicant is proposing to construct a four-story structure that would contain
28 residential condominium units and common space amenity areas over a two-level
below -grade parking garage. Development of the project would entail demolition of the
Newport Beach Car Wash and all related improvements. The proposed structure would
reach a height of approximately 53 feet with additional height for rooftop appurtenances
(e.g. mechanical equipment, vents, elevators, etc.). Plans are included as Attachment
No. PC 5 of Attachment G.
In total, the building would comprise approximately 103,158 gross square feet and the
parking areas under the building would comprise an additional 71,456 gross square feet
and consist of upper and lower basement parking areas. The roof of the building includes
areas for housing mechanical equipment, stairs, and elevator overruns. No resident
access would be permitted on the roof, and no rooftop decks are proposed as part of the
project.
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The maximum density for the site is 28 dwelling units, or 23 dwelling units an acre. The
Planned Community Development Plan establishes a minimum floor area per unit based
on the floor plans of the building. The units on the ground floor would be the smallest and
the penthouse units on the top floor would be the largest. The number of bedrooms per
unit would be determined during the plan check process. The units range from
approximately 1,430 to 5,689 square feet, with the largest flats on the penthouse level.
Access and Parking
The project design includes two vehicular access points. The primary resident
ingress/egress would be via a driveway within Gateway Plaza that is accessible via
Anacapa Drive. The resident access driveway would be located on the south side of the
building with direct access to the upper parking level. Along the fagade of the building
facing Anacapa Drive, would be the visitor entry where a one-way driveway would lead
to the building's motor court and drop off area. Valet service would be offered in the
morning and evening for guests and residents. Emergency vehicles would stage along
Anacapa Drive. The staging area will be marked for exclusive use by the Fire Department.
The valet operations and other project elements such as moving truck and trash truck
circulation are detailed in the Circulation Plan (Attachment No. PC 3 of Attachment G)
that has been reviewed by the City Traffic Engineer.
Pursuant to the Zoning Code, the project provides the required 56 parking spaces for the
residences, 14 residential guest or employee parking spaces, and 12 surplus spaces. All
of the parking is provided on-site within the assigned/private residential two -car garages
and open guest parking stalls.
Landscaping and Amenities
The project will provide a series of common outdoor living areas that includes a private
dog run, entry court, and pool area. The units include terraces and patios for private
outdoor space. Additional amenities in the proposed building would include, but not be
limited to a lobby, lounge, concierge area, offices, meeting room, catering kitchen, storage
areas, and fitness facility or gym.
Substantial landscaping is provided throughout the site in areas that are not utilized by
the residential units or areas for parking circulation. All setback areas are landscaped. A
variation of ornamental groundcover, vines, shrubs, and trees are utilized to help soften
and buffer the massing of the condominium units and podium at ground level. New street
trees are proposed along Anacapa Drive and will be subject to the review of the Municipal
Operations Division.
Prior Project
It should be noted, in 2014, an application was submitted for the subject address,
150 Newport Center Drive referred to as the Newport Center Villas or the 150 Newport
Center Drive Residential Project (PA2014-213). The project was heard several times by
the Planning Commission and City Council, but the applicant ultimately withdrew the
application prior to City Council taking action on the project. The prior project was
originally submitted with 49 condominium units and proposed with seven stories at a
height of approximately 78 feet.
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General Plan Amendment
The existing General Plan Land Use Designation for the property is CO -R (Regional
Commercial Office). The project site, all of Block 100 including the four corners of the
block, are located within Anomaly 35 of the General Plan (Table LU2), which sets the
cumulative development limit for the anomaly. The applicant requests to amend the
General Plan designation for the property from the existing CO -R (Regional Commercial
Office) designation to the RM (Multiple Residential) designation, establishing a new
anomaly in Table LU2 of the General Plan for 28 dwelling units (Exhibit C of Attachment
B).
The General Plan identifies Newport Center/Fashion Island as a sub -area and it includes
goals and policies specific to this area. A complete consistency analysis of each of the
applicable General Plan policies is included in the Draft Environmental Impact Report
beginning on Page 4.8-12 of the document (Table 4.8-2). The analysis concludes that the
project is consistent with each of the adopted goals and policies. The Planning
Commission Staff Report (Attachment G) includes a discussion on the finding of
consistency in the policies applicable to development in Newport Center.
Zoning Code Amendment
Under existing conditions, the project site is within the "Office - Regional (OR)" Zoning
District. The "OR" Zoning District is intended to provide for areas appropriate for corporate
offices, administrative, and professional offices that serve local and regional markets, with
limited accessory financial, retail, service and entertainment uses.
The proposed PC -61 (Residences at Newport Center Planned Community) District meets
the intent and purpose for a Planned Community (PC) as specified in Newport Beach
Municipal Code (NBMC) Section 20.56.010 (Planned Community District Procedures,
Purpose) given its location in the Newport Center area which includes a mixture of
shopping, hotels, commercial support uses, professional offices, and residential
developments that cumulatively contain the ingredients of a planned community. The
proposed PC District adds to this diversity, assisting the City of Newport Beach (City) in
larger -scale community planning.
Waiver of Minimum Acreage Requirements
The proposed project consists of approximately 1.26 acres. Pursuant to NBMC Section
20.56.020 (Area Requirements), the minimum area for a planned community is 10 acres
of improved land. The Council may waive these minimum acreage requirements upon
request and a waiver would be necessary to establish the proposed PC. A Planned
Community is appropriate for the proposed project to ensure broader coordination and
consistency with the surrounding neighborhood, including a higher level of architectural
quality supporting a coastal living environment with pedestrian connectivity.
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The waiver takes into account the broader context of Newport Center as a whole. The
proposed project is located within a larger urban development pattern where adjusted
development standards are appropriate for the urban site to ensure the project site
remains compatible with the greater neighborhood.
The Residences at Newport Center Planned Community would provide for a coordinated,
comprehensive project and would establish a specific set of standards and procedures
for implementation and continuation of the mixed-use area consistent with surrounding
uses. Thus, staff suggests that the City Council approve a waiver of the minimum site
area in order to establish the proposed Planned Community for the project.
Charter Section 423 (Measure S) Analysis
Council Policy A-18 requires that proposed General Plan amendments be reviewed to
determine if a vote of the electorate would be required pursuant to Section 423 of the City
Charter (known as "Greenlight"). If a General Plan Amendment (separately or
cumulatively with other CPAs within the previous 10 years in the same General Plan
Statistical Area) exceeds one or more of the thresholds below, then a vote of the
electorate is required:
• 100 peak hour trips (a.m. or p.m.);
• 40,000 square feet of non-residential floor area; or
• 100 dwelling units
The proposed project is the third General Plan Amendment in Statistical Area L1 within
the last 10 years, including the approved Newport Beach Country Club Clubhouse
(PA2008-152) and Vivante Senior Housing (PA2018-185) projects. The proposed
amendment results in 28 additional dwelling units and there is no change in the square
footage of non-residential floor area. The 28 additional dwelling units result in a net
increase of 3.3 a.m. peak hour trips and 2.3 p.m. peak hour trips based on the commercial
blended trip rate (for existing uses) and High -Rise Residential Condominium/Townhouse
trip rate for the proposed use, as provided in Council Policy A-18. Therefore, the project
individually does not exceed the Charter Section 423 thresholds to require a vote, should
the proposed General Plan Amendment be approved by the City Council.
Furthermore, including 80 percent of prior General Plan amendments from the last
10 years with the proposed project (i.e. cumulative analysis), results in a total increase of
16,800 square feet of nonresidential floor area, 25 a.m. peak hour trips, 44 p.m. peak
hour trips, and 100 residential dwelling units for Statistical Area L1. As none of the
thresholds specified by Charter Section 423 are exceeded using the cumulative analysis,
no vote of the electorate is required if the City Council chooses to approve General Plan
Amendment No. GP2020-001.
The analysis is summarized in Table 1.
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Table 1: Charter Section 423 Analysis Summary
Statistical Area L1
Increase in
Increase in
Increase in
Increase in
Allowed Floor
A.M. Peak Hour
P.M. Peak Hour
Allowed
Area (s.f.)
Trips
Trips
Dwelling Units
Prior Amendments (80%)
1. NB Country Club
21,000
N/A
N/A
0
(Clubhouse)
GP2008-005
(PA2008-152)
2. Vivante Senior
0
26
52
90
Housing
(Reduction: 45,028
GP2018-003
to 16,000)
PA2018-185
80% of Prior Projects
16,800
20.8
41.6
72
Proposed Project
0
3.3
2.3
28
Cumulative + Project'
16,800
24
44
100
Section 423 Thresholds
40,000
100
100
100
Vote
No
No
No
No
If the proposed General Plan Amendment is approved by City Council, this amendment
will become a prior amendment and 80 percent of the increases will be tracked for the
next 10 years.
Development Agreement
Although not required by the General Plan or NBMC, a voluntary development agreement
has been requested by the applicant. The Development Agreement includes all the
mandatory elements for consideration and public benefits that are appropriate to support
conveying the vested development rights consistent with the General Plan, NBMC, and
Government Code Section 65864 et seq.
The termination date of the agreement is 10 years and this duration should be sufficient
to implement the project. The applicant has agreed to pay a public benefit fee to the City
in the sum of $2,500,000, or $89,285.71 per residential dwelling unit. The developer is
required to pay the Public Benefit Fee to the City at the time of the City's issuance of the
first building permit for the project.
Unless otherwise provided by the development agreement, the ordinances, rules, plans
and policies of the City of Newport Beach which govern permitted uses of land, the density
of development, and the design, improvement and construction standards and
specifications, applicable to development of the property subject to the development
agreement, shall be those ordinance rules, plans and policies in force at the time of
execution of the agreement.
' Totals are rounded to the nearest whole number.
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Fiscal Analysis
The City's consultant has prepared an independent fiscal impact model (Attachment
No. PC 2 of Attachment G) in accordance with General Plan Implementation Policies 12.1
and 12.2. The fiscal analysis uses the Newport Beach Fiscal Impact Model to help
calculate revenue and cost impacts of the proposed project. This model was initially
developed in support of the General Plan Update, which was adopted in 2006. The model
has been updated to reflect FY 2021-2022 costs and revenues from the adopted Newport
Beach City Budget.
The fiscal impact model calculates public service impacts for specific land uses that
support the residential population, the employment base and the visitor population in
Newport Beach. It also calculates the public revenues that each type of land use typically
generates for the City, including property taxes, sales taxes and other taxes as well as a
variety of user charges and fees. The fiscal analysis evaluates the proposed project as
well as the alternatives identified in the Draft EIR.
According to the fiscal analysis, the proposed residential use of the site would generate
a positive fiscal benefit for the City due to the building intensity and anticipated high value
of the proposed development. While other alternatives to the project would also generate
a positive fiscal benefit for the City, the proposed project was determined to produce the
highest net fiscal impact to the City.
Rescission of Use Permit No. 1461
If approved, the requested entitlements would create a change in circumstances (General
Plan amendment to residential use) under which the site will no longer be improved with
the infrastructure to accommodate a car wash use as authorized under Use Permit
No. UP1461. The recommended action will rescind the existing use permit entitlement for
all commercial activities associated with the car wash.
Planning Commission
The Planning Commission conducted a study session on May 6, 2021, in the City Council
Chambers. The purpose of the study session was to introduce the project and to provide
the Planning Commission and general public with the opportunity to learn about the
project and request specific information prior to or at the public hearing. The applicant
and City staff provided presentations and answered questions about the project.
On August 19, 2021 the Planning Commission held a public hearing to review the project
and unanimously recommended that the City Council approve the project. Topics
discussed included measurement of building height, neighboring property owner
involvement, potential offsite nuisances, and circulation. Due to the large file size of the
staff report and associated attachments, the document is available online for review at
the following web address: www.newportbeachca.gov/8192021 PCMEETING.
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Summary
The project would result in the redevelopment of an under-utilized and aging site with a
new residential project that is consistent with the General Plan goals and policies for
development of the Newport Center area. Although not currently zoned for residential
use, the land use change at 150 Newport Center Drive creates a functional residential
project that integrates residential uses into the surrounding commercial uses within
Newport Center. It should be noted that Newport Center accommodates residential uses,
with the Colony Apartments, Meridian development, Vivante Senior Housing, and Villas
Fashion Island.
The project exhibits high quality architectural treatment of the building and given the
constraints of the property, the recommended height (53 feet to top of roof with additional
height for rooftop appearances) and setbacks are reasonable and consistent with the
General Plan policies and proposed Residences at Newport Center development
standards. The resulting project is consistent with the development pattern and setback
standards within Newport Center and enhance pedestrian connections along the project's
street frontages. The proposed project results in a development that is compatible and
consistent with the surrounding neighborhood in terms of bulk and scale.
FISCAL IMPACT:
A voluntary Development Agreement has been requested by the applicant. As part of the
Development Agreement, the applicant has agreed to pay a public benefit fee to the City
in the sum of $2,500,000, or $89,285.71 per residential dwelling unit. The developer is
required to pay the Public Benefit Fee to the City at the time of the City's issuance of the
first building permit for the project.
The Development Agreement allocates the total fee into the following categories
• $1,875,000 for any public purpose that the City determines to be in the public
interest
• $325,000 for affordable housing
• $150,000 to fund services for those experiencing homelessness
• $150,000 to fund public safety
ENVIRONMENTAL REVIEW:
Prior to making an approval decision on the proposed project or a modified project, the
City Council must first review, consider, and certify the Environmental Impact Report
(EIR), SCH No. 2020110087.
The City contracted with T&B Planning, Inc., an environmental consulting firm, to prepare
an Initial Study and Draft Environmental Impact Report (DEIR) for the proposed project
in accordance with the CEQA and the State CEQA Guidelines. A copy of the DEIR was
sent to the Planning Commission and also made available on the City's website
(http://www.newportbeachca.gov/cepa), at each Newport Beach Public Library, and at the
Community Development Department.
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Environmental topic areas for which the City concluded that impacts clearly would be less
than significant and that did not warrant further analysis in this EIR include: 1) Agriculture
and Forestry Resources; 2) Energy; 3) Hydrology and Water Quality; 4) Mineral
Resources, 5) Population and Housing; 6) Public Services; 7) Recreation; 8) Utilities and
Service Systems; and 9) Wildfire.
The following environmental topics were identified as potentially affected by the
implementation of the proposed project and were evaluated in the Draft EIR: Aesthetics,
Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse
Gas Emissions, Hazards and Hazardous Materials, Land Use and Planning, Noise,
Transportation, and Tribal Cultural Resources. The document recommends the adoption
of nine mitigation measures to reduce the potentially significant adverse effects to a less
than significant level related to Biological Resources, Cultural Resources, Geology/Soils,
and Tribal Cultural Resources. These mitigation measures are identified in the Mitigation
Monitoring and Reporting Program, which is included as Exhibit C of Attachment A.
No impacts were determined to be significant and unavoidable.
The Draft EIR document was released for a 45 -day public comment period from April 29,
2021, through June 14, 2021. The Draft EIR analyzed all CEQA topics and found that
there would be no significant and unavoidable impacts resulting from the project.
On the basis of the analysis provided in the draft EIR, City staff has concluded that the
project would not have a significant impact on the environment. The draft EIR reflects the
independent judgment of the City and recognizes project design features, standard
construction and engineering practices, compliance with Federal, State, and local laws, and
standard conditions of approval for City projects. The project site does not include any sites
on an Environmental Protection Agency hazardous waste site list pursuant to Government
Code Section 65962.5.
Staff received six comments on the Draft EIR from agencies and the public. The consultant
and staff have prepared detailed written responses to each of the comments received on
the adequacy of the DEIR, which are included as Exhibit B of Attachment A. Corrections
and additions to the DEIR are also provided to incorporate additional or revised information
required for the preparation of responses to certain comments. The revisions do not alter
any impact significance conclusion disclosed in the DEIR, and therefore, do not warrant
recirculation of the DEIR for public review. The revisions to the DEIR will be incorporated
into the Final EIR, if certified.
NOTICING:
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property
within 300 feet of the boundaries of this site (excluding intervening rights-of-way and
waterways), posted along the boundaries of the site, and an email was sent to interested
parties who previously requested notification in writing. The item also appears on the
agenda for this meeting, which was posted at City Hall and on the City website.
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ATTACHMENTS:
Attachment A —
Resolution No. 2021-90 (Environmental Impact Report)
Attachment B —
Resolution No. 2021-91 (General Plan Amendment)
Attachment C —
Resolution No. 2021-92 (Major Site Development Review)
Attachment D —
Resolution No. 2021-93 (Tentative Tract Map)
Attachment E
—Ordinance No. 2021-19 (Development Agreement)
Attachment F
—Ordinance No. 2021-20 (Planned Community Development Plan)
Attachment G
—Planning Commission Staff Report (August 19, 2021)
www.newportbeachca.gov/8192021 PCMEETING
Attachment H —
Planning Commission Resolution No. 2021-024 (Attachments Omitted)
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Attachment A
Resolution No. 2021-90 (EIR)
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RESOLUTION NO. 2021- 90
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, CERTIFYING
ENVIRONMENTAL IMPACT REPORT NO. ER2021-002
(SCH NO. 2020110087), ADOPTING THE MITIGATION
MONITORING AND REPORTING PROGRAM, AND
ADOPTING CALIFORNIA ENVIRONMENTAL QUALITY
ACT FINDINGS OF FACT FOR THE RESIDENCES AT
NEWPORT CENTER LOCATED AT 150 NEWPORT
CENTER DRIVE (PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California,
WHEREAS, an application was filed by Newport Center Anacapa Associates, LLC
("Applicant"), with respect to property located at 150 Newport Center Drive and legally
described in Exhibit 'A," which is attached hereto and incorporated herein by reference
("Property"),
WHEREAS, the Project includes the demolition of an existing 2,085 -square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals by the City:
• General Plan Amendment No. GP2020-001 — to change the Property's land use
designation from Regional Commercial Office (CO -R) to Multiple Residential
(RM) and create a new Anomaly Location for the Property that authorizes a
maximum development density of 28 dwelling units,
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
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• Major Site Development Review No. SD2020-001 —to allow for the development
of a four-story structure containing 28 luxury condominium units and common
space areas over a two-level below -grade parking garage;
• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually;
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect at
the time of Project approval and to provide the City with assurance that certain
obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study and
Environmental Impact Report ("EIR") are warranted for the Project pursuant to
California Public Resources Code Section 23000 of seq. ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines"),
and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Project is designated Regional Commercial Office (CO -R) by the
City of Newport Beach General Plan ("General Plan") Land Use Element and is located
within the Office Regional (OR) Zoning District;
WHEREAS, the Property is not located within the coastal zone;
WHEREAS, pursuant to CEQA, the CEQA Guidelines, and City Council Policy K-
3 (Implementation Procedures for the California Environmental Quality Act), it was
determined that the Project may have a significant adverse effect on the environment,
and thus warranted the preparation of an EIR;
WHEREAS, on November 5, 2020, the City, as lead agency under CEQA,
prepared a Notice of Preparation ("NOP") of the EIR and mailed that NOP to responsible
and trustee public agencies, organizations and persons likely to be interested in the
potential impacts of the Project, including any persons who had previously requested
notice in writing;
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WHEREAS, on November 30, 2020, the City held a publicly -noticed EIR scoping
meeting to present the Project and to solicit input from interested individuals, organizations,
and responsible and trustee public agencies regarding environmental issues that should be
addressed in the EIR;
WHEREAS, due to the State Emergency related to COVID-19 and as allowed
pursuant to Executive Order N-29-20, the City hosted the EIR Scoping Meeting via an
internet-based video and phone conferencing service;
WHEREAS, a Draft EIR (SCH No. 2020110087) ("DEIR") was prepared in
compliance with CEQA, the State CEQA Guidelines, and City Council Policy K-3;
WHEREAS, the DEIR was circulated for a 45 -day comment period beginning on
April 29, 2021 and ending on June 14, 2021;
WHEREAS, the City reviewed all comments to the DEIR and prepared written
responses to comments;
WHEREAS, the Final EIR, consisting of the NOP, Initial Study, Draft EIR,
Responses to Comments, Revisions to the DEIR, and Mitigation Monitoring and
Reporting Program are attached as Exhibits "B" and "C," and incorporated herein by
reference;
WHEREAS, the following environmental topics were identified as having potential
impacts by the implementation of the Project: Aesthetics, Air Quality, Biological
Resources, Cultural Resources, Geology and Soils, Greenhouse Gas Emissions,
Hazards and Hazardous Materials, Land Use and Planning, Noise, Transportation, and
Tribal Cultural Resources;
WHEREAS, the Final EIR recommends the adoption of nine mitigation measures
to reduce the potentially significant adverse impacts to a less than significant level related
to Biological Resources, Cultural Resources, Geology/Soils, and Tribal Cultural
Resources;
WHEREAS, the mitigation measures are identified in the Mitigation Monitoring
and Reporting Program, which is included as Exhibit "C";
WHEREAS, pursuant to Section 21080.3.1 of the California Public Resources
Code, on December 7, 2020, the City provided notice to California Native American tribes
that have requested in writing to be informed of projects in the geographic area that is
traditionally and culturally affiliated with the tribe;
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WHEREAS, the City provided notice to the Gabrieleno Band of Mission Indians —
Kizh Nation, the Juaneno Band of Mission Indians, Acjachemnen Nation — Belardes, the
Gabrielino Tongva Tribe with the Gabrieleno Band of Mission Indians — Kizh Nation and
the Juaneno Band of Mission Indians, Acjachemnen Nation — Belardes requesting
consultation within the time prescribed in Section 21080.3.1 of the Public Resources
Code;
WHEREAS, based upon the consultation, the DEIR was updated to incorporate
mitigation measures requiring a qualified archaeological monitor and qualified Native
American Tribal monitor are retained to monitor the Property during any ground disturbing
construction activities;
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the Project to the Planning
Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures) and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the public hearing was given in accordance with the Ralph M. Brown
Act and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review),
20.56 (Planned Community District Procedures) and 20.62 (Public Hearings) of the
NBMC. Evidence, both written and oral, was presented to, and considered by, the City
Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
16-15
Resolution No. 2021 -
Page 5 of 6
Section 1: The City Council hereby certifies Environmental Impact Report No.
ER2021-002 (SCH No. 2020110087), which is attached here to as Exhibit "B" and
incorporated herein by reference consisting of the NOP, Initial Study, DEIR, Responses
to Comments, revisions to the DEIR. The City Council finds that information added to
the Final EIR prior to certification merely clarifies, amplifies or makes insignificant
modifications to the environmental document and any changes or alterations incorporated
into the Final EIR which substantially lessen or avoid one or more of the significant
adverse environmental impact does not warrant recirculation of the Final EIR. Rather, all
information added to the Final EIR after public notice of the availability of the Draft EIR
for public review but before certification, merely clarifies, amplifies or makes insignificant
modifications to the Final EIR.
Section 2: The City Council hereby adopts the Mitigation Monitoring Report
Program attached hereto as Exhibit "C" and incorporated herein by reference and finds
that on the basis of the entire environmental record, the Project, with mitigation measures
incorporated into the Project will result in either no project -level impacts or less -than -
significant project -level impacts, and there are no known significant and unavoidable
effects on the environment that would be caused by the Project.
Section 3: The City Council hereby adopts the CEQA Findings of Fact
Regarding the Environmental Effects of the Approval of the Residences at Newport
Center Project pursuant to CEQA Guidelines Section 15091 and Section 21081 of the
California Public Resources Code attached hereto as Exhibit "D," and incorporated herein
by reference.
Section 4: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 5: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
16-16
Resolution No. 2021 -
Page 6 of 6
Section 6: The City Council finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. in
addition, project opponents often seek an award of attorneys' fees in such challenges. As
project applicants are the primary beneficiaries of such approvals, it is appropriate that
such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages which
may be awarded to a successful challenger.
Section 7: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 28th day of September, 2021.
Brad Avery
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron arp
City Atthrney
Attachment(s): Exhibit A — Legal Description
Exhibit B — Environmental Impact Report No. 2021-002
Exhibit C — Mitigation Monitoring and Reporting Program (MMRP)
Exhibit D — CEQA Findings of Fact Regarding the Environmental
Effects of the Approval of the Residences at Newport Center Project
16-17
Exhibit "A"
Legal Description
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No.
282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1, Page
88 of Miscellaneous Record Maps, records of Orange County, California.
16-18
Exhibit "B"
Environmental Impact Report
EIR SCH No. 2020110087
• Notice of Preparation
• Initial Study
• Environmental Analysis
• Alternatives Analysis
• Appendices
• Responses to Comments
• Errata
(Available separately due to bulk)
http:llwww. newportbeachca.gov/CEQA
16-19
Exhibit "C"
Mitigation Monitoring and Reporting Program
16-20
■■ Residences at Newport Center
NEIEnvironmental Impact Report Mitigation Monitoring and Reporting Program
Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
4.3 Biological Resources
Threshold a): The Project would not
MM 4.3-1 As a condition of
Prior to demolition
Project Applicant,
Less than Significant
result in impacts to sensitive natural
demolition permits, tree removal permits,
permits, tree removal
Qualified biologist,
Impact with Mitigation
plant communities, special -status
clearing permits, and any other permits that
permits, clearing
City of Newport
Incorporated.
plants, or special -status animals.
would authorize the disturbance to and
permits, or any
Beach
However, the Project has the
removal of potential bird nesting habitat
permit that would
potential to impact nesting birds if
shall be prohibited during the migratory bird
authorize removal of
habitat is removed during the nesting
nesting season (February 1 through August
nesting bird habitat
season (February 1 through August
31) unless a migratory bird nesting survey is
(applies February 1
31), which is considered a significant
completed. If demolition and/or vegetation
through August 31)
impact. Impacts to nesting birds are
removal is planned to occur during the
prohibited by the MBTA and CFGC.
migratory bird nesting season (February 1
Therefore, migratory bird species
August 31), then a migratory bird nesting
protected by the MBTA could be
survey shall be completed in accordance
impacted by the Project if active
with the following requirements:
nests are present on the site at the
time that nesting habitat (exterior
a) Within three (3) days prior to
structures, trees and shrubs) are
initiating demolition, tree removals and/or
removed.
vegetation clearing, a nesting bird survey
shall be conducted by a qualified biologist
within the suitable habitat to be removed and
within a 250 -foot radius.
b) If the survey reveals no active
nesting, the proposed action may proceed.
C) If the survey identifies the presence
of active sensitive bird nests, then the nests
Lead Agency: City of Newport Beach SCSI No. 2020110087
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■n Environmental Impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
shall not be disturbed unless the qualified
biologist verifies through non-invasive
methods that either (i) the adult birds have
not begun egg -laying and incubation; or (ii)
the juveniles from the occupied nests are
capable of independent survival.
d) If the biologist is not able to verify
any of the conditions from sub -item "b,"
above, then no disturbance shall occur within
a buffer zone specified by the qualified
biologist for each nest or nesting site. The
buffer zone shall be species -appropriate (no
less than 100 -foot radius around the nest for
non -raptors and no more than a 500 -foot
radius around the nest for raptors, or as
otherwise determined by the qualified
biologist) and shall be sufficient to protect
the nest from direct and indirect impacts
from construction activities. The nests and
buffer zones shall be field checked
approximately weekly by a qualified
biological monitor. The approved buffer
zone shall be marked in the field with
construction fencing, within which no
vegetation clearing or ground disturbance
shall commence until the qualified biologist
with City concurrence verify that the nests
are no longer occupied and/or juvenile birds
can survive independently from the nests.
Lead Agency: City of Newport Beach SCH No. 2020110087
Page 2
16-22
NoResidences at Newport Center
0u Environmental impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Irnpact7Mitigation Measures (MM) Applicable to Implementation Responsible Significance
the Project Stage (Monitoring Party Determination
4.4 Cultural Resources MM 4.4-1
Threshold b): Due to the depth of the
MM 4.4-1 Prior to the issuance of' a
Prior to the issuance
Project Applicant,
Less than Significant with
excavation required for the proposed
grading permit or any other permit that
of the first grading
City of Newport
Mitigation Incorporated.
subterranean parking structure, there
authorizes disturbance of native soil, the
permit or permit for
Beach, professional
is a potential that previously
Developer/Applicant shall a retain a
ground disturbance
archaeological
unearthed archeological resources
professional archaeologist who meets the
activities.
monitor, qualified
may be encountered where
U.S. Secretary of the Interior Standards
Native American
excavation depths exceed the depth
(SOI), to conduct monitoring. The Project
tribal monitor.
of disturbance associated with
Archaeologist shall have the authority to
previous construction activities not
temporarily redirect earthmoving activities
associated with the proposed Project.
in the event that suspected archaeological or
If archaeological resources are
tribal cultural resources are unearthed during
unearthed during the Project's
Project construction. The Project
excavation activities that meet the
Archaeologist, with participation from
CEQA Guidelines § 15064.5
Consulting Native American Tribe(s)
definition of significant resources,
including the Gabrieleno Band of Mission
and they are not property identified
Indians — Kizh Nation, and the Juaneno Band
and treated, a potentially significant
of Mission Indians -- Acjachemen Nation -
impact could occur.
Belardes, the contractor, and the City of
Newport Beach, shall develop an
Archeological Monitoring Plan to address
the details, timing and responsibility of all
archaeological and tribal cultural monitoring
and mitigation activities that will occur on
the Project site. A consulting tribe is defined
as a tribe that initiated the AB52 tribal
consultation process for the Project, has not
opted out of the AB52 consultation process,
and has completed AB52 consultation with
the City as provided for in Cal Pub Res Code
Lead Agency: City of Newport Beach SCH No. 2020110087
Page 3
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NoResidences at Newport Center
NOEnvironmental Impact Report
Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
Section 21080.3.2(b)(1) of AB52. The
Developer/Applicant is responsible for
securing any required monitoring
agreements with the Tribes. Details in the
Plan shall include:
a) Project grading and development
scheduling;
b) The development of a rotating
schedule in coordination with the Developer
and the Project Archeologist for designated
Native American Tribal Monitors from the
consulting tribes during grading, excavation
and ground disturbing activities on the site:
including the scheduling, safety
requirements, duties, scope of work;
C) The Project archaeologist and the
Consulting Tribes(s) that choose to
participate shall attend a pre -grading
meeting with the City, the construction
manager and any subcontractors and will
conduct a mandatory Cultural Resources
Worker Sensitivity Training to those in
attendance. The Training will include a brief
review of the cultural sensitivity of the
Project site and the surrounding area; what
resources could potentially be identified
during earthmoving activities; the
Lead Agency: City of Newport Beach
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SCH No. 2020110087
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.o Residences at Newport Center
EFAEnvironmental Impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
requirements of the monitoring program; the
protocols that apply in the event inadvertent
discoveries of cultural resources are
identified, including who to contact and
appropriate avoidance measures until the
find(s) can be properly evaluated; and any
other appropriate protocols. All new
construction personnel that will conduct
disturbance activities in native soil and that
begin work on the Project following the
initial Training must take the Cultural
Sensitivity Training prior to beginning work
and the Project archaeologist and Consulting
Tribe(s) that choose to participate shall make
themselves available to provide the training
on an as -needed basis;
d) If the Project Archaeologist or the
Tribal Monitor suspect a resource has been
discovered, they shall immediately cause soil
disturbing operations to stop in a 50 -foot
radius around the find to allow identification
and evaluation of the suspected resource. In
consultation with the Native American
Monitor, the Project Archaeologist shall
evaluate the suspected resource and make a
determination of significance pursuant to
California Public Resources Code Section
21083.2. If a significant resource is
discovered, a qualified person meeting the
Lead Agency: City of Newport Beach
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.■ Residences at Newport Center
■E Environmental Impact Report Mitigation Monitoring and Reporting Program
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Mitigation Measures (MM) Applicable to Implementation
the Project Stage
Responsible
/Monitoring Party
Significance
Determination
Secretary of the Interior's standards (36 CFR
61), Tribal Representatives and Monitors
and the City of Newport Beach shall be
consulted to determine appropriate measures
to avoid or mitigate negative effects on the
resource. Measures need to be tailored to the
resource and circumstances of the find, so
cannot be determined in advance.
Determinations and recommendations by the
qualified person meeting the Secretary of the
Interior's standards (36 CFR 61) shall be
submitted to the City for consideration, and
implemented as deemed appropriate by the
City in consultation with the State Historic
Preservation Officer (SHPO) and any and all
Consulting Native American Tribes as
defined in MM 4.4-1 before any further work
commences in the affected area.
MM 4.4-2 In the event that significant
Native American cultural resources are
discovered, the following procedures shall
be carried out for final disposition of the
discoveries:
a) One or more of the following
treatment methods shall occur. Evidence of
such shall be provided to the City ofNewport
Beach.
Lead Agency: City of Newport Beach
Page 6
SCH No. 2020110087
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noResidences at Newport Center
E❑ Environmental Impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
L Preservation -In -Place of the
cultural resources, if feasible.
Preservation in place means
avoiding the resources, leaving
them in the place they were
found with no development
affecting the integrity of the
resources.
ii. Onsite reburial of the
discovered items as detailed in
the treatment plan. This shall
include measures and
provisions to protect the future
reburial area from any future
impacts in perpetuity. Reburial
shall not occur until all legally
required cataloging and basic
recordation have been
completed. No recordation of
sacred items is permitted
without the written consent of
all Consulting Native American
Tribal Governments as defined
in MM 4.4-1. The location for
the future reburial area shall be
identified on a confidential
exhibit on file with the City, and
concurred to by the Consulting
Native American Tribal
Lead Agency: City of Newport Beach 5CH No. 2020110087
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■■ Residences at Newport Center
E❑ Environmental Impact Report
Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
Governments prior to the
issuance of a grading permit.
MM 4.4-3 The Developer or
contractor shall provide a minimum of 30
days advance notice to the City and
Consulting Tribes of all earthwork activities
in native soil.
MM 4.4-4 The City shall verify that
the following note is included on the Grading
Plan:
"If any suspected archaeological or
tribal cultural resources are discovered
during ground -disturbing activities and
the Project Archaeologist or Native
American Tribal Representatives are not
present, the construction supervisor is
obligated to halt work in a 50 -foot radius
around the find and call the Project
Archaeologist and the Tribal
Representatives to the site to assess the
significance of the find.
MM 4.4-5 If Native American human
remains and/or grave goods are discovered
during Project construction, then all
construction activities shall immediately
cease. Native American "human remains"
Lead Agency: City of Newport Beach
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SCH No. 2020110087
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■o Residences at Newport Center
■F] Environmental Impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
Implementation
Responsible
Significance
the Project
Stage
/Monitoring Party
Determination
are defined to include "an inhumation or
cremation, and in any state of decomposition
or skeletal completeness." (Pub. Res. Code §
5097.98 (d)(1).) Funerary objects, referred to
as "associated grave goods," shall be treated
in the same manner and with the same
dignity and respect as human remains. (Pub.
Res. Code § 5097.98 (a), d)(1) and (2). Any
discoveries of human skeletal material or
human remains shall be immediately
reported to the County Coroner (Health &
Safety Code § 7050.5(c); 14 Cal. Code Regs.
§ 15064.5(e)(1)(B)), and all ground -
disturbing project ground -disturbing
activities on site and in any other area where
the presence of human remains and/or grave
goods are suspected to be present, shall
immediately halt and remain halted until the
coroner has determined the nature of the
remains. (14 Cal. Code Regs. § 15064.5(e).)
If the coroner recognizes the human remains
to be those of a Native American or has
reason to believe they are Native American,
he or she shall contact, within 24 hours, the
Native American Heritage Commission, and
Public Resources Code Section 509798
shall be followed.
4.5 Geology and Soils
Threshold c): During excavation and
MM 4.5-1 Slopes created during
Prior to the issuance
Project Applicant,
Less than Significant with
construction of the proposed
subsurface excavations associated with the
of a grading permit;
City of Newport
Mitigation Incorporated.
Lead Agency: City of Newport Beach
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SCH No. 2020110087
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■■ Residences at Newport Center
■o Environmental Impact Report
Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
the Project
Implementation
Stage
Responsible
/Monitoring Party
Significance
Determination
Project's subterranean parking
Project's construction process shall be
during subsurface
Beach Building
structure, there is a potential for
shored in accordance with OSHA excavation
excavations
Official, Construction
impacts associated with soils that
safety regulations (Title 29 Code of Federal
associated with the
Contractor(s)
may unstable, or that would become
Regulations, Part 1926.650-652 [Subpart P])
Project's
unstable as a result of the
to the satisfaction of the City of Newport
construction process.
construction of the proposed Project,
Beach Building Official. Prior to the
if water seepage occurs that may
issuance of a grading permit, the Building
result in sloughing, slumping or
Official or his/her designee shall ensure that
other instability of vertical
the grading plan indicates the methods by
excavations.
which adequate shoring will occur. The
shoring methods must ensure that the
subsurface excavation will not slough or
slump. The Construction Contractor shall
implement the shoring requirements
throughout the subsurface excavation period
and allow inspection of the shoring method
by the City of Newport Beach,
MM 4.5-2 Expansive soils shall not be
Prior to the issuance
Project Applicant,
present as fill material below the building
of a grading permit;
City of Newport
slab and footings. During the property's site
ongoing during the
Beach Building
preparation and grading phases, expansive
property's site
Official, Construction
soils shall be mixed with other soil material
preparation and
Contractor(s)
to provide a uniform blend of material,
grading phases.
compacted to a minimum of 90 percent
relevant compaction, to the satisfaction of
the City ofNewport Beach Building Official.
Prior to the issuance of a grading permit, the
Building Official or his/her designee shall
ensure that the grading plan indicates a
Lead Agency: City of Newport Beach SCH No. 2020110087
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noResidences at Newport Center
OFEnvironmental Impact Report
Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
Implementation
Responsible
Significance
the Project
Stage
/Monitoring Party
Determination
subsurface soil content that is non -expansive
and compacted to at least 90 percent. The
Construction Contractor shall implement the
requirements throughout the site preparation
and grading process and allow inspection of
grading by the City of Newport Beach.
Threshold d): The expansion
MM 4.5-1 and MM 4.5-2 shall apply.
Less than Significant with
potential of onsite soils is anticipated
Mitigation Incorporated.
to generally range from "Very Low"
to "Medium" within the terrace and
existing fill materials. Soils with
"High" expansion are likely to be
encountered in the
siltstone/claystone of the Monterey
Bedrock. The potential for expansive
soils to be encountered at the Project
site represents a potentially
significant impact, because the
presence of expansive soil could lead
to structural instability if the soils are
not properly treated during the
construction process.
'Threshold 0: Due to the depth of the
MM 4.5-3 Prior to the issuance of
Prior to the issuance
Project Applicant,
Less than Significant with
excavation required for the proposed
grading permits, the Director of Community
of grading permits
City of Newport
Mitigation Incorporated.
subterranean parking structure, there
Development shall ensure that following
Beach Community
is a potential that previously
provision is included on the grading plan(s),
Development
unearthed paleontological resources
and the construction contractor(s) shall be
Department, qualified
may be encountered where
required to comply with the provision.
paleontologist.
excavation depths exceed the depth
Lead Agency: City of Newport Beach
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O❑ Environmental Impact Report Mitigation Monitoring and Reporting Program
Potential Environmental Impact
Mitigation Measures (MM) Applicable to
Implementation
Responsible
Significance
the Project
Stage
/Monitoring Party
Determination
of' disturbance associated with
,If evidence of subsurface
previous construction activities. If
paleontological resources is found
paleontological resources are
during construction, excavation and
unearthed during the Project's
other construction activity in that area
excavation activities and they are not
shall cease and the construction
properly identified and treated, a
contractor shall contact the City of
potentially significant impact could
Newport Beach Community
occur.
Development Director. With direction
from the Community Development
Director, a qualified paleontologist
meeting the Secretary of the Interior
Professional Qualification for
Paleontology shall evaluate the find. If
warranted, the paleontologist shall
prepare and complete a standard
Paleontological Resources Mitigation
Program for the salvage and curation of
identified resources."
4.11 Tribal Cultural Resources
Threshold a): The Project site does
MM 4.4-1 through MM 4.4-5 shall apply.
Prior to the issuance
Project Applicant,
Less than Significant with
not contain any known tribal cultural
of the first grading
City of Newport
Mitigation Incorporated.
resources (TCRs). If TCRs are
permit or permit for
Beah, professional
unearthed during the Project's
ground disturbance
archaeological
excavation activities, a potentially
activities.
monitor, qualified
significant impact could occur if the
Native American
resources are not properly identified
tribal monitor.
and treated.
Lead Agency: City of Newport Beach SCH No. 2020110087
Page 12
16-32
Exhibit "D"
CEQA Findings of Fact Regarding the Environmental Effects of the Approval of
the Residences at Newport Center Project
16-33
Facts and Findings
Regarding the Environmental Effects of the
Approval of the
Residences at Newport Center
(State Clearinghouse No. 2020110087)
City of Newport Beach File No. PA2020-020:
Development Agreement No. DA2020-001
General Plan Amendment No. GP2020-001
Zoning Code Amendment No. CA2020-008
Planned Community Development Plan No. PC2020-001
Major Site Development Review No. SD2020-001
Tentative Tract Map No. NT2020-001
Lead Agency
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
CEOA Consultant
T&B Planning, Inc.
3200 El Camino Real, Suite 100
Irvine, CA 92602
Proiect Applicant
Newport Center Anacapa Associates, LLC
901 Dove Street, #270
Newport Beach, CA 92660
August 23, 2021
16-34
Table of Contents
Section Name and Number Page
I. INTRODUCTION....................................................................................................................................................... 1
II. PROJECT SUMMARY..............................................................................................................................................1
A. Project Site Definitions........................................................................................................................................ l
B. Site Location.........................................................................................................................................................2
C. Project Description..............................................................................................................................................2
1. Development Agreement No. DA2020-001..................................................................................................... 2
2. General Plan Amendment No. GP2020-001................................................................................................... 2
3. Zoning Code Amendment No. CA2020-008.................................................................................................... 3
4. Planned Community Development Plan No. PC2020-001............................................................................. 3
5. Major Site Development Review No. SD2020-001......................................................................................... 3
6. Tentative Tract Map No. NT2020-001............................................................................................................ 3
D. City of Newport Beach Actions Covered By the EIR........................................................................................4
E. Approvals Required from Other Agencies........................................................................................................4
F. Project Objectives................................................................................................................................................5
III. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION......................................................................6
IV. INDEPENDENT JUDGMENT FINDING................................................................................................................8
V. FINDING OF NO LEGAL REQUIREMENT TO RECIRCULATE THE EIR...................................................8
VI. GENERAL FINDING ON MITIGATION MEASURES........................................................................................8
VII. ENVIRONMENTAL IMPACTS AND FINDINGS.................................................................................................9
A. Impacts Found Not to be Significant as Part of the Initial Study Process....................................................10
1. Aesthetics......................................................................................................................................................10
2. Agriculture and Forestry Resources.............................................................................................................
10
3. Air Quality ....................................................................................................................................................
11
4. Biological Resources....................................................................................................................................
12
5. Cultural Resources........................................................................................................................................
15
6. Energy...........................................................................................................................................................16
7. Geology and Soils.........................................................................................................................................
18
S. Hazards and Hazardous Materials...............................................................................................................
21
9. Hydrology and Water Quality .......................................................................................................................
24
10. Land Use and Planning................................................................................................................................
28
11. Mineral Resources........................................................................................................................................
28
12. Noise.............................................................................................................................................................
29
13. Population and Housing...............................................................................................................................
29
14. Public Services..............................................................................................................................................
30
15. Recreation.....................................................................................................................................................32
16. Transportation..............................................................................................................................................
33
17. Utilities and Service Systems........................................................................................................................
34
IS. Wildfire.........................................................................................................................................................37
B. Impacts Identified in the EIR as No Impact or Less than Significant Impact - No Mitigation
Required......................................................................................................................................................
37
LAesthetics......................................................................................................................................................37
2. Air Quality ....................................................................................................................................................
41
3. Cultural Resources........................................................................................................................................
43
4. Greenhouse Gas Emissions...........................................................................................................................
43
Residences at Newport Center
Facts and Findings
Page i
State Clearinghouse No. 2020110087
August 23, 2021
16-35
Table of Contents
Section Name and Number page
5. Hazards and Hazardous Materials............................................................................................................... 44
6. Land Use and Planning................................................................................................................................ 46
ZNoise............................................................................................................................................................. 46
S. Transportation.............................................................................................................................................. 47
C. Impacts Identified in the EIR as Less than Significant with Mitigation Incorporated ................................ 48
1. Biological Resources....................................................................................................................................
48
2. Cultural Resources........................................................................................................................................
50
3. Geology and Soils.........................................................................................................................................
54
4. Tribal Cultural Resources.............................................................................................................................
57
D. Impacts Determined by the EIR to be Significant and Unavoidable.............................................................
61
VIII. SIGNIFICANT IRREVERSIBLE ENVIRONMENTAL EFFECTS...................................................................61
IX. GROWTH-INDUCINGIMPACTS.........................................................................................................................62
X. PROJECT ALTERNATIVES..................................................................................................................................
63
A. No Project/No Redevelopment Alternative......................................................................................................
63
B. No Project/Office Redevelopment Alternative................................................................................................
64
C. Commercial/Restaurant Redevelopment Alternative.....................................................................................
66
D. Multiple Unit Residential (RM) Alternative....................................................................................................
67
E. Range of Alternatives.........................................................................................................................................
68
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I. INTRODUCTION
The City of Newport Beach ("City") has completed an Environmental Impact Report ("EIR"; State
Clearinghouse Number 2020110087) for the proposed Residences at Newport Center project and associated
applications (hereafter, the "Project" or "proposed Project"). The City is the Lead Agency for the purposes of
preparing and certifying the EIR pursuant to §§ 15050 and 15367 of the State California Environmental Quality
Act (CEQA) Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.).
The purpose of this EIR is to evaluate the potential environmental impacts of the proposed Project, which
consists of applications for a Development Agreement (DA2020-001), a General Plan Amendment (GP2020-
001), a Zoning Code Amendment (CA2020-008), a Planned Community Development Plan (PC2020-001)
(referred to as the Residences at Newport Center Planned Community Development Plan (PCDP)), a Major
Site Development Review (SD2020-001), and a Tentative Tract Map (NT2020-001). These applications are
collectively referred to by the City of Newport Beach as file number PA2020-020. In compliance with
§ 21002.1 of the CEQA statute and § 15002 of the State CEQA Guidelines, the City, as Lead Agency, has
prepared an EIR to (1) provide information to the general public, the local community, responsible and
interested public agencies and the City's decision-making bodies and other organizations, entities, and
interested persons of the potential environmental effects of the proposed Project, feasible measures to reduce
potentially significant environmental effects, and alternatives that could reduce or avoid the significant effects
of the proposed Project, (2) enable the City to consider environmental consequences when deciding whether
to approve the proposed Project, and (3) to satisfy the substantive and procedural requirements of CEQA.
The City Council of the City of Newport Beach (the "City Council") in approving Project, makes the Findings
described below. The Findings are based upon the entire record before the City Council, including the EIR
prepared for the Project by the City acting as lead agency under CEQA. The City adopts the facts and analyses
in the EIR, which are summarized herein for convenience. The omission of some detail or aspect of the EIR
herein does not mean that it has been rejected by the City.
Hereafter, the Notice of Preparation, Notice of Availability, Draft EIR, Technical Studies, Final EIR
(containing responses to public comments on the Draft EIR and text and exhibit revisions to the Draft EIR),
and the Mitigation Monitoring and Reporting Program (MMRP) will be referred to collectively herein as the
"EIR" unless otherwise specified.
II. PROJECT SUMMARY
A. Project Site Definitions
The Project Applicant (Newport Center Anacapa Associates, Inc.) submitted applications to the City of
Newport Beach for a Development Agreement (DA2020-001), a General Plan Amendment (GP2020-001), a
Zoning Code Amendment (CA2020-008), a Planned Community Development Plan (PC2020-001) (referred
to as the Residences at Newport Center Planned Community Development Plan (PCDP)), a Major Site
Development Review (SD2020-001), and a Tentative Tract Map (NT2020-001). These applications are
collectively referred to by the City of Newport Beach as file number PA2020-020. File number PA2020-020
involves the proposed entitlement of a 1.26 -acre property for the demolition and removal of "The Newport
Beach Car Wash" and the redevelopment of the site with a proposed mid -rise residential building to consist of
a 28 -unit residential condominium building with subterranean parking.
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B. Site Location
The approximately 1.26 -acre Project site is located on Assessor Parcel Number (APN) 442-231-12 at the
physical address of 150 Newport Center Drive in the City of Newport Beach, Orange County, California. The
Project site is located immediately south of Newport Center Drive, immediately west of Anacapa Drive, and
immediately northeast of an existing office park (Gateway Plaza). The Project site is located south of a regional
shopping center (Fashion Island) which is located north of Newport Center Drive. According to the City's
General Plan Figure LU3, Statistical Area Map, the Project site is within the City of Newport Beach's Newport
Center/Fashion Island Sub -Area (Statistical Area L1).
C. Project Description
As previously indicated, the Project Applicant (Newport Center Anacapa Associates, Inc.) submitted
applications to the City of Newport Beach for a Development Agreement (DA2020-001), a General Plan
Amendment (GP2020-001), a Zoning Code Amendment (CA2020-008), a Planned Community Development
Plan (PC2020-001) (referred to as the Residences at Newport Center Planned Community Development Plan
(PCDP)), a Major Site Development Review (SD2020-001), and a Tentative Tract Map (NT2020-001). These
applications are collectively referred to by the City of Newport Beach as file number PA2020-020. As
described in more detail below, PA2020-020 would allow for the entitlement of a 1.26 -acre property for the
demolition and removal of "The Newport Beach Car Wash" and the redevelopment of the site with a proposed
mid -rise residential building to consist of a 28 -unit residential condominium building with subterranean
parking.
1. Development Agreement No. DA2020-001
The Project Applicant and the City of Newport Beach propose to enter into a Development Agreement for the
proposed Project. California Government Code Sections 65864-65869.5 authorize the use of development
agreements between any city, county, or city and county, with any person having a legal or equitable interest
in real property for the development of the property. The Development Agreement would provide the Project
Applicant with the assurance that the development of the Project may proceed subject to the rules and
regulations in effect at the time of Project approval. The Development Agreement also would provide the City
of Newport Beach with the assurance that certain obligations of the Project Applicant would be met, including,
but not limited to, how the Project would be constructed, the required installation of public improvements, the
Applicant's contribution toward funding community improvements, and other conditions.
2. General Plan Amendment No. GP2020-001
The Project Applicant's proposed General Plan Amendment No. GP2020-001 would change the Project site's
existing land use designation from Regional Commercial Office (CO -R) to Multiple Residential (RM). As
stated in the General Plan, the RM land use designation is intended to provide primarily for multi -family
residential development containing attached or detached dwelling units. An amendment to the General Plan
Table LU2 (Anomaly Locations), would be required to create a new Anomaly Location for the Project site that
authorizes a maximum development density of 28 units. The new Anomaly would be created to accommodate
the increase in dwelling units within the Statistical Area. The Project site is currently included within Anomaly
35, which allows a maximum development intensity of 199,095 square feet. Therefore, Anomaly 35 would be
amended to reduce the allowed commercial square footage from 199,095 square feet to 197,010 square feet,
reflecting the removal of the carwash buildings on the project site.
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3. Zoning Code Amendment No. CA2020-008
The City of Newport Beach Zoning Code is contained as Title 20 "Planning and Zoning" of the City's
Municipal Code. Under existing conditions, the Project site is located within the "OR (Office Regional)
Zoning District." The on-site gas station is an ancillary use to the car wash, which is permitted via a use permit
in the OR zone (Use Permit No. UP1461). The Project Applicant's proposed Zoning Code Amendment No.
CA2020-008 seeks to change the site's existing zoning classification from OR to the "PC (Planned Community
District)" zoning classification. According to City Municipal Code Section 20.26.010(B) (Planned Community
Zoning District), the PC Zoning District is intended to provide for areas appropriate for the development of
coordinated, comprehensive projects that result in a superior environment.
4. Planned Community Development Plan No. PC2020-001
The Project Applicant proposes a Planned Community (PC) Development Plan (PCDP) to ensure broader
coordination and consistency with the surrounding neighborhood, including a higher level of architectural
quality supporting the Newport Center environment. Chapter 20.56 (Planned Community Development
District Procedures) of the City of Newport Beach Zoning Code regulates the establishment of a PC. The
ordinance allows for the diversification of uses as they relate to each other in a physical and environmental
arrangement while ensuring substantial compliance with the spirit, intent, and provisions of the Zoning Code.
Section 20.56.020 (Area Requirements) of the Zoning Code identifies a minimum acreage requirement of 10
acres of improved land area for the establishment of a PC District. As allowed by this Zoning Code Section,
the Project Applicant is requesting City Council to waive the minimum acreage requirement to establish the
proposed PC, because the Project site is 1.26 acres in size.
The PC District is a designation given to land for which a PCDP has been prepared and the PCDP is the
document that identifies land use relationships and associated development standards for that PC District. The
Project Applicant's proposed PCDP includes a specific set of standards and procedures for implementation
and continuation of dwelling units within Statistical Area Ll while ensuring substantial compliance with the
spirit, intent, and provisions of the Zoning Code. The Project's proposed PCDP text identifies general
conditions and regulations and provides for land use and development regulations for the Project site. The
proposed PCDP text is under review with the City of Newport Beach. Where the standards of the PCDP text
conflict with the regulations of the Newport Beach Municipal Code, the regulations contained in the PCDP
text would take precedence. The Newport Beach Municipal Code would continue to regulate all development
within the PCDP when such regulations are not provided within the PCDP text.
5. Major Site Development Review No. SD2020-001
Because the Project would consist of a residential development with five or more dwelling units with a tentative
map, Major Site Development Review No. SD2020-001 is required to fulfill the requirements of Newport
Beach Municipal Code Section 20.52.080 (Site Development Reviews). The primary purpose of the site
development review is to review the Project plans for compliance with the proposed PCDP text. As part of
Major Site Development Review No. SD2020-001, the City of Newport Beach would review the Project's
Plans, inclusive of the Tentative Tract Map and Site Plan.
6. Tentative Tract Map No. NT2020-001
The Applicant proposes a condominium subdivision map to establish a 28 -unit residential condominium tract
on the 1.26 -acre Project site. Tentative Tract Map No. NT2020-001 provides a legal description for the Project
site and shows the location of proposed and existing sewer lines, sewer lateral, existing driveway easements,
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fire hydrants, domestic and irrigation water lines, fire water lines, electric vaults, and the location of the
existing building on-site to be demolished. The Tentative Tract Map would allow each condominium unit to
be sold individually.
D. Ci of Newport Beach Actions Covered By the EIR
The following discretionary and administrative actions are required of the City of Newport Beach to implement
the Project. The EIR prepared for the Project covers all discretionary and administrative approvals which may
be needed to construct and implement the Project, whether or not they are explicitly listed below.
• Approve Development Agreement (DA2020-001);
• Approve General Plan Amendment (GP2020-001);
• Approve Zoning Code Amendment (CA2020-008);
• Approve Planned Community Development Plan (PC2020-001);
• Approve Major Site Development Review (SD2020-001);
• Approve Tentative Tract Map (NT2020-001);
• Approve final maps, parcel mergers, or parcel consolidations as may be necessary;
• Approve conditional or temporary use permits, if required;
• Approve water, sewer, and storm drain infrastructure design
• Issue grading permits;
• Issue building permits;
• Approve road improvement plans;
• Issue encroachment permits;
E. Approvals Required from Other Agencies
The following are the known approvals that would be required by other agencies:
• Santa Ana Regional Water Quality Control Board (RWQCB), National Pollutant Discharge
Elimination System (NPDES) Permit. NPDES permits apply to construction sites of one acre
or more. Project construction would disturb more than one acre of land; therefore, a NPDES
Permit from the Santa Ana RWQCB would be required.
• Orange County Health Care Agency (OCHCA), Approvals for Underground Storage Tank
Removal. The Project would require approval from the OCHCA, which oversees the
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underground storage tank (UST) inspection program throughout Orange County, including the
City of Newport Beach. The purpose of the OCHCA UST inspection program is to ensure that
hazardous materials stored in USTs are not released into the environment. The Project entails
the removal of three existing 12,000 -gallon USTs during the construction process; therefore,
to ensure no hazardous materials are released during the removal process, OCHCA would be
required to approve the removal.
F. Project Objectives
The underlying purpose and goal of the proposed Project is to redevelop an underutilized economically
challenged property in the Newport Center area with residential units located within walking distance to
employment, shopping, entertainment, and recreation. The following objectives are intended to achieve these
underlying purposes:
A. Redevelop an underutilized property with a use that is financially feasible to construct and operate.
B. Make efficient use of existing infrastructure by repurposing a property with a higher and better use
than currently occurs on the property.
C. Maximize the surface use of a redeveloped property by accommodating parking underground.
D. Increase the available housing stock within the City of Newport Beach and maximize the development
potential of the site by constructing a project with at least 22 dwelling units per acre.
E. Provide housing options for owner -occupied mid -rise multi -family flats in Newport Center to diversify
the range of available residential housing unit types.
F. Introduce a luxury, multi -family residential development in Newport Center that can attract households
in the surrounding area that are seeking low maintenance and single -level living options.
G. Provide anew multi -family residential development in Newport Center that is within walking distance
of, and has pedestrian connections to, employment, shopping, entertainment, public services, and
recreation.
H. Maintain high-quality architectural design in Newport Center by adding a building that has a
recognizable architectural style and that complements the architectural styles that exist in the
surrounding Newport Center community
I. Implement a residential development that provides on-site amenities for its residents.
J. Redevelop a property that uses outdated operational technologies with a new use that is designed to be
energy efficient and avoid the excessive use of energy and water.
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III. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION
The City of Newport Beach conducted an extensive environmental review of the Project to ensure that the
City's decision makers and the public are fully informed about potential significant environmental effects of
the Project; to identify ways that environmental damage can be avoided or significantly reduced; to prevent
significant, avoidable damage to the environment by requiring changes in the Project through the use of
mitigation measures which have been found to be feasible; and to disclose to the public the reasons why the
City has approved the Project in the manner chosen in light of the significant environmental effects which have
been identified in the EIR. In order to do this, the City of Newport Beach, acting as lead agency under CEQA,
undertook the following:
Prepared a CEQA Environmental Initial Study, dated November 5, 2020, to determine the scope
of the EIR and a Notice of Preparation (NOP), dated November 5, 2020, to indicate that an EIR
would be prepared to evaluate the Project's potential to impact the environment. The Notice of
Preparation identified the environmental issues to be analyzed in the Project's EIR as: Aesthetics,
Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas
Emissions, Hazards and Hazardous Materials, Land Use and Planning, Noise, Transportation,
Tribal Cultural Resources, Mandatory Findings of Significance;
• Filed the NOP with the California Office of Planning and Research (the "State Clearinghouse") for
distribution to Responsible Agencies, Trustee Agencies, and other interested parties on November
5, 2020, for a 30 -day public review period. The NOP was distributed for public review to solicit
responses that would help the City identify the full scope and range of potential environmental
concerns associated with the Project so that these issues could be fully examined in the EIR;
Held a publicly -noticed EIR Scoping Meeting on November 30, 2020, to solicit comments from
the public on the environmental issue areas that should be analyzed in the EIR. Due to the State
Emergency related to COVID-19 and as allowed pursuant to Executive Order N-29-20, the City of
Newport Beach hosted the EIR Scoping Meeting via an internet-based video and phone
conferencing service. The EIR Scoping Meeting provided public agencies, interested parties, and
members of the general public an additional opportunity to learn about the Project, the CEQA
review process, and how to submit comments on the scope and range of potential environmental
concerns to be addressed in the EIR;
• Sent a Notice of Completion and electronic copies of the Draft EIR to the California Office of
Planning and Research, State Clearinghouse, on April 29, 2021;
• Filed a Notice of Availability with the County of Orange Clerk -Recorder Department on April 29,
2021, informing the public that the Draft EIR was available for a 45 -day review period beginning
on April 29, 2021, and ending on June 14, 2021;
• Mailed the Notice of Availability to all Responsible Agencies, Trustee Agencies, other interested
parties, and organizations and individuals who had previously requested the Notice on April 29,
2021;
• Mailed the Notice of Availability to all property owners within a 300 -foot radius of the Project Site
on April 29, 2020;
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• Placed copies of the Draft EIR on the City's website, at the City of Newport Beach Community
Development Department public counter, and at the Newport Beach Public Library - Corona del
Mar Branch, Newport Beach Public Library - Balboa Branch, Newport Beach Public Library —
Mariners Branch, and the Newport Beach Public Library — Central Library.
• Published the Notice of Availability in the City of Newport Beach News Splash on April 29, 2021;
• Published the Notice of Availability in the Daily Pilot which is the newspaper of general circulation
in the area affected by the Project on May 1, 2021;
• Prepared responses to comments on the Draft EIR received during the 45 -day comment period on
the Draft EIR, which have been included in the Final EIR;
• Published a notice on August 7, 2021, in the Daily Pilot, the newspaper of general circulation in
the area affected by the Project, that the Planning Commission would hold a public hearing on
August 19, 2021, to recommend to the City Council the certification of the Final EIR as having
been prepared in compliance with CEQA and the approval of the Project;
• Mailed notice of the Planning Commission hearing to all property owners within a 300 -foot radius
of the Project Site on August 5, 2021.
• Sent notice of the Planning Commission's hearing to all organizations and individuals who had
previously requested notification of anything having to do with the Project on August 11, 2021;
• Held a public hearing of the Planning Commission on August 19, 2021;
• Published a notice on September 18, 2021, in the Daily Pilot, the newspaper of general circulation
in the area affected by the Project, that the City Council would hold a hearing on September 28,
2021, to consider certification of the Final EIR as having been prepared in compliance with CEQA
and approve the Project;
• Mailed notice of the City Council hearing to all property owners within a 300 -foot radius of the
Project Site on September 18, 2021;
• Sent notice of the City Council's hearing to all organizations and individuals who had previously
requested notification of anything having to do with the Project on September 18, 2021;
• Held a public hearing of the City Council on September 28, 2021 and, after full consideration of
all comments, written and oral, certified that the Final EIR had been completed in compliance with
CEQA and approved the Project;
All of the documents and notices identified above and all of the documents and sources of information that are
required to be part of the Project's administrative record pursuant to Public Resources Code §21167.6(e) are
on file with the City of Newport Beach Community Development Department located at 100 Civic Center
Drive, First Floor Bay B, Newport Beach, California, 92660. Questions should be directed to Liz
Westmoreland, Associate Planner with the City's Community Development Department.
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IV. INDEPENDENT JUDGMENT FINDING
Finding: The EIR for the Project reflects the City's and the City Council's independent judgment and
analysis.
Facts in Support of the Finding: The EIR was prepared by T&B Planning, Inc., an independent consulting
firm hired and funded by the City of Newport Beach and working under
the supervision and direction of Planning Division staff of the City of
Newport Beach Community Development Department. The City Council,
as the City's final decision-making body for the Project, received and
reviewed the Final EIR and the comments, written and oral, provided by
public agencies and members of the public prior to certifying that the Final
EIR complied with CEQA. The professional qualifications and reputation
of the EIR Consultant, the supervision and direction of the EIR Consultant
by City staff, the thorough and independent review of the Draft EIR and
Final EIR, including comments and responses, by City staff, the review
and careful consideration by the Planning Commission of the Final EIR,
including comments and responses, and the review and careful
consideration by the City Council of the Final EIR, including comments
and responses, all conclusively show that the Final EIR is the product of
and reflects the independent judgment and analysis of the City of Newport
Beach as the Lead Agency, and of the City Council as the decision-making
body for the Project.
V. FINDING OF NO LEGAL REQUIREMENT TO RECIRCULATE THE EIR
Finding: The City Council finds that the Final EIR does not add significant new information to the Draft
EIR (subsequently referred to as "Draft EIR" or "DEIR") that would require recirculation of the
EIR.
Facts in Support of the Finding: The City Council recognizes that the Final EIR incorporates information
obtained and produced after the Draft EIR was completed and that the
Final EIR contains additions, amplifications, clarifications, and minor
modifications to the Draft EIR. The City Council has reviewed and
considered the Final EIR and all of the information contained in the Final
EIR and has determined that the new information added to the Final EIR
does not involve a new significant environmental impact, a substantial
increase in the severity of an environmental impact, nor a feasible
mitigation measure or an alternative considerably different from others
previously analyzed that the Project applicant declined to adopt and that
would clearly lessen the significant environmental impacts of the Project.
No information provided to the City Council indicates that the Draft EIR
was inadequate or conclusory or that the public was deprived of a
meaningful opportunity to review and comment on the Draft EIR.
VI. GENERAL FINDING ON MITIGATION MEASURES
In preparing the Conditions of Approval for this Project, City staff incorporated the mitigation measures
recommended in the EIR and its MMRP as applicable to the Project. In the event that the Conditions of
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Approval do not use the exact wording of the mitigation measures recommended in the EIR, in each such
instance, the adopted Conditions of Approval are intended to be identical or substantially similar to the
recommended mitigation measure. Any minor revisions were made for the purpose of improving clarity or to
better define the intended purpose.
Finding: Unless specifically stated to the contrary in these Findings, it is the City's intent to adopt all
mitigation measures recommended by the EIR that are applicable to the Project. If a measure has,
through error, been omitted from the Conditions of Approval or from these Findings, and that
measure is not specifically reflected in these Findings, that measure shall be deemed to be adopted
pursuant to this paragraph. In addition, unless specifically stated to the contrary in these Findings,
all Conditions of Approval repeating or rewording mitigation measures recommended in the EIR
are intended to be substantially similar to the mitigation measures recommended in the EIR and
are found to be equally effective in avoiding or lessening the identified environmental impact. In
each instance, the Conditions of Approval contain the final wording for the mitigation measures.
VII. ENVIRONMENTAL IMPACTS AND FINDINGS
City staff reports, the EIR, written and oral testimony at public meetings or hearings, these Facts and Findings,
and other information in the administrative record, serve as the basis for the City's environmental
determination.
An Initial Study was prepared for the proposed Project, which is included as Technical Appendix A to the EIR.
Through the Initial Study process, the City determined that the proposed Project could potentially cause
adverse environmental effects, and that an EIR was required. The City also determined that the Project had no
potential to result in significant adverse effects to the 11 primary environmental subject areas, including:
Aesthetics, Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas
Emissions, Hazards and Hazardous Materials, Land Use and Planning, Noise, Transportation, and Tribal
Cultural Resources. Additionally, it was determined as part of the Project's Initial Study that the Project clearly
would have no impact or a less -than -significant impact under some, but not all, of the thresholds of significance
under the issue areas of Agriculture and Forestry Resources, Energy, Hydrology and Water Quality, Mineral
Resources, Population and Housing, Public Services, Recreation, Utilities and Service Systems, and Wildfire.
Therefore, those thresholds of significance were not required to be analyzed in detail in EIR Section 4.0,
Environmental Analysis. The discussion of issues (and the additional distinct thresholds) found not to be
significant as part of the Initial Study process is presented in Subsection 5.0, Other CEQA Considerations, of
the EIR. The City concurs with the conclusion of the Initial Study that the issues discussed under Subsection
VILA, below, were found to have no significant impact.
The detailed analysis of potentially significant environmental impacts of the Project and proposed mitigation
measures for the Project are presented in Section 4.0 of the EIR. Responses to comments from the public and
other government agencies on the EIR are provided in Section F.2 of the Final EIR.
The EIR evaluated thresholds for 11 primary environmental subject areas for potential impacts, including:
Aesthetics, Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas
Emissions, Hazards and Hazardous Materials, Land Use and Planning, Noise, Transportation, and Tribal
Cultural Resources.
Both Project -specific and cumulative impacts were evaluated. The City concurs with the conclusions of the
EIR that the issues and sub -issues discussed in Subsections VII.B and C, below, were found to have either no
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significant and unavoidable environmental impacts or that the environmental impacts could be mitigated to a
level of less than significant.
A. Impacts Found Not to be Significant as Part of the Initial Study Process
1. Aesthetics
a. Scenic Resources within a State Scenic Highway
Potential Significant Impact: Whether the Project would substantially damage scenic resources, including,
but not limited to, trees, rock outcroppings, and historic buildings within a
State scenic highway? (Initial Study Threshold b)
Finding: Impacts related to Aesthetics Threshold b are discussed in Subsection 5.4.1 of the EIR. Based on
the entire record, the City finds that the Project would not have a substantial adverse effect to
Aesthetics Threshold b, and no mitigation is required.
Facts in Support of the Finding: According to the California Department of Transportation's (Caltrans)
List of Eligible and Officially Designated Scenic Highways, there are no
Officially Designated State scenic highways in the City of Newport Beach.
Portions of SR -1 are identified as "Eligible" for State Scenic Highway
designation, including the segment of SR -1 located approximately 0.31 -
mile south of the Project site. Due to intervening development and
topography, no portion of the Project site is visible from SR -1 under
existing conditions; however, given that the Project's building would be
four stories tall, the upper floor of the proposed structure has the potential
to be visible from portions of SR -1, in the viewshed looking north toward
Fashion Island. The Project site is located north of SR -1 in a highly
urbanized area near other similarly sized buildings in and around Fashion
Island and south Newport Center. Because the Project site and its existing
features are not currently visible from SR -1, the demolition and removal
of existing features would have no effect on the viewshed of SR -1. When
the Project is developed as proposed, the residential condominium
structure would be a compatible height to other nearby structures in
Newport Center and has no reasonable potential to damage scenic
resources visible from SR -1. Further, because SR -1 is not an Officially
Designated State scenic highway corridor, the Project would have no
potential impact to scenic resources visible from a State scenic highway.
(DEIR p. 5-6)
2. Agriculture and Forestry Resources
Potential Significant Impact: Whether the Project would have a substantial adverse effect to Agriculture
and Forestry Resources. (Initial Study Thresholds a, b, c, d, and e)
Finding: Impacts related to Agriculture and Forestry Resources are discussed in Subsection 5.4.2 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect to Agriculture and Forestry Resources, and no mitigation is required.
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Facts in Support of the Finding: According to the California Department of Conservation's California
Important Farmland Finder, the Project site and immediately surrounding
areas do not contain any lands that are mapped by the California Resources
Agency as Prime Farmland, Unique Farmland, or Farmland of Statewide
Importance ("Important Farmland"). The Project site is designated as
"Urban and Built -Up Land. The Project site is not zoned for agricultural
use, is not under a Williamson Act contract, and is not surrounded by lands
zoned for agricultural use.
There are no lands within the City of Newport Beach, including the Project
site and properties surrounding the Project site, that are zoned for forest
land, timberland, or timberland zoned Timberland Production.
As such, the proposed Project has no potential to convert Prime Farmland,
Unique Farmland, or Farmland of Statewide Importance (Farmland), as
shown on the maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Resources Agency, to non-
agricultural use, conflict with existing zoning for agricultural use, or a
Williamson Act contract, and has no potential to conflict with existing
zoning for, or cause rezoning of, forest land, timberland, or timberland
zoned Timberland Production or result in the loss of forest land to non -
forest use. (DEIR pp. 5-6 to 5-7).
3. Air Quality
a. Other Emissions / Odors
Potential Significant Impact: Whether the Project would result in other emissions (such as those leading to
odors) adversely affecting a substantial number of people. (Initial Study
Threshold d)
Finding: Impacts related to Air Quality Threshold d are discussed in detail in Subsection 5.4.3 of the EIR.
Based on the entire record, the City finds that the Project would not result in other emissions (such
as those leading to odors) adversely affecting a substantial number of people, and no mitigation is
required.
Facts in Support of the Finding: The Project site is a 1.26 -acre property that has been developed as a car
wash with ancillary gas station and convenience market since
approximately 1970. The replacement of these uses with a 28 -unit
residential condominium building would result in fewer air emissions and
odor potential in the long-term, particularly associated with removal of the
gas station. A residential structure is a land use that is not typically
associated with emitting objectionable air pollutants and odors.
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Facts and Findings
The potential for adverse odor sources associated with the Project is
limited to demolition and construction equipment exhaust and the
application of asphalt and architectural coatings during construction
activities and the temporary storage of typical municipal solid waste
(refuse) during the Project's lifetime. Construction -related odors would be
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Facts in Support of the Finding: The Project site has been fully developed with a car wash and ancillary
services since 1970. Vegetation located on and near the Project site is
ornamental landscaping. As shown in Figure NRI, Biological Resources,
of the City of Newport Beach's General Plan, the Project site and
surrounding area do not contain any riparian habitat or other sensitive
natural community. Implementation of the proposed Project would have
no reasonable potential to result in substantial adverse effects on riparian
habitat or other sensitive natural community. No impact would occur.
(DEIR p. 5-9)
b. Federally -Protected Wetlands
Potential Significant Impact: Whether the Project would have a substantial adverse effect on State- or
federally -protected wetlands (including, but not limited to, marsh, vernal
pool, coastal, etc.) through direct removal, filling, hydrological interruption,
or other means. (Initial Study Threshold c)
Finding: Impacts related to Biological Resources Threshold c are discussed in detail in Subsection 5.4.4 of
the EIR. Based on the entire record, the City finds that the Project would not impact any State- or
federally -protected wetlands (including, but not limited to, marsh, vernal pool, coastal, etc.)
through direct removal, filling, hydrological interruption, or other means, and no mitigation is
required.
Facts in Support of the Finding: The Project site has been fully developed with a car wash and ancillary
services since 1970. Vegetation located on and near the Project site is
ornamental landscaping. The Project site does not contain any wetland
habitat or any other naturally occurring water features; therefore, because
no State or federally protected wetlands occur on the site, the proposed
Project has no potential to result in a substantial adverse effect on wetlands
through direct removal, filling, hydrological interruption, or other means.
No impact would occur. (DEIR p. 5-9)
c. Wildlife Movement, Wildlife Corridor, Wildlife Nursery Sites
Potential Significant Impact: Whether the Project would interfere substantially with the movement of any
resident or migratory fish or wildlife species or with established native
resident migratory wildlife corridors, or impede the use of native wildlife
nursery sites. (Initial Study Threshold d)
Finding: Impacts related to Biological Resources Threshold d are discussed in detail in Subsection 5.4.4 of
the EIR. Based on the entire record, the City finds that the Project does not have the potential to
interfere substantially with the movement of any native resident or migratory wildlife corridors, or
impede the use of native wildlife nursery sites, and no mitigation is required.
Facts in Support of the Finding: The Project site has been fully developed with a car wash and ancillary
services since 1970 and is completely surrounded by public roads and
office and commercial development. The Project site does not serve as a
wildlife corridor, nursery, or otherwise facilitate the movement of native
resident or migratory fish or wildlife species. There is no reasonable
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potential for the Project to substantially interfere with wildlife movement.
The only potential for migratory species to be present is the potential for
migratory birds to nest in trees that would be removed to construct the
Project. Nesting habitat would be replaced as part of Project
implementation with the planting of new trees as part of the Project's
landscaping plan. Migratory birds are protected under the federal
Migratory Bird Treaty Act (MBTA). (DEIR p. 5-9)
d. Local Policies and/or Ordinances Protectin Biological Resources
Potential Significant Impact: Whether the Project would conflict with any local policies or ordinances
protecting biological resources, such as a tree preservation policy or
ordinance. (Initial Study Threshold e)
Finding: Impacts related to Biological Resources Threshold a are discussed in detail in Subsection 5.4.4 of
the EIR. Based on the entire record, the City finds that the Project would not conflict with any local
policies or ordinances protecting biological resources and no mitigation is required.
Facts in Support of the Finding: Project implementation would require tree removals and the planting of
new trees. Tree removals would entail 28 existing on-site trees and trees
in the Anacapa Drive and Newport Center Drive right-of-way segments
fronting the Project site. As part of the Project's landscaping plan, the
street trees would be replaced with new trees and new trees also would be
planted on the Project site around the perimeter of the building in open
areas. The Project is in compliance with City Council Policy G-1. The
purpose of Council Policy G-1 is to "establish and maintain appropriate
diversity in tree species and age classes to provide a stable and sustainable
urban forest with an inventory that the City can reasonably maintain in a
healthy and safe condition through the efficient use of City resources"
Pursuant to Council Policy G-1 provisions for "All Other City Trees," (i.e.,
those not designated as Special or Problem Trees) it is the policy of the
City Council to review and approve the Project's landscaping plan during
public hearings for the Project. Because the Project Applicant proposes to
replace the removed trees, including trees in the Anacapa Drive and
Newport Center Drive rights-of-way, and because the City Council will
have the authority to review and approve the Project's landscaping plan to
ensure overall consistency with City Council Policy G-1, impacts
associated with this issue would be less than significant.
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Facts and Findings
The Project site is not located within or contiguous to any of the
Environmental Study Areas (ESAs) identified by the Newport Beach
General Plan EIR Figure 4.3-2. No other local policies addressing
biological resources apply to the Project. Due to the Project's location
within a highly urbanized portion of the City of Newport Beach and
because the site contains no natural habitat, Chapter 7.26 of the City's
Municipal Code (Protection of Natural Habitat for Migratory and Other
Waterfowl) is not applicable. Similarly, General Plan Policy NR 10.1,
which requires future development to cooperate with State and federal
agencies and private organizations in the protection of biological
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resources, is not applicable due to the lack of natural habitat and biological
resources on the Project site. The Project site does not contain any
terrestrial or marine resources that require protection, as the Project site is
fully developed under existing conditions. Accordingly, the Project would
not involve nor require any consultation with state and federal resource
protection agencies or private organizations concerned with the protection
of sensitive biological resources. The Project would not conflict with any
of the City's other General Plan Policies related to biological resources for
the same reason of lack of on-site sensitive biological resources. Impacts
would be less than significant. (DEIR p. 5-10)
e. Adopted Habitat Conservation Plan, Natural Community Conservation Plan, or Other
Approved Local, Regional, or State Habitat Conservation Plan
Potential Significant Impact: Whether the Project would conflict with the provisions of an adopted Habitat
Conservation Plan, Natural Conservation Community Plan, or other approved
local, regional, or State habitat conservation plan. (Initial Study Threshold f)
Finding: Impacts related to Biological Resources Threshold f are discussed in detail in Subsection 5.4.4 of
the EIR. Based on the entire record, the City finds that the Project would not conflict with the
provisions of an adopted Habitat Conservation Plan, Natural Conservation Community Plan, or
other approved local, regional, or State habitat conservation plan, and no mitigation is required.
Facts in Support of the Finding: The Project site is within the Central and Coastal Orange County
NCCP/HCP, which does not identify the Project site and surrounding areas
for conservation (Orange County, 2019). Due to the developed nature of
the Project site, the site also does not contain any habitat or any of the
plant or animal species addressed by the NCCP/HCP. Accordingly, the
Project has no potential to conflict with the NCCP/HCP. There are no
additional Habitat Conservation Plans, Natural Community Conservation
Plans, or other approved local, regional, or state habitat conservation plans
applicable to the Project site or vicinity. Accordingly, no impact would
occur. (DEIR p. 5-10)
5. Cultural Resources
a. Disturbance of Human Remains Outside Formal Cemeteries
Potential Significant Impact: Whether the Project would disturb any human remains, including those
interred outside formal cemeteries (Initial Study Threshold c).
Finding: Impacts related to Cultural Resources Threshold c are discussed in detail in Subsection 5.4.5 of the
EIR. Based on the entire record, the City finds that the Project's potential to disturb human remains,
including those interred outside formal cemeteries, would be less than significant, and no
mitigation is required.
Facts in Support of the Finding: The Project site is a 1.26 -acre property that has been developed as a car
wash with ancillary gas station and convenience market since
approximately 1970. The Project site is not known to have ever been used
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as a cemetery and the possibility of uncovering human remains during site
grading activities is remote due to the previous development at the site.
However, in the unlikely event that human remains are encountered,
compliance with California Health and Safety Code Section 7050.5 would
be required. Mandatory compliance with these provisions of California
state law would ensure that impacts to human remains, if unearthed during
construction activities, would be appropriately treated and ensure that
potential impacts are less than significant. Potential impacts associated
with potential inadvertent discoveries of human remains would be reduced
to less than significant through mandatory compliance with California
Health and Safety Code Section 7050.5. (DEIR p. 5-11).
6. Energy
Potential Significant Impact: Whether the Project would result in a potentially significant environmental
impact due to wasteful, inefficient, or unnecessary consumption of energy, or
wasteful use of energy resources, during Project construction or operation,
and whether the Project would conflict with or obstruct a State or local plan
for renewable energy or energy efficiency. (Initial Study Thresholds a and b)
Finding: Impacts related to Energy are discussed in Subsection 5.4.6 of the EIR. Based on the entire record,
the City finds that the Project would not result in a potentially significant environmental impact
due to wasteful, inefficient, or unnecessary consumption of energy, and would not conflict with or
obstruct a State or local plan for renewable energy or energy efficiency.
Facts in Support of the Finding: The Project's construction process would consume electricity and fuel.
Project -related construction activities would represent a "single -event"
demand and would not require on-going or permanent commitment of
energy resources. Fuel consumed by construction equipment and
construction worker and vendor trips would be the primary energy
resource expended over the course of Project -related construction. The
equipment used for Project construction would conform to California Air
Resources Board (CARE) regulations and California emissions standards.
Project -related construction activities are not materially different than
other construction projects that occur in Orange County and there are no
unusual Project characteristics or construction processes that would
require the use of equipment that would be more energy -intensive than is
used for comparable construction projects. The expected construction
equipment fleet is listed in the Project's Construction Management Plan
on file with the City of Newport Beach. All Project -related construction
equipment would be required to conform to current emissions standards
(and related fuel efficiencies). As supported by the preceding discussion,
the Project's construction -related energy consumption would not be
considered inefficient, wasteful, or otherwise unnecessary.
The Project does not propose uses or operations that would inherently
result in excessive and wasteful energy use. Residents and visitors would
travel to and from the Project by passenger vehicles, and occasional trucks
are assumed for deliveries and to service the building (large item
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deliveries, trash pickup, etc.) All vehicles are required by law to have
enhanced vehicle fuel economies pursuant to federal and State laws, and
the transition of passenger vehicles and trucks to alternative energy
sources (e.g., electricity, natural gas, bio fuels, hydrogen cells) are
expected to decrease gasoline fuel demands in the future. In June 2020,
the California Air Resources Board (CARE) adopted a new Advanced
Clean Truck Regulation Rule requiring truck manufacturers to transition
from diesel trucks and vans to electric zero -emission trucks beginning in
2024. By 2045, every new truck sold in California will be required to be
zero -emission electric. In September 2020, California Governor Newsom
issued Executive Order N-70-20, which states that it is a goal of the State
that 100 percent of in-state sales of new passenger cars and trucks will be
zero -emission by 2035. Based on the Project's location with shopping,
restaurant, entertainment, personal service, and office uses all within a
0.25 -mile radius, the provision of electric vehicle (EV) capability in the
building's garages and guest spaces, and the transition to zero -emission
vehicles in California, Project transportation -related energy consumption
would not be considered inefficient, wasteful, or otherwise unnecessary.
The Project would not cause or result in the need for additional energy
facilities or an additional or expanded energy delivery system; existing
utility connections are site -adjacent. Building operations and site
maintenance activities associated with the Project would consume
electricity and potentially natural gas. Natural gas would be supplied to
the Project by Southern California Gas Company (SoCalGas) and
electricity would be supplied by Southern California Edison (SCE). For
new development, compliance with California Building Standards Code,
Title 24, Part 6, Energy Efficiency Standards and California Green
Building Standards Code (CALGreen) is considered demonstrable
evidence of efficient use of energy. The proposed building would be
required to promote and provide for energy efficiencies as required by
CALGreen, and in so doing would meet all California Building Standards
Code Title 24 standards. There is no reasonable potential that the
Project's operation would result in environmental impacts associated with
the wasteful, inefficient, or unnecessary consumption of energy, or the
wasteful use of energy resources; therefore, impacts would be less than
significant.
There are no adopted State plans for renewable energy or energy
efficiency that are directly applicable to the proposed Project. Thus, the
Project would have no potential to conflict with such plans, and no impact
would occur. The Project would be consistent with or otherwise would
not conflict with policies and requirements related to energy conservation.
The City of Newport Beach's Energy Action Plan (EAP) focuses on
reducing energy usage by City facilities and conducting community -wide
energy awareness and outreach programs. The Project is required to be
energy-efficient per the California Building Standards Code Title 24, Part
6, Energy Efficiency Standards (California Energy Code), and thereby
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consistent with the City's EAP. California Code of Regulations Title 24
Part 6: California's Energy Efficiency Standards for Residential and
Nonresidential Buildings, was first adopted in 1978 in response to a
legislative mandate to reduce California's energy consumption. The 2019
version of Title 24 was adopted by the California Energy Commission
(CEC) and became effective on January 1, 2020 and is applicable to the
Project. Compliance with the applicable Title 24 requirements is enforced
through the City of Newport Beach Municipal Code Chapter 15.17,
Energy Code. Thus, Project consistency with Title 24 requirements would
occur as part of the City's review of building permit applications. The
Project's building shell and components, such as windows; roof systems:
electrical and lighting systems: and heating, ventilating, and air
conditioning systems would be required to meet applicable Title 24
Standards. Because the Project is required by State law and City
Municipal Code standards to be designed, constructed, and operated to
meet or exceed all applicable energy efficiency standards, the Project
would not conflict with or obstruct a State or local plan for renewable
energy or energy efficiency. Accordingly, impacts would be less than
significant. (DEIR pp. 5-11 to 5-13)
7. Geology and Soils
a. Known Earthquake Fault, Strong Seismic Ground Shaking, Seismic -related Ground Failure.
and Landslides
Potential Significant Impact: Whether the Project would directly or indirectly cause potential substantial
adverse effects, including the risk of loss, injury, or death involving: i)
Rupture of a known earthquake fault, as delineated on the most recent
Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist
for the area or based on other substantial evidence of a known fault; ii) Strong
seismic ground shaking; iii) Seismic -related ground failure, including
liquefaction; iv) Landslides. (Initial Study Threshold a)
Finding: Impacts related to Geology and Soils Threshold a are discussed in Subsection 5.4.7 of the EIR.
Based on the entire record, the City finds that the Project would not directly or indirectly cause
potential substantial adverse effects, including the risk of loss, injury, or death involving: i) Rupture
of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault
Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a
known fault; ii) Strong seismic ground shaking; iii) Seismic -related ground failure, including
liquefaction; iv) Landslides. No mitigation is required.
Facts in Support of the Finding: As with much of the southern California region, the Project site is in a
seismically active area. The Project site is not located within an Alquist-
Priolo Earthquake Fault Zone and no known faults underlie the site;
therefore, there is no potential of ground rupture. According to the Project
site's Geotechnical Feasibility Study prepared by NMG Geotechnical, Inc.
(NMG), the Project site is not located in an area classified by the State as
having soils that are potentially liquefiable or in an area mapped as
susceptible to seismically induced landslides. Moreover, the Project site
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is not located in an area that is subject to potential liquefaction hazards.
Accordingly, impacts due to seismic -related ground failure (including
liquefaction) would be less than significant. Additionally, due to the
relatively flat gently sloping nature of the Project site and immediately
surrounding areas, the Project site has no potential to be affected by
landslides. No impacts would occur.
As with most structures in southern California, the proposed Project could
be subject to ground shaking during seismic events along local and
regional faults that would occur during the lifetime of the proposed
Project. Construction of the Project is required to comply with the
California Building Standards Code (CALGreen) and the City of Newport
Beach Municipal Code Title 15, Buildings and Construction, and the
Project Applicant would be required by the City of Newport Beach as part
of its grading and building permits to implement the recommendations
identified in the Project's Geotechnical Feasibility Study prepared by
NMG, which is on file with the City. State law requires that all cities and
counties in California enforce the building codes as mandated by the
California Building Standards Commission. With the Project's mandatory
compliance with these standard and site-specific design and construction
measures, potential impacts related to seismic ground shaking would be
less than significant. (DEIR pp. 5-13 to 5-14)
b. Substantial Soil Erosion of the Loss of Topsoil
Potential Significant Impact: Whether the Project would result in substantial soil erosion or the loss of
topsoil. (initial Study Threshold b)
Finding: Impacts related to Geology and Soils Threshold b are discussed in Subsection 5.4.7 of the EIR.
Based on the entire record, the City finds that the Project would not result in substantial soil erosion
or the loss of topsoil.
Facts in Support of the Finding: The proposed demolition and grading activities associated with the Project
would temporarily expose underlying soils to water and air, which would
increase erosion susceptibility while the soils are exposed. Exposed soils
would be subject to erosion during rainfall events or high winds due to the
removal of structures, pavement, and/or stabilizing vegetation and
exposure of these erodible materials to wind and water. Erosion by water
would be greatest during the first rainy season after grading and before the
Project's foundation is constructed and paving and landscaping occur.
Erosion by wind would be highest during periods of high wind speeds
when soils are exposed. The Project Applicant would be required to obtain
coverage under a National Pollutant Discharge Elimination System
(NPDES) permit for construction activities. The NPDES permit is
required by the Santa Ana Regional Water Quality Control Board
(RWQCB) for all projects that include construction activities, such as
clearing, grading, and/or excavation that disturb at least one acre of total
land area. Additionally, during grading and other construction activities,
the Project would be subject to the requirements established in City of
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Newport Beach Municipal Code, Chapter 23.35, Water Quality Control,
and the Project Applicant also would be required to prepare and implement
a Stormwater Pollution Prevention Plan (SWPPP) that would identify the
erosion control measures, such as construction fencing, sandbags, and
other erosion -control features, that would be implemented during the
construction phase to reduce the potential for soil erosion or the loss of
topsoil. In addition, construction activities associated with the Project
would be required to comply with SCAQMD Rule 403 -Fugitive Dust,
which would minimize wind -related erosion hazards during construction
activities. Mandatory compliance with the Project's NPDES permit,
SWPPP, and the regulatory requirements of the City of Newport Beach
and the SCAQMD would ensure that water and wind erosion are
minimized and not substantial. As such, construction of the Project would
result in a less -than -significant impact.
After construction, the Project would be fully developed with impervious
surfaces and landscaping, offering no reasonable potential for substantial
erosion to occur. The Project's storm water is proposed to drain towards
the southwest portion of the site into a catch basin, and then discharge into
the City's municipal separate storm sewer system (MS4). All development
within the City of Newport Beach, including the Project, is subject to the
provisions of the City's NPDES MS4 Permit and the Orange County
Drainage Area Master Plan (DAMP). DAMP provisions include the
implementation of appropriate best management practices (BMPs)
including a range of methods that minimize off-site erosion, including but
not limited to hydrodynamic devices, swales/biofilters, basins, and various
filters. The Project would comply with the DAMP by installing Project
design features, as specified in the Project's required Preliminary Water
Quality Management Plan (WQMP) prepared by Fuscoe Engineering,
which is on file at the City of Newport Beach. The Project would result
in a nominal increase in the runoff rate and/or runoff volume as compared
to the existing condition, which would not result in any significant siltation
or erosional effects associated with water discharge. As such,
implementation of the Project would result in a less -than -significant
impact. (DEIR pp. 5-14 to 5-15)
c. Septic Tanks or Alternative Waste Disposal Systems
Potential Significant Impact: Whether the Project would have soils incapable of adequately supporting the
use of septic tanks or alternative wastewater disposal systems where sewers
are not available for the disposal of wastewater. (Initial Study Threshold e)
Finding: Impacts related to Geology and Soils Threshold a are discussed in Subsection 5.4.7 of the EIR.
Based on the entire record, the City finds that the Project would not have soils incapable of
adequately supporting the use of septic tanks or alternative wastewater disposal systems where
sewers are not available for the disposal of wastewater, and no mitigation is required.
Facts in Support of the Finding: Under existing conditions, the City's municipal sewer system serves
the Project site. The Project would include facilities that would also
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connect to the City's municipal sewer system. No septic tanks or
alternative wastewater disposal systems are proposed as part of the
Project; therefore, no impact would occur. (DEIR p. 5-15)
8. Hazards and Hazardous Materials
a. Hazardous Emissions, Materials, Substances or Waste within One-quarter Mile of a School
Potential Significant Impact: Whether the Project would emit hazardous emissions or handle hazardous or
acutely hazardous materials, substances, or waste within one-quarter mile of
an existing or proposed school. (Initial Study Threshold c)
Finding: Impacts related to Hazards and Hazardous Materials Threshold c are discussed in Subsection 5.4.8
of the EIR. Based on the entire record, the City finds that the Project would not emit hazardous
emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-
quarter mile of an existing or proposed school and no mitigation is required.
Facts in Support of the Finding: The nearest school facility to the Project site is the Harbor View
Elementary School, which is located approximately 0.61 -mile
southeast of the Project site; therefore, there are no existing or proposed
schools within one-quarter mile of the site. The Project entails
development of the site with residential land uses, which is a use not
associated with hazardous emissions or the storage or use of acutely
hazardous materials, substances, or waste. Therefore, the Project
would not emit hazardous emissions or handle hazardous or acutely
hazardous materials, substances, or waste within one-quarter mile of an
existing or proposed school. No impact would occur. (DEIR p. 5-15)
b. List of Hazardous Materials Sites
Potential Significant Impact: Whether the Project would be located on a site which is included on a list of
hazardous materials sites which compiled pursuant to Government Code
Section 65962.5 and, as a result, would it create a significant hazard to the
public or the environment. (Initial Study Threshold d)
Finding: Impacts related to Hazards and Hazardous Materials Threshold d are discussed in Subsection 5.4.8
of the EIR. Based on the entire record, the City finds that the Project would not be located on a site
which is included on a list of hazardous materials sites which compiled pursuant to Government
Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the
environment and no mitigation is required.
Facts in Support of the Finding: A review of the California Environmental Protection Agency's
(CaIEPA) Cortese List Data Resources (which lists the facilities/sites
identified as meeting the "Cortese List" requirements) indicates that the
Project site is not included on a list of hazardous materials sites
compiled pursuant to Government Code Section 65962.5 (CaIEPA,
2020). Therefore, the Project has no potential to create a significant
hazard to the public or the environment due to the presence of an
existing hazardous materials site identified on a list compiled pursuant
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to Government Code Section 65962.5. No impact would occur. (DEIR
p. 5-15)
c. Airport Land Use Plan
Potential Significant Impact: For a project within an airport land use plan or, where such a plan has not
been adopted, within two miles of a public airport or public use airport,
whether the project would result in a safety hazard or excessive noise for
people residing or working in the project area. (Initial Study Threshold e)
Finding: Impacts related to Hazards and Hazardous Materials Threshold a are discussed in Subsection 5.4.8
of the EIR. Based on the entire record, the City finds that the Project would not result in a safety
hazard or excessive noise for people residing or working in the project area, for a project within an
airport land use plan or, where such a plan has not been adopted, or within two miles of a public
airport or public use airport. No mitigation is required.
Facts in Support of the Finding: John Wayne Airport (JWA) is located approximately 3.6 miles
north/northeast of the Project site and is the nearest public airport to the
Project site. Within the Notification Area boundary, ALUC must be
notified of any proposed construction or structural alterations involving
a land use or legislative amendment in the AELUP Planning Area,
development that exceeds 200 feet above ground level, and all heliports
or helistops. In addition, projects that surpass 200 feet above ground
level must also file Form 7460-1 with the Federal Aviation
Administration (FAA).
Based on the AELUP, the Project would not result in a safety hazard
for people residing or working in the area. The Project site is located
approximately 19,200 feet south from the nearest point of the JWA
runway. As detailed in the AELUP for JWA, the subject parcel is not
located within the AELUP Part 77 Notification Area for JWA. Because
the Project's proposed building would not exceed 200 feet in height,
and is not located within the FAA notification area, ALUC review
would not be required and the Project's proposed building would not
pose an obstruction.
Additionally, according to the AELUP Appendix D, the Project site is
not within the 60 A -weighted decibel (dB) Community Noise
Equivalent Level (CNEL) contour, within Runway Protection Zones,
or within Safety Zones. Therefore, the Project would not result in a
safety hazard for people residing or working in the area. No impact
would occur. (DEIR p. 5-16)
d. Emergency Response Plan or Emergency Evacuation Plan
Potential Significant Impact: Whether the Project would impair implementation of or physically interfere
with an adopted emergency response plan or emergency evacuation plan.
(Initial Study Threshold f)
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Finding: Impacts related to Hazards and Hazardous Materials Threshold f are discussed in Subsection 5.4.8
of the EIR. Based on the entire record, the City finds that the Project would not impair
implementation of or physically interfere with an adopted emergency response plan or emergency
evacuation plan and no mitigation is required.
Facts in Support of the Finding: The City of Newport Beach adopted the City of Newport Beach
Emergency Operations Plan (EOP), prepared by the City of Newport
Beach Fire Department (NBFD), in September 2011. The EOP does
not identify any specific requirements for the Project site, nor is the site
identified by the EOP as being part of an emergency evacuation route,
nor is the site directly adjacent to an emergency evacuation route.
McArthur Boulevard, located 0.3 -mile east of the Project site, is the
nearest designated tsunami evacuation route identified in the City's
Emergency Operations Plan.
Although temporary lane closures on surrounding streets may be
required during short periods of the Project's construction period in
order to construct the Project and connect the Project to the existing
utility facilities within the existing roadways, the construction of the
Project would not require the complete closure of any public or private
streets or roadways during construction. For all temporary closures,
which may include single lanes and sidewalk segments, the Project
Applicant would be required to obtain a Temporary Street and
Sidewalk Closure Permit from the City of Newport Beach Public
Works Department. Therefore, there is no potential for the Project to
impair implementation of or physically interfere with an adopted
emergency response plan or emergency evacuation plan. No impact
would occur. (DEIR pp. 5-15 to 5-16)
e. Expose People ort Structure to Wildland Fires
Potential Significant Impact: Whether the Project would expose people or structures, either directly or
indirectly, to a significant risk of loss, injury or death involving wildland fires.
(Initial Study Threshold g)
Finding: Impacts related to Hazards and Hazardous Materials Threshold g are discussed in Subsection 5.4.8
of the EIR. Based on the entire record, the City finds that the Project would not expose people or
structures, either directly or indirectly, to a significant risk of loss, injury or death involving
wildland fires and no mitigation is required.
Facts in Support of the Finding: Figure S4, Wildfire Hazards, of the City of Newport Beach General
Plan Safety Element indicates that the Project site and surrounding
areas are considered to have a low or no susceptibility to wildland fire
hazards. The Project site is surrounded by highly urbanized uses and
is not located adjacent to wildland areas. Therefore, the Project's
potential to expose people or structures to a significant risk of loss,
injury, or death involving wildland fires would not occur. No impact
would occur. (DEIR p. 5-17)
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9. Hydrology and Water Quality
a. Water Quality Standards/Waste Discharge Requirements
Potential Significant Impact: Whether the Project would violate any water quality standards or waste
discharge requirements. (Initial Study Threshold a)
Finding: Impacts related to Hydrology and Water Quality Threshold a are discussed in detail in Subsection
5.4.9 of the EIR. Based on the entire record, the City finds that the Project would not cause or
contribute to the violation of any water quality standards or waste discharge requirements, and no
mitigation is required.
Facts in Support of the Finding: Construction of the Project would involve demolition/site preparation,
grading, paving, utility installation, building construction, and landscaping
activities, which have the potential to generate water quality pollutants
such as silt, debris, organic waste, and chemicals (e.g., paints, solvents).
Should these materials come into contact with water that reaches the
groundwater table or flows off site to a public storm drain, the potential
exists for the Project's construction activities to adversely affect water
quality. As such, short-term water quality impacts have the potential to
occur during construction in the absence of any protective or avoidance
measures. However, pursuant to the requirements of the Santa Ana
RWQCB and City of Newport Beach, the Project Applicant would be
required to obtain coverage under the State's General Construction Storm
Water Permit for construction activities (NPDES permit), which would
reduce impacts to less than significant.
Residences at Newport Center
Facts and Findings
An NPDES permit is required for all development projects that include
construction activities, such as clearing, grading, and/or excavation, that
disturb at least one acre of total land area. Mandatory compliance with
regulatory requirements would ensure that the proposed Project does not
violate any water quality standards or waste discharge requirements during
construction activities.
Compliance with required regulations, permits, and a site-specific Water
Quality Management Plan (WQMP) would be required as a condition of
approval for the Project to minimize the release of potential waterborne
pollutants, including pollutants of concern for downstream receiving
waters. Long-term maintenance of on-site water quality features also
would be required as a condition of approval to ensure the long-term
effectiveness of all on-site water quality features.
The Project Applicant or any successor in interest would be required to
prepare a SWPPP for operational activities and implement a long-term
water quality sampling and monitoring program or receive an exemption.
Because the permit is dependent upon a detailed accounting of all
operational activities and procedures, and the SWPPP (or exemption
thereto) would be prepared at the time the Project's building users and
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their operational characteristics are known. However, based on the
performance requirements of the NPDES Industrial General Permit, it is
reasonably assured that mandatory compliance with all applicable water
quality regulations would further reduce potential water quality impacts
during the Project's long-term operation. The Project would not violate
any water quality standards or waste discharge requirements or otherwise
substantially degrade surface or ground water quality during long-term
operation. (DEIR pp. 5-17 and 5-18)
b. Groundwater Supply and Recharge
Potential Significant Impact: Whether the Project would substantially decrease groundwater supplies or
interfere substantially with groundwater recharge such that the project may
impede sustainable groundwater management of the basin. (Initial Study
Threshold b)
Finding: Impacts related to Hydrology and Water Quality Threshold b are discussed in detail in Subsection
5.4.9 of the EIR. Based on the entire record, the City finds that the Project would not substantially
decrease groundwater supplies or interfere substantially with groundwater recharge such that the
project may impede sustainable groundwater management of the basin, and no mitigation is
required.
Facts in Support of the Finding: No groundwater wells are located on the Project site or proposed as part
of the Project. Therefore, implementation of the Project would not deplete
groundwater supplies associated with water well withdrawal. For these
reasons, no impact associated with groundwater supply depletion would
occur.
The Project site is not located within a groundwater recharge basin and
therefore cannot contribute to the recharge of any regional aquifer or local
water table with beneficial potable water uses. Implementation of the
Project would nominally increase the amount of impervious surfaces on-
site from 80% under existing conditions to 85% under proposed
conditions. However, given that the Project site is already developed with
impervious surfaces since 1970, implementation of the Project would not
interfere with groundwater recharge. Moreover, according to the WQMP,
due to the geographical conditions on-site, the excavated depth of the
proposed building, and the anticipated presence of perched groundwater
between the marine terrace deposits and bedrock, infiltration of runoff on-
site is considered infeasible. (DEIR p. 5-18)
c. Alteration of Existing Drainage Patterns
Potential Significant Impact: Whether the Project would substantially alter the existing drainage pattern of
the site or area, including through the alteration of the course of a stream or
river or through the addition of impervious surfaces, in a manner which would
i) result in substantial erosion or siltation on or off site, ii) substantially
increase the rate or amount of surface runoff in a manner which would result
in flooding on or off-site; iii) create or contribute runoff water which would
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exceed the capacity of existing or planned stormwater drainage systems or
provide substantial additional sources of polluted runoff; or iv) impede or
redirect flood flows (Initial Study Threshold c)
Finding: Impacts related to Hydrology and Water Quality Threshold c are discussed in detail in Subsection
5.4.9 of the EIR. Based on the entire record, the City finds that the Project would not substantially
alter the existing drainage pattern of the site or area, including through the alteration of the course
of a stream or river or through the addition of impervious surfaces, in a manner which would i)
result in substantial erosion or siltation on or off site, ii) substantially increase the rate or amount
of surface runoff in a manner which would result in flooding on or off-site; iii) create or contribute
runoff water which would exceed the capacity of existing or planned stormwater drainage systems
or provide substantial additional sources of polluted runoff; or iv) impede or redirect flood flows
and no mitigation is required.
Facts in Support of the Finding: With the implementation of the Project, the site's existing hydrological
characteristics would not be substantially altered; under the proposed
conditions, the runoff would continue to drain towards the southwest
portion of the site and the new on-site storm drain lines would tie into the
existing 10 -inch storm drain and catch basin at the southwest end of the
site. The storm drain system then discharges into the City Municipal
Separate Storm Sewer System (MS4) facility along Civic Center Drive
towards East Coast Highway, where it is conveyed west to the Lower
Newport Bay for discharge as occurs under existing conditions.
Therefore, with the buildout of the Project, there would be no significant
alteration of the site's existing drainage pattern.
Residences at Newport Center
Facts and Findings
As detailed in the Preliminary WQMP prepared for the Project, the number
of impermeable surfaces on-site would increase by about 5%, from
approximately 80% to 85%. Low -flows and first flush runoff would drain
through a proposed biotreatment system to remove water pollutants and
sediment prior to discharge at the southwest end of the site. Because the
Project would not substantially alter the drainage pattern of the subject
property or immediately surrounding area, would install best management
practices (BMPs) including but not limited to a biotreatment system as
part of its required WQMP, and would not substantially increase the rate
or amount of storm water runoff discharged from the site, implementation
of the Project would not result in or increase water pollutant discharges or
flood hazard risks on- or off-site. Because the existing 10 -inch storm drain
has sufficient capacity to convey runoff from the Project site under
existing conditions, and because the rate and volume of runoff would not
substantially increase with the buildout of the Project, the Project also
would not create or contribute runoff which would exceed the capacity of
any existing or planned storm water drainage system. Impacts would be
less than significant.
The subject property is located outside of the 100 -year floodplain and
outside the 500 -year floodplain (greater than 0.2% annual chance of
flooding). Additionally, no portion of the Project site is located within a
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designated 100 -year flood hazard area. Therefore, the Project would have
no potential to impede or redirect flood flows.
The Project would alter existing ground contours of the Project Site and
install impervious surfaces, which would result in changes to the site's
existing, internal drainage patterns. Although the Project would alter the
subject property's internal drainage patterns, such changes would not
result in substantial erosion or siltation on or off site, either during
construction or during long-term operation. (DEIR p. 5-19 and 5-20)
d. Risk Release of Pollutants due to Project Inundation
Potential Significant Impact: Whether the Project in flood hazard, tsunami, or seiche zones, risk release of
pollutants due to project inundation (Initial Study Threshold d).
Finding: Impacts related to Hydrology and Water Quality Threshold a are discussed in detail in Subsection
5.4.9 of the EIR. Based on the entire record, the City finds that the Project would not risk release
of pollutants due to project inundation and no mitigation is required.
Facts in Support of the Finding: The City of Newport Beach provides a tsunami inundation zone map
which indicates that the Project site and surrounding area are not located
within the tsunami advisory evacuation zone. The site is not located
adjacent to a confined body of water; therefore, the potential for the
seismic hazard of a seiche (an oscillation of a body of water in an enclosed
basin) is considered very low to nil. Additionally, the Project site is
located in an area with no reasonable potential of flooding. Based on the
foregoing, the Project would not pose a risk of releasing water pollutants
due to water inundation. (DEIR p. 5-20)
e. Conflicts with Water Quality/Groundwater Management Plans
Potential Significant Impact: Whether the Project would conflict with or obstruct implementation of a
water quality control plan or sustainable groundwater management plan.
(Initial Study Threshold e)
Finding: Impacts related to Hydrology and Water Quality Threshold a are discussed in detail in Subsection
5.4.9 of the EIR. Based on the entire record, the City finds that the Project would not conflict with
or obstruct implementation of a water quality control plan or sustainable groundwater management
plan, and no mitigation is required.
Facts in Support of the Finding: With the implementation of the Project -specific SWPPP and WQMP, the
Project would not result in any conflicts with the Santa Ana River Basin
Plan.
Residences at Newport Center
Facts and Findings
In regards to groundwater management planning, the Project site is within
the Coastal Plain of Orange County Basin (Basin 8-1). The California
Department of Water Resources (DWR), classifies this basin as a medium -
priority basin. According to the Sustainable Groundwater Management
Act (SGMA), signed into law by Governor Jerry Brown on September 16,
2014, local public agencies and Groundwater Sustainability Agencies
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(GSAs) in "high"- and "medium" -priority basins are required to develop
and implement Groundwater Sustainability Plans (GSPs) or Alternatives
to GSPs (DWR, 2020). GSPs are detailed road maps for how groundwater
basins will reach long term sustainability. The GSA for Basin 8-1 is
comprised of the OCWD, City of La Habra, and Irvine Ranch Water
District (IRWD). These agencies collaborated and submitted an
Alternative to a GSP titled Basin 8-1 Alternative on January 1, 2017, to
the DWR. This Alternative documents the basin conditions; basin
management is based on measurable objectives and minimum thresholds
defined to prevent significant and unreasonable impacts on the
sustainability indicators defined in the Alternative. The Project is not a
water -intensive use and the Project site is not located within a groundwater
recharge area. Thus, the Project would have no potential to conflict with
or obstruct implementation of the Basin 8-1 Alternative. No impact would
occur. (DEIR p. 5-20)
10. Land Use and Planning
a. Divide an Established Community
Potential Significant Impact: Whether the Project would physically divide an established community
(Initial Study Threshold a).
Finding: Impacts related to Land Use and Planning Threshold a are discussed in detail in Subsection 5.4.10
of the EIR. Based on the entire record, the City finds that the Project would not physically divide
an established community, and no mitigation is required.
Facts in Support of the Finding: The Project site is bounded on two sides by existing roadways to the north
and to the east (Newport Center Drive and Anacapa Drive), by a parking
lot to the west, and by a complex of low-rise office buildings to the south.
Other land uses within the Project vicinity consist of commercial/office
land uses, with Fashion Island shopping mall located north of the Project
site, and north of Newport Center Drive. No residential uses are located
adjacent to the Project site under existing conditions. The nearest existing
residential land use to the Project site is the Granville Private Residential
Community, which is a gated community located approximately 0.15 -mile
to the west. The Project would establish a new residential building on a
site that is currently used for a car wash and ancillary gas station. As such,
the Project has no potential to physically divide an established community.
(DEIR p. 5-21)
11. Mineral Resources
Potential Significant Impact: Whether the Project would have a substantial adverse effect related to Mineral
Resources. (Initial Study Thresholds a and b)
Finding: Impacts related to Mineral Resources are discussed in Subsection 5.4.1 l of the EIR. Based on the
entire record, the City finds that the Project would not have a substantial adverse effect related to
mineral resources, and no mitigation is required.
Residences at Newport Center
Facts and Findings
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Facts in Support of the Finding: The Project site is fully developed with urban uses. No mines, wells, or
other resource extraction activity occurs on the property or is known to
have ever occurred on the property. According to the City's General Plan
EIR, Figure 4.5-4, Mineral Resource Zones, which relies on mapping
conducted by the California Geological Survey for areas known as Mineral
Resources Zones (MRZs), the Project site is mapped as being on the
boundary between MRZ-I and MRZ-3. Areas mapped MRZ-1 are defined
as "areas where available geologic information indicates that there is little
or no likelihood for the presence of significant mineral resources." Areas
mapped MRZ-3 are defined as "areas containing mineral deposits of
undetermined significance." Accordingly, implementation of the Project
would not result in the loss of availability of a known mineral resource
that would be of value to the region and the residents of the State.
The Project site is not identified as a locally -important mineral resource
recovery site delineated on the City's General Plan, a specific plan, or
other land use plan. Accordingly, no impact would occur. (DEIR p. 5-21)
12. Noise
a. Noise from Private Airstrip
Potential Significant Impact: Whether the Project, located within the vicinity of a private airstrip or an
airport land use plan or, where such a plan has not been adopted, within two
miles of a public airport or public use airport, would expose people residing
or working in the Project area to excessive noise levels. (Initial Study
Threshold c)
Finding: Impacts related to Noise Threshold c are discussed in detail is Subsection 5.4.12 of the EIR. Based
on the entire record, the City finds that the Project would not expose people residing or working in
the Project area to excessive noise levels from a private airstrip, and no mitigation is required.
Facts in Support of the Finding: There are no private airstrips within the vicinity of the Project site. As
shown on Figure N4 of the Newport Beach General Plan, and as similarly
presented on the Airport Impact Zones exhibit of the AELUP, the Project
site is not subject to airport -related noise levels exceeding 60 A -weighted
decibels (dBA) community noise equivalent level (CNEL). Because the
Project would not expose people residing or working in the Project area to
excessive airport -related noise levels, no impact would occur. (DEIR p.
5-22)
13. Population and Housing
Potential Significant Impact: Whether the Project would have a substantial adverse effect related to
Population and Housing. (Initial Study Thresholds a and b)
Finding: Impacts related to Population and Housing are discussed in Subsection 5.4.13 of the EIR. Based
on the entire record, the City finds that the Project would not have a substantial adverse effect
related to Population and Housing, and no mitigation is required.
Residences at Newport Center
Facts and Findings
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Facts in Support of the Finding: According to the State of California Department of Housing, the City of
Newport Beach has an average household size of 2.19 persons per
household. The Project Applicant proposes to redevelop the site with 28
new condominium units, which would result in a population increase of
approximately 62 persons. According to the United States Census Bureau
(USCB), as of July 2019, the City was estimated to have a population of
84,534 people. The Project's proposed 62 -person increase would
represent an approximately 0.07% ([62 people _ 84,534 people] x 100 =
0.07%) increase in the City's population. None of the improvements
proposed as part of the Project would foster an indirect increase in the
City's population because the surrounding area is fully developed and the
Project is connecting to existing infrastructure systems. The vicinity of
the Project site is an urbanized area that already includes a variety of land
uses, including office, retail (Fashion Island), restaurant, entertainment,
and commercial land uses. The approximately 62 -person population that
the Project would accommodate is not substantial and would not adversely
affect the surrounding physical environment. The Project would provide
28 condominium units in Newport Center on a site that was not previously
planned for residential development but there is no reasonable potential
that the Project would induce unplanned population growth on other
properties that would affect the physical environment, as such the
Project's potential to induce substantial unplanned population growth in
an area, either directly or indirectly would be less than significant. Because
there are no residences on the Project site under existing conditions,
implementation of the Project would not displace housing or people and
would not necessitate the construction of replacement housing elsewhere.
No impact would occur. (DEIR p. 5-22 and 5-23)
14. Public Services
Potential Significant Impact: Whether the Project would have a substantial adverse effect to Public
Services. (Initial Study Threshold a (a -d))
Finding: Impacts related to Public Services are discussed in Subsection 5.4.14 of the EIR. Based on the
entire record, the City finds that the Project would not have a substantial adverse effect to Public
Services, and no mitigation is required.
Facts in Support of the Finding: Public Services - Fire Protection: The nearest fire station to the Project site
is NBFD Station No. 3 at 868 Santa Barbara Drive, one roadway mile
northwest. Implementation of the Project could result in an increase in the
site's existing demand for fire protection services (due to medical
emergencies and fire protection needs associated with residential uses).
Due to the limited scale of the Project being 28 condominium units in one
building, the Project is not expected to measurably impact average
response times because, under existing conditions, the Project site's
existing car wash and ancillary uses are already in the NBFD service area
and are adequately served by the existing NBFD service facilities. The
proposed building would be constructed in accordance with current fire
codes and would replace the older on-site building that was constructed in
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Residences at Newport Center
Facts and Findings
1970. Due to the Project's location approximately one mile from NBFD
Station No. 3 in Newport Center, the Project would be adequately served
by existing fire services and no new or expanded facilities are warranted.
The Project would be required to comply with City of Newport Beach Fire
Department Project conditions of approval including the provision of fire
alarm systems, fire sprinklers, emergency power outlets, etc. The
emergency access staging area on Anacapa Drive would be marked for
exclusive use by the Fire Department. Thus, the Project would comply
with all required conditions of approval from the City's Fire Department.
Accordingly, implementation of the Project would be adequately served
by the City's existing fire protection facilities, and the Project would not
result in nor require the expansion or construction of any new fire
protection facilities.
Public Services- Police Protection: Under existing conditions, the Project
site's existing car wash and an ancillary gas station are served by the
Newport Beach Police Department (NBPD) for police protection services.
Due to the limited scale of the Project being 28 condominium units in one
building, the Project is not expected to measurably impact average
response times because, under existing conditions, the Project site's
existing car wash and ancillary uses are already in the NBPD service area
and are adequately served by the existing NBPD service facilities.
Public Services - School Facilities: Under existing conditions, the Project
site is occupied by a car wash and ancillary uses, which does not generate
any demand for school services. The Project would result in the
construction of 28 condominium units anticipated to generate an
approximate 62 -person increase in the City's population. The Project site
is located within the Newport -Mesa Unified School District (NMUSD).
The Project has the potential to generate school -aged children who would
require school services. Based on the student generation rates assumed in
the General Plan EIR, the Project's 28 condominiums would generate
approximately 12 school -aged children consisting of six new elementary
school students, three middle school students, and three high school
students. Based on the school district's school locator application, students
from the Project would attend Corona Del Mar High School and Lincoln
Elementary School. The most recent information from the California
Department of Education (DOE) shows that the most current (2019-2020)
school year enrollment at Corona Dela Mar High School is 2,416 students
and at Lincoln Elementary School is 416 students. The Project's expected
student generation is calculated to increase the student enrollment by
approximately 0.24% at Corona Del Mar High School and by
approximately 1.4% at Lincoln Elementary School. Accordingly, the
Project would result in a nominal increase in student enrollment. The
General Plan EIR notes that policies within the General Plan would assure
the provision of appropriate school facilities as necessary to serve the
City's growing population. The Project Applicant would be required to
pay school fees in accordance with Public Education Code Section
17072.10-18. The provision of school fees would assist the NMUSD in
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meeting the Project's incremental demand for school services. Although
it is possible that the NMUSD may ultimately need to construct new
school facilities in the region to serve the growing population within their
service boundaries, such facility planning is conducted by the NMUSD
and is not the responsibility of the Project. Mandatory payment of school
impact fees would reduce the Project's impacts on school facilities to a
level below significant.
Public Services: - Library Facilities: Under existing conditions, the Project
site's existing car wash and ancillary uses do not generate demand for
library facilities. Upon implementation of the Project, the existing uses
would be demolished and replaced with a 28 -unit condominium building
accommodating approximately 62 persons. As such, the demand for
library services within the City would be incrementally increased because
of the Project's resident population increase. The General Plan Arts and
Cultural Element does not establish any quantitative standards for
determining the amount of physical library space needed to serve the
City's population. Additionally, given changes in technology (i.e., the use
of electronic media in lieu of hard copy media), the demand for physical
library space based on population -based projections is speculative. The
Newport Beach Central Library underwent an approximately 17,000 -
square -foot expansion in 2013 to service the City's population and the
addition of approximately 62 persons to the City's population associated
with the Project has no potential to directly or indirectly create the need to
construct a new future library or physically expand an existing library
facility. According to the City of Newport Beach Municipal Code Section
3.08.020, library services receive funding from property tax. As such, a
portion of the Project's tax assessment would be dedicated to the City's
Library Fund. Impacts would be less than significant. (DEIR pp. 5-23
through 5-25)
15. Recreation
Potential Significant Impact: Whether the Project would have a substantial adverse effect related to
Recreation. (Initial Study Thresholds a and b)
Finding: Impacts related to Recreation are discussed in Subsection 5.4.15 of the EIR. Based on the entire
record, the City finds that the Project would not have a substantial adverse effect related to
Recreation, and no mitigation is required.
Facts in Support of the Finding: As detailed in the City's General Plan EIR, the City of Newport Beach
contains 12 service areas for parkland and the Project site is within Service
Area 9. When the General Plan was last prepared, its Recreation Element
and Figure RI 1 indicated a park surplus within this service area. (of note,
the Civic Center Park was subsequently constructed).
Residences at Newport Center
Facts and Findings
The Project site has been in use as a car wash with ancillary uses since the
1970s and generates little if any demand on park land because it is not a
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residential use. Future residents of the Project site are likely to mostly
utilize the two closest public parks - Civic Center Park and Irvine Terrace
Park. The use of Civic Center Park and/or Irvine Terrace Park by the
Project's estimated 62 residents would not result in substantial
deterioration to these existing facilities due to the small increase in
population associated with the Project. Additionally, the Project includes
common and private open space areas as part of the Project design to help
meet the recreation needs of future residents. As identified on the
Project's Plans, the Project would include approximately 3,600 S.F. of
common open space including a dog run, pool, hot tub, fitness center, and
private open space on residential patios, which would fully help to meet
the leisure and recreational needs of future Project residents. Based on the
City's Parkland Standard of five acres of parkland per 1,000 residents, the
Project's estimated population increase of 62 persons would result in a
demand for approximately 0.31 -acre of parkland. In accordance with
General Plan Recreation Element Policy R 1.1, the Project Applicant
would be required to contribute in -lieu park fees pursuant to the City's
Park Dedication Fee Ordinance and City Resolution No. 2007-30, which
is used in part by the City to develop parks and recreational facilities. The
Project site is located in Service Area 9 which is one of the two service
areas identified within the City as having a park surplus. The surplus,
combined with the fact that the Project will provide on-site private
recreational amenities and contribute in -lieu park fees, demonstrates that
there is no reasonable potential that the Project's projected 62 residents
would increase the use of public recreational facilities such that physical
deterioration of the facilities would occur. There are sufficient existing
park facilities to serve Service Area 9 because there is an excess of
parkland in the Project area. Because the Project would not directly or
indirectly result in the need for new or expanded recreational facilities that
could have an adverse physical effect on the environment, impacts would
be less than significant. Impacts would be less than significant. (DEIR pp.
5-28 and 5-29)
16. Transportation
a. Hazards Due to a Geometric Design Feature or Incompatible Uses
Potential Significant Impact: Whether the Project would substantially increase hazards due to a geometric
design feature (e.g., sharp curves or dangerous intersections) or incompatible
uses (e.g., farm equipment). (Initial Study Threshold C)
Finding: Impacts related to Transportation Threshold c are discussed in detail in Subsection 5.4.16 of the
EIR. Based on the entire record, the City finds that the Project would not result in inadequate
emergency access, and no mitigation is required.
Facts in Support of the Finding: Apart from the potential installation of utility tie -backs along the Project
site's frontage, the Project does not involve any improvements to off-site
public roadways or intersections and complete street closures would not
occur during the Project's construction phase. There may be the need to
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temporarily close a lane in Newport Center Drive and/or Anacapa Drive
during the construction of tie -backs, which would be subject to review by
the Public Works Department. However, due to the temporary nature of
the lane closures, and the required implementation of mandatory traffic
control measures during lane closures, less -than -significant impacts would
occur. Similarly, the location of driveway access points on-site would
comply with City roadway standards and the proposed driveways would
provide for adequate sight distance. The City of Newport Beach's
Transportation Engineer will review the access points regarding adequate
site distance so that the Project would conform to City codes.
Accordingly, the Project would not increase hazards due to a design
feature and impacts would be less than significant. (DEIR pp. 5-27 and
5-28)
b. Inadequate Emergency Access
Potential Significant Impact: Whether the Project would result in inadequate emergency access (Initial
Study Threshold D)
Finding: Impacts related to Transportation Threshold d are discussed in detail in Subsection 5.4.16 of the
EIR. Based on the entire record, the City finds that the Project would not result in inadequate
emergency access, and no mitigation is required.
Facts in Support of the Finding: The Project Applicant proposes adequate emergency access to the site via
compliance with various conditions of approval from the City Fire
Department, including the provision of a marked staging area on Anacapa
Drive for exclusive use by the Fire Department. Additionally, the Project
would not require the complete closure of any public or private streets or
roadways during construction; therefore, any construction within public
roadways would not impede use of roads for emergencies or access for
emergency response vehicles because emergency vehicles would be able
to access the Project site and adjacent properties during construction
should a lane be closed. Therefore, the Project would not result in
inadequate emergency access, and no impact would occur. (DEIR pp. 5-
27)
17. Utilities and Service Systems
a. New or Expanded Utility Facilities
Potential Significant Impact: Whether the Project would require or result in the relocation or construction
of new or expanded water, wastewater treatment or storm water drainage,
electric power, natural gas, or telecommunications facilities, the construction
or relocation of which could cause significant environmental effect (Initial
Study Threshold a)
Residences at Newport Center
Facts and Findings
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Finding: Impacts related to Utilities and Service Systems are discussed in Subsection 5.4.17 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect related to Utilities and Service Systems, and no mitigation is required.
Facts in Support of the Finding: The Project would entail local connections to existing water, wastewater
treatment, storm water drainage, electric power, natural gas, and
telecommunications facilities, as these facilities currently are available
within the immediately surrounding area. Such local connections are
inherent to the Project's construction phase, and impacts associated with
the Project's construction phase were evaluated in the Draft EIR under the
appropriate topical subheadings, as described herein. There are no
components of the Project's proposed utility connections that would result
in significant environmental effects beyond what already is evaluated in
the Draft EIR for the Project's construction phase under associated
environmental topic areas. (DEIR pp. 5-27 and 5-28)
b. Sufficient Water Supplies
Potential Significant Impact: Whether the Project would have sufficient water supplies available to serve
the project and reasonably foreseeable future development during normal, dry
and multiple dry years (Initial Study Threshold b)
Finding: Impacts related to Utilities and Service Systems are discussed in Subsection 5.4.17 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect related to Utilities and Service Systems, and no mitigation is required.
Facts in Support of the Finding: The Project's existing use consumes more domestic water than would the
proposed Project. The site's existing uses are considered in the City's
Urban Water Management Plan (UWMP), which concludes that the City's
existing entitlements have sufficient water supplies to serve its existing
and projected demand. More specifically, according to the City's UWMP,
the City of Newport Beach can meet the water demands of its customers
in normal, single dry, and multiple dry years between 2020 and 2040. As
the Project would result in a reduced water demand compared to the
existing car wash and ancillary uses, the Project would have a less than
significant impact on water supply sufficiency. Impacts would be less than
significant. (DEIR pp. 5-28 and 5-29)
c. Wastewater Treatment Capacity
Potential Significant Impact: Whether the Project would have result in a determination by the wastewater
treatment provider which serves or may serve the project, that it has adequate
capacity to serve the project's projected demand in addition to the provider's
existing commitments (Initial Study Threshold c)
Finding: Impacts related to Utilities and Service Systems are discussed in Subsection 5.4.17 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect related to Utilities and Service Systems, and no mitigation is required.
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Facts in Support of the Finding: Under existing conditions, the Project site is developed with
approximately 2,085 gross S.F. of building area for the existing car wash
with an ancillary gas station, parking lot, landscape, and hardscape areas.
The Project Applicant would demolish the existing structure and
redevelop the site with an approximately 174,614 gross S.F. residential
structure (103,158 gross S.F. of floor area + 71,456 gross S.F. of parking
garage area = 174,614 gross S.F. residential structure). Although the
Project Applicant would redevelop the Project site with a larger building
and use not anticipated for in the City's General Plan and UWMP, the
Project's proposed use would result in a decrease in demand for
wastewater treatment services as compared to existing conditions. As
such, the OCSD's existing wastewater treatment facilities have adequate
capacity to serve the Project's project demand in addition to its existing
commitments. Impacts would be less than significant. (DEIR p. 5-29)
d. Solid Waste Infrastructure Capacit
Potential Significant Impact: Whether the Project would generate solid waste in excess of State or local
standards, or in excess of the capacity of local infrastructure, or otherwise
impair the attainment of solid waste reduction goals (Initial Study Threshold
d)
Finding: Impacts related to Utilities and Service Systems are discussed in Subsection 5.4.17 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect related to Utilities and Service Systems, and no mitigation is required.
Facts in Support of the Finding: Based on the solid waste generation rates presented in General Plan EIR
Table 4.14-14 for multi -family residential uses, the 28 units proposed on
the site would result in the long-term generation of approximately 179.5
pounds per day of solid waste (at a rate of 6.41 pounds per unit per day
[28 units x 6.41 pounds/unit]). The Project's estimated solid waste would
represent approximately 0.005% of the permitted daily tonnage at the
Frank R. Bowerman Sanitary Landfill. This amount of solid waste would
result in a nominal increase in the amount of solid waste conveyed to the
Frank R. Bowerman Sanitary Landfill and that would be met by the
landfill's permitted capacity. Therefore, with the implementation of the
Project, there would be a less -than -significant impact on the landfill's
permitted capacity of 11,500 tons per day. (DEIR p. 5-30)
e. Solid Waste Reduction
Potential Significant Impact: Whether the Project would comply with federal, state, and local management
and reduction statutes and regulations related to solid waste (Initial Study
Threshold e)
Finding: Impacts related to Utilities and Service Systems are discussed in Subsection 5.4.17 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantial adverse
effect related to Utilities and Service Systems, and no mitigation is required.
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Facts in Support of the Finding: The Project would be subject to the City's Recycling Service Fee pursuant
to Municipal Code Chapter 2.30, which is intended to assist the City in
meeting the 50% diversion objective. Commercial waste haulers within
the City are subject to Municipal Code Section 12.63.120 (Recycling
Requirement), which states, "No person providing commercial solid waste
handling services or conducting a solid waste enterprise shall deposit fifty
(50) percent or more of the solid waste collected by the person in the City
at any landfill." Furthermore, the Project would be required to comply
with Municipal Code Section 20.30.120 (Solid Waste and Recyclable
Materials Storage), which mandates that all multi -unit projects with five
or more dwelling units" ... provide enclosed refuse and recyclable material
storage areas with solid roofs." Accordingly, the Project would be fully
compliant with all applicable federal, State, and local statutes and
regulations related to solid waste, resulting in a less -than -significant
impact. (DEIR p. 5-30)
18. Wildfire
Potential Significant Impact: Whether the Project would have a substantial adverse effect related to
Wildfire. (Initial Study Thresholds a, b, c, and d)
Finding: Impacts related to Wildfire are discussed in Subsection 5.4.18 of the EIR. Based on the entire
record, the City finds that the Project would not have a substantial adverse effect related to
Wildfire, and no mitigation is required.
Facts in Support of the Finding: According to the California Department of Forestry and Fire Protection
(CalFire), the Project site and area is within a local responsibility area and
is not within proximity to a very high fire hazard severity zone (CalFire,
2020). Additionally, according to the City's General Plan Figure S4,
Wildfire Hazards, the Project site is within a low/none fire susceptibility
zone. As such, because the Project site is not within an SRA or lands
classified as a very high fire hazard severity zone, the Project would result
in no impacts related to wildfire. (DEIR p. 5-31)
B. Impacts Identified in the EIR as No Impact or Less than Significant Impact - No Mitigation
Required
1. Aesthetics
a. Scenic Vista
Potential Significant Impact: Whether the Project would have a substantial adverse effect on a scenic vista.
(Threshold a)
Finding: Impacts related to Aesthetics Threshold a are discussed in detail in Subsection 4.1 of the EIR.
Based on the entire record, the City finds that the Project would not have a substantive adverse
effect on a scenic vista. No mitigation is required.
Facts in Support of the Finding: The Project site is located in the Newport Center area, from which
views of the Pacific Ocean are available from some locations looking
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west and southwest, and views of distant landforms are available from
some locations looking north, east and northeast. Due to distance and
intervening development, construction of the proposed four-story
building on the approximately 1.26 -acre Project site would not
substantially or adversely affect views to distant landforms from public
viewing areas. This includes, but is not limited to, views to the
northeast (San Joaquin Hills and Santa Ana Mountains) and views to
the northwest (the Palos Verdes Peninsula in Los Angeles County).
The San Joaquin Hills are located approximately five miles from the
Project site and the peak of the Santa Ana Mountains and the Palos
Verdes Peninsula are located more than 20 miles from the Project site,
and the San Gabriel Mountains (visible on clear days from the Newport
Center area) are located approximately 50 miles north of the Project
site. Due to the distance to these features, they are large features part
of the distant horizon view. Looking east toward the hills and
mountains from lower elevations, the Project's building would be
lower in stature than the horizon; hill and mountain views would
remain visible beyond the building. Looking north towards the Palos
Verdes Peninsula from higher elevations; the Project's building on a
1.26 -acre site has no potential to substantially block a wide horizon
view located more than 20 miles in the distance.
The scenic vistas available in the vicinity of the Project site are views
of the Pacific Ocean; as such, if views of the Pacific Ocean would be
blocked, obscured, or substantially and adversely affected as seen from
a coastal view road or a public view point identified on Figure NR3,
Coastal Views, of the City's General Plan, the impact will be regarded
as significant. Effects to scenic vistas from other public locations and
private properties were not considered significant in the Draft EIR
because the City's General Plan expressly calls for the protection of
ocean views from the locations and roadway corridors identified on
General Plan Figure NR3 (refer to General Plan Policies NR 20. 1, NR
20.2, and NR 20.3) and the City does not have any ordinances, plans,
or policies in place that call for the protection of views from other
locations or from privately -owned property.
Figure NR3, Coastal Views, of the City's General Plan Natural
Resources Element, identifies locations in the City where the City has
determined that coastal views should be preserved. Figure NR3 shows
that the closest Coastal View Road to the Project site is the segment of
Newport Center Drive that runs parallel to Anacapa Drive, about 800
feet west of the Project site, from Newport Center Drive E/W to
Farallon Drive/Granville Drive. Figure NR3 also identifies the
segment of MacArthur Boulevard from San Joaquin Hills Road to
Coast Highway (located approximately 0.3 miles east of the Project
site) and Avocado Avenue from San Joaquin Hills Road to Coast
Highway (located approximately 0.2 miles east of the Project site) as
Coastal View Roads. (Newport Beach, 2006a, Figure NR3).
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■ Newport Center Drive: In the viewshed of the Pacific Ocean
as seen from the segment of Newport Center Drive that is
designated a Coastal View Road, the Project site is not visible.
Along this roadway segment, views of the Pacific Ocean are
toward the southwest, whereas views of the Project site are due
west to northwest. Even when looking due west toward the
Project site from the intersection of Newport Center Drive with
Newport Center Drive E/W, the Project site is in the distant
background, not highly visible, and not in the viewshed of the
Pacific Ocean. Implementation of the proposed Project would
have no impact on scenic ocean views as seen from this
segment of Newport Center Drive.
■ Avocado Avenue: In the viewshed of the Pacific Ocean as seen
from the segment of Avocado Avenue that is designated a
Coastal View Road, the Project site is not visible. Along this
roadway segment, views of the Pacific Ocean are seen straight
down Avocado Avenue to the south/southwest, whereas views
of the Project site are due west/northwest. Views toward the
Project site are obscured by buildings and landscaping and the
Project site is not in the viewshed of the Pacific Ocean.
Implementation of the proposed Project would have no impact
on scenic ocean views as seen from this segment of Newport
Center Drive.
■ MacArthur Boulevard: In the viewshed of the Pacific Ocean as
seen from the segment of MacArthur Boulevard that is
designated a Coastal View Road, the Project site is not visible.
Along this roadway segment, views of the Pacific Ocean are
seen straight down MacArthur Boulevard to the
south/southwest, whereas views of the Project site are due
west/northwest. Views toward the Project site are obscured by
landscaping and the Project site is not in the viewshed of the
Pacific Ocean. Implementation of the proposed Project would
have no impact on scenic ocean views as seen from this
segment of MacArthur Boulevard.
As depicted on General Plan Figure NR3, the nearest Public View Point
designated by the General Plan is located at Irvine Terrace Park, south
of the Project site and south of East Coast Highway. Civic Center Park,
located between MacArthur Boulevard and Avocado Avenue,
approximately 0.2 -mile east of the Project site, was constructed after
the General Plan was adopted and affords public views of the Pacific
Ocean, including from an elevated pedestrian viewing platform. As
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such, Civic Center Park is also considered a Public View Point for
purposes of analysis in this EIR.
• Irvine Terrace Park: The viewshed of the Pacific Ocean as seen
from Irvine Terrace Park is due west, looking in the opposite
direction of the Project site. As such, the Project site is not in
the viewshed of the Pacific Ocean as seen from Irvine Terrace
Park. Implementation of the proposed Project would have no
impact on scenic ocean views as seen from this park.
■ Civic Center Park: In the viewshed of the Pacific Ocean as seen
from Civic Center Park, the Project site is partially visible
although is mostly blocked from view by intervening structures
and landscaping. Implementation of the proposed Project
would have a less -than -significant impact on scenic ocean
views as seen from this park because due to the descending
ground elevation between Civic Center Park and the Project
site and the proposed height of the building, the proposed
building would appear lower in profile than the horizon ocean
view.
During construction activities, construction equipment, including
cranes, would be used that may temporarily be visible on the skyline
when looking across the Project site from any direction. However, the
use of such construction equipment would be temporary in duration and
the equipment would be removed at the end of the construction period.
Equipment such as cranes would not be of any substantive mass to
block or substantially obscure a scenic ocean view. Accordingly, there
would be no substantial change to public views from Coastal View
Roads or Public View Points during the Project's short-term temporary
construction activities.
Based on the foregoing analysis, the proposed Project would have a
less than significant impact on scenic vistas. (DEIR pp. 4.1-13
through 4.1-16)
b. Scenic Quality
Potential Significant Impact: Whether the Project in an urbanized area, would conflict with applicable
zoning and other regulations governing scenic quality. (Threshold c)
Finding: Impacts related to Aesthetics Threshold c are discussed in detail in Subsection 4.1 of the EIR.
Based on the entire record, the City finds that the Project would not conflict with applicable zoning
and other regulations governing scenic quality. No mitigation is required.
Facts in Support of the Finding: The Project would not conflict with any City General Plan Policy
pertaining to scenic quality. The Project is required to be designed in
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compliance with applicable provisions of the City of Newport Beach
Municipal Code, as well as the Project's proposed Planned Community
Development Plan (PCDP), and would therefore not conflict with
applicable zoning and other regulations governing scenic quality. (DEIR
pp. 4.1-17 through 4.1-24 and p. 4.1-24)
c. Substantial Light or Glare
Potential Significant Impact: Whether the Project would create a new source of substantial light or glare
which would adversely affect day or nighttime views. (Threshold d)
Finding: Impacts related to Aesthetics Threshold d are discussed in detail in Subsection 4.1 of the EIR.
Based on the entire record, the City finds that the Project would not conflict with applicable zoning
and other regulations governing scenic quality. No mitigation is required.
Facts in Support of the Finding: The Project is required to be in compliance with light restriction provisions
contained in the City of Newport Beach Municipal Code, as well as the
Project's proposed Planned Community Development Plan (PCDP), and
would therefore not create a new source of substantial light or glare which
would adversely affect day or nighttime views. No mitigation is required.
(DEIR p. 4.1-24)
2. Air Quality
a. Air Ouality Plan
Potential Significant Impact: Whether the Project would conflict with or obstruct implementation of the
applicable air quality plan. (Threshold a)
Finding: Impacts related to Air Quality Threshold a are discussed in detail in Subsection 4.2 of the EIR.
Based on the entire record, the City finds that the Project would not conflict with or obstruct
implementation of the applicable air quality plan. No mitigation is required.
Facts in Support of the Finding: Project -related activities would not exceed SCAQMD regional or localized
emissions thresholds during construction or long-term operation. Although
the Project, which proposes the development of 28 condominium units
would change the land use, the Project would generate less vehicular traffic
and consequently fewer emissions than if the Project site were developed
consistent with its CO -R designation. Stated another way, although the
Project entails changing the site's land use, development of the proposed
Project would result in a decrease in development intensity and subsequent
air emissions that would result from the Project. Thus, the Project would not
exceed the assumptions of the AQMP. Because the Project would not result
in an increase in the frequency or severity of existing air quality violations
or cause or contribute to new violations, delay the timely attainment of air
quality standards or the interim emissions reductions specified in the AQMP
and would not exceed the growth assumptions in the AQMP, the Project
would be consistent with the AQMP and impacts would be less -than -
significant. No mitigation is required. (DEIR pp. 4.2-16 and 4.2-17)
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b. Criteria Pollutants
Potential Significant Impact: Whether the Project would result in a cumulatively considerable net increase
of any criteria pollutant for which the Project region is non -attainment under
an applicable federal or state ambient air quality standard. (Threshold b)
Finding: Impacts related to Air Quality Threshold b are discussed in detail in Subsection 4.2 of the EIR.
Based on the entire record, the City finds that the Project would not result in a cumulatively
considerable net increase of any criteria pollutant for which the Project region is non -attainment
under an applicable federal or state ambient air quality standard. No mitigation is required.
Facts in Support of the Finding: The SCAB has a "non -attainment" designation for ozone (1- and 8 -hour)
and particulate matter (PM2.5 and PMio) under existing conditions. Because
the Project's construction activities would not emit substantial
concentrations of VOCs, NOx, CO, SOx, PMio and PM2.5 and would not
contribute to an existing or projected air quality violation on a direct or
cumulatively -considerable basis, Project construction impacts related to
these emissions would be less than significant and no mitigation is
required. Although no mitigation is required, construction contractors
would still be obligated to comply with applicable SCAQMD Rules,
including but not limited to, Rule 401 (Visible Emissions); Rule 402
(Nuisance Odors), Rule 403 (Fugitive Dust), Rule 1113 (Architectural
Coatings), and Rule 1403 (Asbestos Emissions from
Demo I ition/Renovation Activities). The Project's operation would result
in peak daily emissions of VOCs, NOx, CO, SOx, and particulate matter
(PMio and PM2.5) that would fall far below the applicable SCAQMD
regional thresholds. Therefore, the Project would not emit substantial
concentrations of these pollutants and would not contribute to an existing
or projected air quality violation on a direct or cumulatively -considerable
basis. Because the Project would not emit substantial concentrations of
VOCs, NOx, CO, SOx, PMio and PM2.5 and would not contribute to an
existing or projected air quality violation on a direct or cumulatively -
considerable basis, impacts associated with these operational emissions
would be less than significant and no mitigation is required. (DEIR pp.
4.2-17 through 4.2-19)
c. Substantial Pollutant Concentrations
Potential Significant Impact: Whether the Project would expose sensitive receptors to substantial pollutant
concentrations. (Threshold c)
Finding: Impacts related to Air Quality Threshold c are discussed in detail in Subsection 4.2 of the EIR.
Based on the entire record, the City finds that the Project would not conflict expose sensitive
receptors to substantial pollutant concentrations. No mitigation is required.
Facts in Support of the Finding: Because the Project's localized NOx, CO, and particulate matter (PMio and
PM2.5) emissions would not exceed applicable SCAQMD thresholds during
Project construction, Project construction would not expose any sensitive
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receptors in the vicinity of the Project site to substantial criteria pollutant
concentrations. Therefore, impacts would be less than significant and no
mitigation is required. (DEIR pp. 4.2-19 through 4.2-21)
3. Cultural Resources
a. Historic Resources
Potential Significant Impact: Whether the Project would cause a substantial adverse change in the
significance of an historic resource pursuant to Section 15064.5. (DEIR
Threshold a)
Finding: Impacts related to Cultural Resources Threshold a are discussed in detail in Subsection 4.4 of the
EIR. Based on the entire record, the City finds that the Project would not cause a substantial adverse
change in the significance of an historic resource pursuant to Section 15064.5, No impact would
occur and no mitigation is required.
Facts in Support of the Finding: Because no historic resources, as defined by CEQA Guidelines Section
15064.5, exist on the Project site, there is no potential for the proposed
Project to cause a substantial adverse change in the significance of a
historical resource pursuant to Section 15064.5. (DEIR pp. 4.4-8 and 4.4-
9)
4. Greenhouse Gas Emissions
a. Significant Greenhouse Gas Emissions
Potential Significant Impact: Whether the Project would conflict with an applicable plan, policy, or
regulation adopted for the purpose of reducing the emissions of greenhouse
gases. (Threshold a)
Finding: Impacts related to Greenhouse Gas Emissions Threshold a are discussed in detail in Subsection 4.6
of the EIR. Based on the entire record, the City finds that the Project would not generate greenhouse
gas emissions, either directly or indirectly, that may have a significant impact on the environment,
and no mitigation is required.
Facts in Support of the Finding: The City of Newport Beach utilizes a screening threshold of 3,000 metric
tons of carbon monoxide equivalent of MTCO2e per year to determine if
additional analysis is required. This approach is a widely accepted
screening threshold used by the City of Newport Beach and numerous
agencies in the SCAB. The Project would result in approximately 357.28
MTCO2e per year; thus, the proposed Project would not exceed the City's
screening threshold of 3,000 MTCO2e per year and impacts would be less
than significant. (DEIR pp. 4.6-16 and 4.6-18)
b. Conflict with an Applicable Plan, Policy, or Regulation
Potential Significant Impact: Whether the Project would conflict with an applicable plan, policy, or
regulation adopted for the purpose of reducing the emissions of greenhouse
gases. (Threshold b)
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Finding: Impacts related to Greenhouse Gas Emissions Threshold b are discussed in detail in Subsection 4.6
of the EIR. Based on the entire record, the City finds that the Project would not conflict with an
applicable plan, policy, or regulation adopted for the purpose of reducing the emissions of
greenhouse gases, and no mitigation is required.
Facts in Support of the Finding: The Project would be consistent with or otherwise would not conflict with
the CARB 2017 Scoping Plan, which is the applicable plan adopted for
the purpose of reducing the emissions of greenhouse gases. The 2017
Scoping Plan Update reflects the 2030 target of a 40% reduction below
1990 levels, set by Executive Order B-30-15 and codified by SB 32. The
City's Energy Action Plan (EAP) is not directly applicable to the proposed
Project because the goals and policies in the Plan are focused on energy
efficiency and sustainability of City facilities. However, because the
Project is required to comply with CALGreen and Title 24 standards, the
Project would not conflict with the community -wide energy use goals of
the EAP. Therefore, the Project would be consistent with or otherwise
would not conflict with, applicable regulations, policies, plans, and policy
goals that would further reduce GHG emissions, and impacts would be
less than significant. (DEIR p. 4.6-17 and 4.6-18)
5. Hazards and Hazardous Materials
a. Routine Transport, Use, or Disposal of Hazardous Materials
Potential Significant Impact: Whether the Project would create a significant hazard to the public or the
environment through the routine transport, use, or disposal of hazardous
materials. (Threshold a)
Finding: Impacts related to Hazards and Hazardous Materials Threshold a are discussed in detail in
Subsection 4.7 of the EIR. Based on the entire record, the City finds that the Project would not
create a significant hazard to the public or the environment through the routine transport, use, or
disposal of hazardous materials, and no mitigation is required.
Facts in Support of the Finding: The existing USTs, dispensers, and piping that are present onsite that are
associated with the site's current use as a car wash would be required to
be removed, handled, and disposed of in accordance with all applicable
local and State regulations. Because existing USTs, dispensers, and piping
would be required to be removed, handled, and disposed of in accordance
with all applicable local and State regulations, implementation of the
Project would not expose the public or the environment to significant
hazards associated with the removal and disposal of the on-site USTs,
dispensers, and piping from the Project site. Because the Project site
contains structures known to be constructed before 1978, there is the
potential that asbestos -containing materials (ACMs) and/or lead-based
paint is present on the Project site. Improper use, storage, or transportation
of hazardous materials can result in accidental releases or spills,
potentially posing health risks to workers, the public, and the environment.
This is a standard risk on all construction sites, and there would be no
greater risk for improper handling, transportation, or spills associated with
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the Project than would occur on any other similar construction site.
Construction contractors would be required to comply with all applicable
federal, State, and local laws and regulations regarding the transport, use,
and storage of hazardous construction -related materials, including but not
limited requirements imposed by the EPA, DTSC, and the Santa Ana
RWQCB. With mandatory compliance with applicable hazardous
materials regulations, the Project would not create significant hazard to
the public or the environment through routine transport, use, or disposal
of hazardous materials during the construction phase. Pursuant to State
law and local regulations, residents of the Project's proposed
condominium building would be required to dispose of household
hazardous waste (e.g., batteries, used oil, paint, etc.) at a permitted
household hazardous waste collection facility. During Project construction
and operation, mandatory compliance to federal, State, and local
regulations would ensure that the proposed Project would not create a
significant hazard to the environment due to routine transport, use,
disposal, or upset of hazardous materials. Impacts would be less than
significant and no mitigation is required. (DEIR pp. 4.7-10 through 4.7-
14)
b. Release of Hazardous Materials
Potential Significant Impact: Whether the Project would create a significant hazard to the public or the
environment through reasonably foreseeable upset and accident conditions
involving the release of hazardous materials into the environment. (Threshold
b)
Finding: Impacts related to Hazards and Hazardous Materials Threshold b are
discussed in detail in Subsection 4.7 of the EIR. Based on the entire record,
the City finds that the Project would not create a significant hazard to the
public or the environment through reasonably foreseeable upset and accident
conditions involving the release of hazardous materials into the environment.
Facts in Support of the Finding: The existing USTs, dispensers, and piping that are present onsite that are
associated with the site's current use as a car wash would be required to
be removed, handled, and disposed of in accordance with all applicable
local and State regulations. Because existing USTs, dispensers, and piping
would be required to be removed, handled, and disposed of in accordance
with all applicable local and State regulations, implementation of the
Project would not expose the public or the environment to significant
hazards associated with the removal and disposal of the on-site USTs,
dispensers, and piping from the Project site. Because the Project site
contains structures known to be constructed before 1978, there is the
potential that asbestos -containing materials (ACMs) and/or lead-based
paint is present on the Project site. Improper use, storage, or transportation
of hazardous materials can result in accidental releases or spills,
potentially posing health risks to workers, the public, and the environment.
This is a standard risk on all construction sites, and there would be no
greater risk for improper handling, transportation, or spills associated with
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the Project than would occur on any other similar construction site.
Construction contractors would be required to comply with all applicable
federal, State, and local laws and regulations regarding the transport, use,
and storage of hazardous construction -related materials, including but not
limited requirements imposed by the EPA, DTSC, and the Santa Ana
RWQCB. With mandatory compliance with applicable hazardous
materials regulations, the Project would not create significant hazard to
the public or the environment during the construction phase. Pursuant to
State law and local regulations, residents of the Project's proposed
condominium building would be required to dispose of household
hazardous waste (e.g., batteries, used oil, paint, etc.) at a permitted
household hazardous waste collection facility. During Project construction
and operation, mandatory compliance to federal, State, and local
regulations would ensure that the proposed Project would not create a
significant hazard to the environment due to routine transport, use,
disposal, or upset of hazardous materials. Impacts would be less than
significant and no mitigation is required. (DEIR pp. 4.7-10 through 4.7-
14)
6. Land Use and Planning
a. Conflicts with Plans
Potential Significant Impact: Whether the Project would cause a significant environmental impact due to a
conflict with any land use plan, policy, or regulation adopted for the purpose
of avoiding or mitigating an environmental effect. (Threshold b)
Finding: Impacts related to Land Use and Planning Threshold a are discussed in detail in Subsection 4.8 of
the EIR. Based on the entire record, the City finds that the Project would not result in significant
land use and planning conflicts in the context of compliance with applicable environmental plans,
policies, and regulations beyond those identified in other Subsections of the EIR. Impacts would
be less than significant and no mitigation is required.
Facts in Support of the Finding: The Project's proposed General Plan Amendment and Zoning Map
Amendment would eliminate inconsistencies between the proposed on-
site land use and the site's existing zoning classifications and land use
designations. The Project would not result in significant land use and
planning conflicts in the context of compliance with applicable
environmental plans, policies, and regulations beyond those identified in
other Subsections of the Draft EIR. (DEIR pp. 4.8-8 through 4.8-30)
7. Noise
a. Noise Standards
Potential Significant Impact: Whether the Project would result in generation of a substantial temporary or
permanent increase in ambient noise levels in the vicinity of the project in
excess of standards established in the local general plan or noise ordinance,
or applicable standards of other agencies. (Threshold a)
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Finding: Impacts related to Noise Threshold a are discussed in detail in Subsection 4.9 of the EIR. Based
on the entire record, the City finds that the Project would not result in generation of a substantial
temporary or permanent increase in ambient noise levels in the vicinity of the project in excess of
standards established in the local general plan or noise ordinance, or applicable standards of other
agencies. Impacts would be less than significant and no mitigation is required.
Facts in Support of the Finding: The Project would generate short-term construction and long-term
operational noise but would not generate noise levels during construction
and/or operation that exceed the standards established by the City of
Newport Beach General Plan or Municipal Code. (DEIR pp. 4.9-17
through 4.9-24 and 4.9-26)
b. Groundborne Vibration or Noise
Potential Significant Impact: Whether the Project would result in the generation of excessive groundbome
vibration or groundborne noise levels. (Threshold b)
Finding: Impacts related to Noise Threshold b are discussed in detail in Subsection 4.9 of the EIR. Based
on the entire record, the City finds that Project construction -related activities and operation would
not generate excessive groundborne vibration or groundborne noise levels and impacts would be
less than significant. No mitigation is required.
Facts in Support of the Finding: At distances ranging from 99 feet (at location R4) to 1,002 feet (at location
R3) from the Project site boundary, the highest construction vibration
levels are estimated to range from 38.9 to 69.1 VdB and would remain
below the FTA Transit Noise and Vibration Impact Assessment Manual
maximum acceptable vibration criteria of 78 VdB for daytime residential
uses at all receiver locations. Furthermore, vibration levels at the site of
the closest sensitive receiver would not be sustained during the entire
construction period but would occur rather, only during the times that
heavy construction equipment is operating. Because the Project's highest
construction vibration levels would not exceed FTA's threshold of 78 VdB
for daytime residential uses, the Project -related vibration impacts during
construction -related activities would be less than significant and no
mitigation is required. (DEIR pp. 4.9-24 through 4.9-26)
8. Transportation
a. Conflict with Applicable Program, Plan, Ordinance or Policy
Potential Significant Impact: Whether the Project would conflict with an applicable program, plan,
ordinance, or policy addressing the circulation system, including transit,
roadway, bicycle, and pedestrian facilities. (Threshold a)
Finding: Impacts related to Transportation Threshold a are discussed in detail in Subsection 4.10 of the EIR.
Based on the entire record, the City finds that the Project would not conflict with a program, plan,
ordinance, or policy addressing the circulation system; therefore, impacts would be less than
significant and no mitigation is required.
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Facts in Support of the Finding: The Project would be consistent with the goals and policies of SCAG's
regional planning program and any applicable General Plan policies
addressing the circulation system. Because the Project would be fully
consistent with all applicable programs, plans, ordinances, or policies
addressing the City's circulation system, including transit, roadway,
bicycle, and pedestrian facilities, Project impacts due to a conflict with
applicable programs, plans, ordinances, and policies would be less than
significant and no mitigation is required. (DEIR pp. 4.10-7 through 4.10-
11)
b. Circulation Network
Potential Significant Impact: Whether the Project would conflict or be inconsistent with CEQA Guidelines
section 15064.3, subdivision (b). (Threshold b)
Finding: Impacts related to Transportation Threshold bare discussed in detail in Subsection 4.10 of the EIR.
Based on the entire record, the City finds that the Project would not conflict or be inconsistent with
CEQA Guidelines section 15064.3, subdivision (b). Impacts would be less than significant and no
mitigation is required.
Facts in Support of the Finding: Because the Project is calculated to generate 667 fewer daily traffic trips
than the Project site's existing use as a car wash, the Project would be
consistent with City Council Policy K-3 and generate a less -than -
significant environmental impact related to VMT. Therefore,
implementation of the Project would not generate excessive VMT, which
is defined in CEQA Guidelines section 15064.3(b) as the metric used to
evaluate project -related transportation impacts. In addition, the Project site
is close, (less than 0.50) mile from the transit hub. Because the Project's
152 trips are less than the 300 trips criteria in the City's TPO guidelines,
the Project would be exempt from provisions in the City's TPO and would
not result in substantial adverse effects on the circulation network. In
addition, the Project would generate 667 fewer daily trips than the site's
existing use, which results in the Project being screened out from
additional VMT analysis. Therefore, the Project would not generate
substantial VMT and impacts would be less than significant. (DEIR pp.
4.10-10 through 4.10-12)
C. Impacts Identified in the EIR as Less than Significant with Mitigation Incorporated
1. Biological Resources
a. Habitat Modification
Potential Significant Impact: Whether the Project would have a substantial adverse effect, either directly
or through habitat modifications, on any species identified as a candidate,
sensitive, or special status species in local or regional plans, policies, or
regulations, or by the California Department of Fish and Wildlife or U.S. Fish
and Wildlife Service. (Threshold a)
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Finding: Impacts related to Biological Resources Threshold are discussed in Subsection 4.3 of the DEIR.
Based on the entire record, the City finds that the Project has the potential to result in impacts to
nesting birds if habitat is removed during the nesting season. Mitigation is required, and would
reduce impacts to less -than -significant levels.
Facts in Support of the Finding: The Project would not result in impacts to sensitive natural plant
communities, special -status plants, or special -status animals. However,
the Project has the potential to impact nesting birds if habitat is
removed during the nesting season (February 1 through August 31)
which is considered a significant impact. With the Project's mandatory
compliance with the MBTA, a less than significant impact would occur
associated with the Project's impacts on migratory birds. Although
migratory birds are protected under the federal MBTA, the City of
Newport Beach applies Mitigation Measure MM 4.3-1 as a condition
of approval for development projects in the City to ensure compliance
with the MBTA. Implementation of Mitigation Measure MM 4.3-1
would eliminate the Project's potential to result in an adverse effect to
nesting birds by requiring that habitat removal activities either occur
outside of the nesting bird season (generally identified as between
February 1 and August 31) or that a qualified biologist ensure that no
active nests are present. If nesting migratory birds are present, the
mitigation requires avoidance of active bird nests in conformance with
accepted protocols and regulatory requirements. With implementation
of the required mitigation, impacts to nesting migratory birds protected
by the federal MBTA and/or California Fish and Game Code would be
reduced to below a level of significance. (DEIR pp. 4.3-6 and 4.3-7)
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Facts and Findings
MM 4.3-1: As a condition of demolition permits, tree removal permits,
clearing permits, and any other permits that would authorize the
disturbance to and removal of potential bird nesting habitat shall be
prohibited during the migratory bird nesting season (February 1
through August 31) unless a migratory bird nesting survey is
completed. If demolition and/or vegetation removal is planned to occur
during the migratory bird nesting season (February 1 — August 31),
then a migratory bird nesting survey shall be completed in accordance
with the following requirements:
a) Within three (3) days prior to initiating demolition, tree
removals and/or vegetation clearing a nesting bird survey
shall be conducted by a qualified biologist within the suitable
habitat to be removed and within a 250 foot radius.
b) If the survey reveals no active nesting, the proposed action may
proceed.
c) If the survey identifies the presence of active sensitive bird
nests, then the nests shall not be disturbed unless the qualified
biologist verfes through non-invasive methods that either (i)
the adult birds have not begun egg -laying and incubation; or
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(ii) the juveniles from the occupied nests are capable of
independent survival.
d) If the biologist is not able to verb any of the conditions from
sub -item "b, " above, then no disturbance shall occur within a
buffer zone specified by the qualified biologist for each nest or
nesting site. The buffer zone shall be species -appropriate (no
less than 100 foot radius around the nest for non -raptors and
no more than a 500 foot radius around the nest for raptors, or
as otherwise determined by the qualified biologist) and shall
be sufficient to protect the nest from direct and indirect impacts
from construction activities. The nests and buffer zones shall
be field checked approximately weekly by a qualified biological
monitor. The approved buffer zone shall be marked in the field
with construction fencing, within which no vegetation clearing
or ground disturbance shall commence until the qualified
biologist with City concurrence verify that the nests are no
longer occupied and/or juvenile birds can survive
independently from the nests. (DEIR p. 4.3-7)
2. Cultural Resources
a. Archaeological Resources
Potential Significant Impact: Whether the Project would cause a substantial adverse change in the
significance of an archaeological resource pursuant to Section 15064.5.
(Threshold b)
Finding: Impacts related to Cultural Resources Threshold b are discussed in detail in Subsection 4.4 of the
EIR. Based on the entire record, the City finds that mitigation measures are required to address the
remote potential that unknown and undiscovered archaeological resources may be impacted by
development should be they be discovered and not properly identified and treated. With
implementation of required mitigation, potential impacts would be reduced to below a level of
significance.
Facts in Support of the Finding: Under existing conditions, the Project site is fully disturbed to a depth of
9 to 14 feet and developed on the surface with a car wash, ancillary gas
station and convenience market, and a parking lot and associated features.
Due to the depth of the excavation required for the proposed subterranean
parking structure, there is a potential that previously buried archeological
resources may be encountered where excavation depths exceed the depth
of disturbance associated with previous construction activities not
associated with the proposed Project. If archaeological resources are
unearthed during the Project's excavation activities that meet the CEQA
Guidelines § 15064.5 definition of significant resources, and they are not
properly identified and treated, a potentially significant impact could
occur. Mitigation Measures MM 4.4-1 through MM 4.4-5 would require
the implementation of an archaeological monitoring and treatment
program during the Project's construction activities, should unique
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archaeological resources be found. Treatment of significant resources in
compliance with Public Resources Code § 21083.2 would reduce the
Project's potentially significant impact to less than significant. Therefore,
with compliance with MM 4.4-1 through MM 4.4-5, the Project's potential
to cause a substantial adverse change in the significance of an
archaeological resource pursuant to CEQA Guidelines Section 15064.5
would be reduced to less than significant. (DEIR pp. 4.4-8, 4.4-9, and
4.4-12)
MM 4.4-1: Prior to the issuance of a grading permit or any other permit
that authorizes disturbance of native soil, the Developer/Applicant shall a
retain a professional archaeologist who meets the U.S. Secretary of the
Interior Standards (SDI), to conduct monitoring. The Project
Archaeologist shall have the authority to temporarily redirect
earthmoving activities in the event that suspected archaeological or tribal
cultural resources are unearthed during Project construction. The Project
Archaeologist, with participation from Consulting Native American
Tribe(s) including the Gabrieleno Band of Mission Indians — Kizh Nation,
and the Juaneno Band of Mission Indians—Acjachemen Nation -Belardes,
the contractor, and the City of Newport Beach, shall develop an
Archeological Monitoring Plan to address the details, timing and
responsibility of all archaeological and tribal cultural monitoring and
mitigation activities that will occur on the Project site. A consulting tribe
is defined as a tribe that initiated the AB52 tribal consultation process for
the Project, has not opted out of the AB52 consultation process, and has
completed AB52 consultation with the City as provided for in Cal Pub Res
Code Section 21080.3.2(b)(1) of AB52. The Developer/Applicant is
responsible for securing any required monitoring agreements with the
Tribes. Details in the Plan shall include:
a) Project grading and development scheduling:
b) The development of a rotating schedule in coordination with the
Developer and the Project Archeologist for designated Native
American Tribal Monitors from the consulting tribes during
grading, excavation and ground disturbing activities on the site:
including the scheduling, safety requirements, duties, scope of
work;
c) The Project archaeologist and the Consulting Tribes(s) that
choose to participate shall attend a pre -grading meeting with the
City, the construction manager and any subcontractors and will
conduct a mandatory Cultural Resources Worker Sensitivity
Training to those in attendance. The Training will include a brief
review of the cultural sensitivity of the Project site and the
surrounding area; what resources could potentially be identified
during earthmoving activities; the requirements of the monitoring
program; the protocols that apply in the event inadvertent
discoveries of cultural resources are identified, including who to
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Facts and Findings
contact and appropriate avoidance measures until the find(s) can
be properly evaluated, and any other appropriate protocols. All
new construction personnel that will conduct disturbance
activities in native soil and that begin work on the Project
.following the initial Training must take the Cultural Sensitivity
Training prior to beginning work and the Project archaeologist
and Consulting Tribe(s) that choose to participate shall make
themselves available to provide the training on an as -needed
basis;
d) If the Project Archaeologist or the Tribal Monitor suspect a
resource has been discovered, they shall immediately cause soil
disturbing operations to stop in a 50 foot radius around the find
to allow identification and evaluation of the suspected resource.
In consultation with the Native American Monitor, the Project
Archaeologist shall evaluate the suspected resource and make a
determination of significance pursuant to California Public
Resources Code Section 21083.2. If a significant resource is
discovered, a qualified person meeting the Secretary of the
Interior's standards (36 CFR 61), Tribal Representatives and
Monitors and the City of Newport Beach shall be consulted to
determine appropriate measures to avoid or mitigate negative
effects on the resource. Measures need to be tailored to the
resource and circumstances of the find, so cannot be determined
in advance. Determinations and recommendations by the
qualified person meeting the Secretary of the Interior's standards
(36 CFR 61) shall be submitted to the City for consideration, and
implemented as deemed appropriate by the City in consultation
with the State Historic Preservation Officer (SHPO) and any and
all Consulting Native American Tribes as defined in MM 4.4-1
before any further work commences in the affected area. (DEIR
pp. 4.4-9 through 4.4-11)
MM 4.4-2: In the event that significant Native American cultural
resources are discovered, the following procedures shall be carried out
for final disposition of the discoveries:
a) One or more of the following treatment methods shall occur.
Evidence of such shall be provided to the City of Newport Beach.
Preservation -In -Place of the cultural resources, if
feasible. Preservation in place means avoiding the
resources, leaving them in the place they were found with
no development affecting the integrity of the resources.
ii. Onsite reburial of the discovered items as detailed in the
treatment plan. This shall include measures and
provisions to protect the future reburial area from any
future impacts in perpetuity. Reburial shall not occur until
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all legally required cataloging and basic recordation have
been completed. No recordation of sacred items is
permitted without the written consent of all Consulting
Native American Tribal Governments as defined in MM
4.4-1. The location for the future reburial area shall be
identified on a confidential exhibit on file with the City,
and concurred to by the Consulting Native American
Tribal Governments prior to the issuance of a grading
permit. (DEIR p. 4.4-11)
MM 4.3-3: The Developer or contractor shall provide a minimum of 30
days advance notice to the City and Consulting Tribes of all earthwork
activities in native soil. (DEIR p. 4.4-12)
MM 4.3-4: The City shall verify that the following note is included on the
Grading Plan:
"If any suspected archaeological or tribal cultural resources are
discovered during ground -disturbing activities and the Project
Archaeologist or Native American Tribal Representatives are not
present, the construction supervisor is obligated to halt work in a 50 -
foot radius around the find and call the Project Archaeologist and the
Tribal Representatives to the site to assess the significance of the find.
(DEIR p. 4.4-12)
MM 4.4-5: If Native American human remains and/or grave goods are
discovered during Project construction, then all construction activities
shall immediately cease. Native American "human remains" are defined
to include "an inhumation or cremation, and in any state of decomposition
or skeletal completeness. " (Pub. Res. Code § 5097.98 (d)(1)) Funerary
objects, referred to as "associated grave goods, " shall be treated in the
same manner and with the same dignity and respect as human remains.
(Pub. Res. Code § 5097.98 (a), d)(1) and (2). Any discoveries of human
skeletal material or human remains shall be immediately reported to the
County Coroner (Health & Safety Code § 7050.5(c); 14 Cal. Code Regs.
§ 15064.5(e)(1)(B)), and all ground -disturbing project ground -disturbing
activities on site and in any other area where the presence of human
remains and/or grave goods are suspected to be present, shall immediately
halt and remain halted until the coroner has determined the nature of the
remains. (14 Cal. Code Regs. § 15064.5(e)) If the coroner recognizes the
human remains to be those of a Native American or has reason to believe
they are Native American, he or she shall contact, within 24 hours, the
Native American Heritage Commission, and Public Resources Code
Section 5097.98 shall be followed. (DEIR p. 4.4-12)
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3. Geology and Soils
a. Unstable Geologic Unit or Soil
Potential Significant Impact: Whether the Project would be located on a geologic unit or soil that is
unstable, or that would become unstable as a result of the project and
potentially result in on- or off-site landslide, lateral spreading, subsidence,
liquefaction or collapse. (Threshold c)
Finding: Impacts related to Geology and Soils Threshold c are discussed in detail in Subsection 4.5 of the
EIR. Based on the entire record, the City finds that mitigation measures are required to address the
remote potential that unknown and undiscovered archaeological resources may be impacted by
development should be they be discovered and not properly identified and treated. With
compliance with MM 4.5-1 and MM 4.5-2, the Project's potential for impacts associated with
unstable soils would be reduced to less than significant.
Facts in Support of the Finding: The execution of construction activities in unstable soil conditions could
lead to environmental effects associated with lengthening the construction
process (temporary air emission and construction -related noise, for
example). Therefore, a potentially significant construction -related impact
associated with unstable soils would occur during Project construction.
During excavation and construction of the proposed Project's
subterranean parking structure, there is a potential for impacts associated
with soils that may unstable, or that would become unstable as a result of
the construction of the proposed Project, if water seepage occurs that may
result in sloughing, slumping or other instability of vertical excavations.
Based on NMG's review of the site, past geotechnical investigations for
the site and for the surrounding area, NMG determined that the Project
site is suitable for the development of the proposed Project from a
geotechnical standpoint, provided the Project is designed and constructed
in accordance with the geotechnical considerations and recommendations.
In addition, as with every development project, mandatory adherence to
the California Building Standards Code (CBSC) would be required. As a
standard condition of Project approval, the Project would be required to
comply with the site-specific recommendations contained in the Project -
specific geotechnical report. However, in an abundance of caution,
mitigation is recommended. The application of MM 4.5-1 would require
that the Building Official or his/her designee shall ensure that the grading
plan indicates the methods by which adequate shoring would occur. The
application of MM 4.5-1 would ensure that the subsurface excavation
would not slough or slump. (DEIR pp. 4.5-7, 4.5-8, 4.5-9 and 4.5-10)
MM 4.5-1: Slopes created during subsurface excavations associated
with the Project's construction process shall be shored in accordance
with OSHA excavation safety regulations (Title 29 Code of Federal
Regulations, Part 1926.650-652 [Subpart P]) to the satisfaction of the
City of Newport Beach Building Official. Prior to the issuance of a
grading permit, the Building Official or his/her designee shall ensure
that the grading plan indicates the methods by which adequate shoring
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will occur. The shoring methods must ensure that the subsurface
excavation will not slough or slump. The Construction Contractor
shall implement the shoring requirements throughout the subsurface
excavation period and allow inspection of the shoring method by the
City of Newport Beach. (DEIR p. 4.5-10)
MM 4.5-2: Expansive soils shall not be present as fill material below
the building slab and footings. During the property's site preparation
and grading phases, expansive soils shall be mixed with other soil
material to provide a uniform blend of material, compacted 10 a
minimum of 90 percent relevant compaction, to the satisfaction of the
City of Newport Beach Building Official. Prior to the issuance of a
grading permit, the Building Official or his/her designee shall ensure
that the grading plan indicates a subsurface soil content that is non -
expansive and compacted to at least 90 percent. The Construction
Contractor shall implement the requirements throughout the site
preparation and grading process and allow inspection of grading by
the City of Newport Beach. (DEIR pp. 4.5-10 and 4.5-11)
b. Expansive Soil
Potential Significant Impact: Whether the Project would be located on expansive soil, as defined in Table
18- 1-B of the Uniform Building Code (1994), creating substantial direct or
indirect risks to life or property. (Threshold d)
Finding: Impacts related to Geology and Soils Threshold d are discussed in detail in Subsection 4.5 of the
EIR. Based on the entire record, the City finds that mitigation measures are required to address the
potential for the Project to be developed on an expansive soil. With compliance with MM 4.5-1
and MM 4.5-2, the Project's potential to be constructed on expansive soil, creating substantial
direct or indirect risks to life or property, would be reduced to less than significant.
Facts in Support of the Finding: On-site soil testing conducted by the Project's geotechnical engineer, NMG,
concluded that the expansion potential of onsite soils is anticipated to
generally range from "Very Low" to "Medium" within the terrace and
existing fill materials. Soils with "High" expansion are likely to be
encountered in the siltstone/claystone of the Monterey Bedrock. The
potential for expansive soils to be encountered at the Project site represents
a potentially significant impact, because the presence of expansive soil
could lead to structural instability if the soils are not properly treated during
the construction process. Based on NMG's review of the site, past
geotechnical investigations for the site and for the surrounding area, NMG
determined that the Project site is suitable for the development of the
proposed Project from a geotechnical standpoint, provided the Project is
designed and constructed in accordance with the geotechnical
considerations and recommendations. In addition, as with every
development project, mandatory adherence to the California Building
Standards Code (CBSC) would be required. As a standard condition of
Project approval, the Project would be required to comply with the site-
specific recommendations contained in the Project -specific geotechnical
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report. However, in an abundance of caution, mitigation is recommended.
The application of MM 4.5-2 would require that the Building Official or
his/her designee shall ensure that the grading plan indicates a subsurface soil
content that is non -expansive and compacted to at least 90 percent. The
application of MM 4.5-2 would ensure that expansive soils are blended with
other soil material and compacted so as not to create a geologic hazard. With
compliance with MM 4.5-1 and MM 4.5-2, the Project's potential to be
constructed on expansive soil, creating substantial direct or indirect risks to
life or property, would be reduced to less than significant. (DEIR pp. 4.5-
8, 4.5-9 and 4.5-I1)
MM 4.5-1: Slopes created during subsurface excavations associated
with the Project's construction process shall be shored in accordance
with OSHA excavation safety regulations (Title 29 Code of Federal
Regulations, Part 1926.650-652 [Subpart PJ) to the satisfaction of the
City of Newport Beach Building Official. Prior to the issuance of a
grading permit, the Building Official or his/her designee shall ensure
that the grading plan indicates the methods by which adequate shoring
will occur. The shoring methods must ensure that the subsurface
excavation will not slough or slump. The Construction Contractor
shall implement the shoring requirements throughout the subsurface
excavation period and allow inspection of the shoring method by the
City of Newport Beach. (DEIR p. 4.5-10)
MM 4.5-2: Expansive soils shall not be present as fill material below
the building slab and footings. During the property's site preparation
and grading phases, expansive soils shall be mixed with other soil
material to provide a uniform blend of material, compacted to a
minimum of 90 percent relevant compaction, to the satisfaction of the
City of Newport Beach Building Official. Prior to the issuance of a
grading permit, the Building Official or his/her designee shall ensure
that the grading plan indicates a subsurface soil content that is non -
expansive and compacted to at least 90 percent. The Construction
Contractor shall implement the requirements throughout the site
preparation and grading process and allow inspection of grading by
the City of Newport Beach. (DEIR pp. 4.5-10 and 4.5-11)
c. Unique Paleontological Resource or Geological Feature
Potential Significant Impact: Whether the Project would directly or indirectly destroy a unique
paleontological resource or site or unique geologic feature. (Threshold f)
Finding: Impacts related to Geology and Soils Threshold f are discussed in detail in Subsection 4.5 of the
EIR. Based on the entire record, the City finds that mitigation measures are required to address the
potential that that unknown and undiscovered paleontological resources may be impacted by
development should be they be discovered and not properly identified and treated. With
compliance with MM 4.5-3, the Project's potential to directly or indirectly destroy a unique
paleontological resource or site or unique geologic feature, would be reduced to less than
significant.
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Facts in Support of the Finding: Due to the depth of the excavation required for the proposed subterranean
parking structure, there is a potential that previously buried paleontological
resources may be encountered where excavation depths exceed the depth
of disturbance associated with previous construction activities. If
paleontological resources are unearthed during the Project's excavation
activities and they are not properly identified and treated, a potentially
significant impact could occur. Implementation of MM 4.5-3 would ensure
proper identification and subsequent treatment of any significant
paleontological resource, site, or unique geologic feature that may be
encountered during ground -disturbing activities associated with Project
excavation activities on the Project site. With implementation of MM 4.5-
3 the Project's potential to impact paleontological resources on the Project
site would be reduced to less than significant. (DEIR pp. 4.5-9, 4.5-10,
and 4.5-11)
4. Tribal Cultural Resources
a. Known Tribal Cultural Resources
Potential Significant Impact: Whether the Project would cause a substantial adverse change in the
significance of a tribal cultural resource (TCR), defined in Public Resources
Code Section 21074 as either a site, feature, place, cultural landscape that is
geographically defined in terms of the size and scope of the landscape, sacred
place, or object with cultural value to a California Native American tribe, and
that is: (1) Listed or eligible for listing in the California Register of Historical
resources or in a local register of historical resources as defined in Public
Resources Code section 5020.1(k); or (2) A resource determined by the lead
agency, in its discretion and supported by substantial evidence, to be
significant pursuant to criteria set forth in subdivision (c) of Public Resources
Code Section 5024.1. (Threshold a)
Finding: Impacts related to Tribal Cultural Resources Threshold a are discussed in detail in Subsection 4.11
of the EIR. Based on the entire record, the City finds that mitigation measures are required to
address the remote potential that unknown and undiscovered tribal cultural resources may be
impacted by development should be they be discovered and not properly identified and treated.
With implementation of required mitigation, potential impacts would be reduced to below a level
of significance.
Facts in Support of the Finding: Pursuant to SB 18, in January 2021, the Native American Heritage
Commission (NAHC) conducted a Sacred Lands File (SLF) check on the
Project site, the results of which were negative. In addition, the City
conducted consultation with the Native American Tribes identified by the
NAHC. Because the site is fully developed under existing conditions and
none of the Tribes identified any known TCRs on the site under existing
conditions. As documented in EIR Subsection 4.4, Cultural Resources,
and based on a site-specific technical report prepared by Duke Cultural
Resources Management (CRM), the Project site does not contain any
known archaeological resources. Although Subsection 4.4 notes that there
is a potential for uncovering previously -undiscovered archaeological
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resources (including TCRs) during Project ground -disturbing activities),
mitigation has been identified to require that a qualified archaeological
monitor and a qualified Native American Tribal monitor are retained to
monitor the Project site during earthmoving activities and implement
mitigation to the satisfaction of the City in the event that any significant
archaeological or tribal cultural resources are inadvertently unearthed
during excavation and grading activities. Implementation of Mitigation
Measures MM 4.4-1 through MM 4.4-5 would ensure the proper
identification and subsequent treatment of any TCRs that may be
encountered during ground -disturbing activities associated with Project
construction. With implementation of the required mitigation, the
Project's potential impacts to important subsurface TCRs (if such
resources are unearthed during Project construction) would be reduced to
less -than -significant levels. (DEIR pp. 4.11-6 through 4.11-8)
MM 4.4-1: Prior to the issuance of a grading permit or any other permit
that authorizes disturbance of native soil, the Developer/Applicant shall a
retain a professional archaeologist who meets the U.S. Secretary of the
Interior Standards (SOI), to conduct monitoring. The Project
Archaeologist shall have the authority to temporarily redirect
earthmoving activities in the event that suspected archaeological or tribal
cultural resources are unearthed during Project construction. The Project
Archaeologist, with participation from Consulting Native American
Tribes) including the Gabrieleno Band of Mission Indians — Kizh Nation,
and the Juaneno Band of Mission Indians—Acjachemen Nation-Belardes,
the contractor, and the City of Newport Beach, shall develop an
Archeological Monitoring Plan to address the details, timing and
responsibility of all archaeological and tribal cultural monitoring and
mitigation activities that will occur on the Project site. A consulting tribe
is defined as a tribe that initiated the AB52 tribal consultation processfor
the Project, has not opted out of the AB52 consultation process, and has
completed AB52 consultation with the City as provided for in Cal Pub Res
Code Section 21080.3.2(b)(1) of AB52. The Developer/Applicant is
responsible for securing any required monitoring agreements with the
Tribes. Details in the Plan shall include:
a) Project grading and development scheduling;
b) The development of a rotating schedule in coordination with the
Developer and the Project Archeologist for designated Native
American Tribal Monitors from the consulting tribes during
grading, excavation and ground disturbing activities on the site:
including the scheduling, safety requirements, duties, scope of
work;
c) The Project archaeologist and the Consulting Tribes(s) that
choose to participate shall attend a pre -grading meeting with the
City, the construction manager and any subcontractors and will
conduct a mandatory Cultural Resources Worker Sensitivity
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Training to those in attendance. The Training will include a brief
review of the cultural sensitivity of the Project site and the
surrounding area; what resources could potentially be identified
during earthmoving activities; the requirements of the monitoring
program; the protocols that apply in the event inadvertent
discoveries of cultural resources are identified, including who to
contact and appropriate avoidance measures until the ftnd(s) can
be properly evaluated; and any other appropriate protocols. All
new construction personnel that will conduct disturbance
activities in native soil and that begin work on the Project
following the initial Training must take the Cultural Sensitivity
Training prior to beginning work and the Project archaeologist
and Consulting Tribe(s) that choose to participate shall make
themselves available to provide the training on an as -needed
basis;
d) If the Project Archaeologist or the Tribal Monitor suspect a
resource has been discovered, they shall immediately cause soil
disturbing operations to stop in a 50 foot radius around the find
to allow identification and evaluation of the suspected resource.
In consultation with the Native American Monitor, the Project
Archaeologist shall evaluate the suspected resource and make a
determination of significance pursuant to California Public
Resources Code Section 21083.2. If a significant resource is
discovered, a qualified person meeting the Secretary of the
Interior's standards (36 CFR 61), Tribal Representatives and
Monitors and the City of Newport Beach shall be consulted to
determine appropriate measures to avoid or mitigate negative
effects on the resource. Measures need to be tailored to the
resource and circumstances of the find, so cannot be determined
in advance. Determinations and recommendations by the
qualifted person meeting the Secretary of the Interior's standards
(36 CFR 61) shall be submitted to the City for consideration, and
implemented as deemed appropriate by the City in consultation
with the State Historic Preservation Officer (SHPO) and any and
all Consulting Native American Tribes as defined in MM 4.4-1
before any further work commences in the affected area. (DEIR
pp. 4.4-9 through 4.4-11)
MM 4.4-2: In the event that significant Native American cultural
resources are discovered, the following procedures shall be carried out
for final disposition of the discoveries:
a) One or more of the following treatment methods shall occur.
Evidence of such shall be provided to the City of Newport Beach.
Preservation -In -Place of the cultural resources, if
feasible. Preservation in place means avoiding the
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resources, leaving them in the place they were found with
no development affecting the integrity of the resources.
ii. Onsite reburial of the discovered items as detailed in the
treatment plan. This shall include measures and
provisions to protect the future reburial area from any
future impacts in perpetuity. Reburial shall not occur until
all legally required cataloging and basic recordation have
been completed. No recordation of sacred items is
permitted without the written consent of all Consulting
Native American Tribal Governments as defined in MM
4.4-1. The location for the future reburial area shall be
identified on a confidential exhibit on file with the City,
and concurred to by the Consulting Native American
Tribal Governments prior to the issuance of a grading
permit. (DEIR p. 4.4-11)
MM 4.3-3: The Developer or contractor shall provide a minimum of 30
days advance notice to the City and Consulting Tribes of all earthwork
activities in native soil. (DEIR p. 4.4-12)
MM 4.3-4: The City shall verify that the following note is included on the
Grading Plan:
"If any suspected archaeological or tribal cultural resources are
discovered during ground -disturbing activities and the Project
Archaeologist or Native American Tribal Representatives are not
present, the construction supervisor is obligated to halt work in a 50 -
foot radius around the find and call the Project Archaeologist and the
Tribal Representatives to the site to assess the significance of the find.
(DEIR p. 4.4-12)
MM 4.4-5: If Native American human remains and/or grave goods are
discovered during Project construction, then all construction activities
shall immediately cease. Native American "human remains" are defined
to include "an inhumation or cremation, and in any state of decomposition
or skeletal completeness. " (Pub. Res. Code § 5097.98 (d)(1).) Funerary
objects, referred to as "associated grave goods, " shall be treated in the
same manner and with the same dignity and respect as human remains.
(Pub. Res. Code § 5097.98 (a), d)(1) and (2). Any discoveries of human
skeletal material or human remains shall be immediately reported to the
County Coroner (Health & Safety Code § 7050.5(c); 14 Cal. Code Regs.
§ 15064.5(e)(1)(B)), and all ground -disturbing project ground -disturbing
activities on site and in any other area where the presence of human
remains and/or grave goods are suspected to be present, shall immediately
halt and remain halted until the coroner has determined the nature of the
remains. (14 Cal. Code Regs. § 15064.5(e).) If the coroner recognizes the
human remains to be those of a Native American or has reason to believe
they are Native American, he or she shall contact, within 24 hours, the
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Native American Heritage Commission, and Public Resources Code
Section 5097.98 shall be followed. (DEIR p. 4.4-12)
D. Impacts Determined by the EIR to be Significant and Unavoidable
No impacts were determined by the EIR to be significant and unavoidable.
VIII. SIGNIFICANT IRREVERSIBLE ENVIRONMENTAL EFFECTS
Potential Significant Impact: Whether any significant irreversible environmental changes would result
from implementation of the Project. An environmental change would fall into
this category if: a) the project would involve a large commitment of non-
renewable resources; b) the primary and secondary impacts of the project
would generally commit future generations to similar uses; c) the project
involves uses in which irreversible damage could result from any potential
environmental accidents; or d) the proposed consumption of resources is not
justified (e.g., the project results in the wasteful use of energy).
Finding: Significant irreversible environmental effects which would be caused by the Project are discussed
in detail in Subsection 5.2 of the EIR. Based on the entire record, the City finds that the Project
would not cause an irreversible change that would result in a significant adverse effect to the
environment.
Facts in Support of the Finding: The Project site has been developed as a car wash facility with associated
convenience market and gas station since 1970. Because the site is fully
developed under existing conditions, no non-renewable resources exist on
the Project site. Therefore, because there are no non-renewable resources
that exist on the site under existing conditions, conversion of the Project
site from its current fully developed condition to a residential land use
would have no direct effect on any non-renewable resources. (DEIR p.
5-1)
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Facts and Findings
Natural resources, in the form of construction materials and energy
resources, would be used in the construction of the proposed Project. The
consumption of these natural resources would represent an irreversible
change to the environment. However, implementation of a 28 -unit
residential condominium building with subterranean parking would have
no measurable adverse effect on the availability of such resources,
including resources that may be non-renewable (e.g., construction
aggregates, fossil fuels). Additionally, the Project is required by law to
comply with the California Building Standards Code (CALGreen), which
will minimize the Project's demand for energy, including energy produced
from non-renewable sources. (DEIR pp. 5-1 and 5-2)
The consumption of non-renewable resources to construct and operate the
Project over the long-term would likely commit subsequent generations to
the same use of the land and similar patterns of energy consumption, since
the development of this Project represents a large investment of capital
and thus reduces the likelihood that the completed Project would be
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demolished and some alternative land uses developed in the near future.
However, due to the limited scale of the proposed development on 1.26
acres, and because the Project would occur in Newport Center within a
predominately built -out portion of the City of Newport Beach, the
proposed Project would not be expected to either directly or indirectly
result in significant irreversible environmental changes to the Newport
Center area. The Newport Center area is developed with urban uses and
will continue to be developed with urban uses into the foreseeable future.
Accordingly, the Project and its environmental effects would not compel
or commit surrounding properties to land uses other than those that exist
today or those that are planned by the City of Newport Beach General
Plan. For this reason, the Project would not result in a significant,
irreversible change to nearby, off-site properties. (DEIR p. 5-2)
EIR Subsection 4.7, Hazards and Hazardous Materials, provides an
analysis of the potential for hazardous materials to be transported to/from
the Project site and or used on the site during construction and operation.
As concluded in the analysis, mandatory compliance with federal, State,
and local regulations related to hazardous materials handling, storage, and
use by all Project construction contractors (near term) and occupants
(long-term) would ensure that any hazardous materials used on-site would
be safely and appropriately handled to preclude any irreversible damage
to the environment that could result if hazardous materials were released
from the site. (DEIR p. 5-2)
IX. GROWTH -INDUCING IMPACTS
Potential Significant Impact: Whether the proposed Project could be growth inducing. The CEQA
Guidelines identify a project as growth inducing if it would foster economic
or population growth, or the construction of additional housing, either directly
or indirectly, in the surrounding environment (CEQA Guidelines
§ 15126.2(d)).
Finding: The Project's potential to result in growth -inducing impacts is discussed in detail in Subsection 5.3
of the EIR. Based on the entire record, the City finds that the Project would not result in substantial,
adverse growth -inducing impacts.
Facts in Support of the Finding: Population growth would likely take place as a result of the proposed
Project's operation as a residential building, but the limited intensity of
population growth at the site associated with the construction of 28
residential units with approximately 62 persons would not represent a
substantial deviation from the planned growth identified in the City of
Newport Beach General Plan. The Project's construction -related and
operational -related employees would purchase goods and services in the
region, but any secondary increase in employment associated with
meeting these goods and services needs would be marginal,
accommodated by existing goods and service providers, and highly
unlikely to result in any new physical impacts to the environment. (DEIR
pp. 5-2 and 5-3)
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Based on the Department of Finance (DOF) statistics, the proposed Project
would result in approximately 62 persons living in the 28 condominium
units (28 dwelling units x 2.19 persons per household = 61.32 persons,
stated herein as 62 persons). The Project's proposed 62 -person increase
would represent an approximately 0.07% ([62 people - 85,378 people] x
100 = 0.07%) increase in the City's population. None of the improvements
proposed as part of the Project would foster an indirect increase in the
City's population because the surrounding area is fully developed and the
Project is connecting to existing infrastructure systems. The vicinity of
the Project site is an urbanized area that already includes a variety of land
uses, including office, retail (Fashion Island), restaurant, entertainment,
and commercial land uses. (DEIR p. 5-4)
The proposed Project would help to meet the demand for luxury multi-
family residences within Newport Beach and would be served by the
existing infrastructure in the Project area, as well as the nearby commercial
and employment opportunities. The operation and maintenance of the
Project would generate several jobs, but any potential growth -inducing
impact of the employment of persons at the Project site would be offset by
the removal of the jobs associated with the existing car wash and ancillary
fuel operation. Accordingly, the proposed Project would not directly
promote growth either at the Project site or at the adjacent and surrounding
properties. In conclusion, it is unlikely, speculative, and not reasonably
foreseeable that the Project would induce growth in the form of additional
economic activity or employment that would result in measurable impacts
on the off-site physical environment. (DEIR p. 5-4)
X. PROJECT ALTERNATIVES
A. No Proiect/No Redevelopment Alternative
The No Project/No Redevelopment Alternative allows decision -makers to compare the environmental impacts
of approving the proposed Project to the environmental impacts that would occur if the property were to be
unchanged from existing conditions for the foreseeable future. The No Project/No Redevelopment Alternative
evaluates no redevelopment of the property and no additional development on the Project site beyond that
which occurs under existing conditions. As such, the Project site would remain occupied by the existing car
wash with ancillary gas station and convenience market, which this alternative assumes would continue to
operate.
Finding: Alternatives to the Project are discussed in detail in Section 6.0 of the EIR. Based on the entire
record, the City finds that the No Project/No Redevelopment Alternative was considered but rejects
the Alternative because it would fail to meet all of the Project objectives. Specifically, because
retaining the site in its existing condition as a car wash does not support the land value and purchase
price of the property and the owner does not plan to continue its use, the alternative would not
redevelop an underutilized property with a use that is financially feasible to construct and operate
or make efficient use of existing infrastructure by repurposing a property with a higher and better
use than currently occurs on the property. In addition, the alternative would fail to maximize the
surface use of a redeveloped property by accommodating parking underground. The alternative
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also would not help the City meets its housing goals or reduce the commuting distance between
housing units and nearby jobs, services, and entertainment because it would fail to meet the
following objectives: i) increase the available housing stock within the City of Newport Beach and
maximize the development potential of the site by constructing a project with at least 22 dwelling
units, ii)provide housing options for owner -occupied mid -rise multi -family flats in Newport Center
to diversify the range of available residential housing unit types, iii) introduce a luxury, multi-
family residential development in Newport Center than can attract households in the surrounding
area that are seeking low maintenance and single -level living options, iv) provide a new multi-
family residential development in Newport Center that is within walking distance of, and has
pedestrian connections to, employment, shopping, entertainment, public services, and recreation,
or v) implement a residential development that provides on-site amenities for its residents. The
alternative would also not maintain high-quality architectural design in Newport Center by adding
a building that has a recognizable architectural style and that complements the architectural styles
that exist in the surrounding Newport Center community. Also, maintaining the site in its current
use under this alternative would continue its use as a car wash that is not energy-efficient and that
would therefore fail to meet the Project's objective to redevelop a property that uses outdated
operational technologies with a new use that is designed to be energy efficient and avoid the
wasteful use of energy and water.
Facts in Support of the Finding: Although all of the Project's significant effects would be mitigated to
below a level of significance, implementation of the No Project/No
Redevelopment Alternative would avoid all of the Project's potentially
significant impacts to the environment. However, because the existing car
wash with ancillary gas station and convenience market generates more
daily traffic to and from the site than would the Project's proposed
residential condominium building, effects associated with vehicular -
related air pollutant emissions, greenhouse gas emissions, and noise would
be greater under the No Project/No Redevelopment Alternative than
would occur under the proposed Project. In addition, the on-site use
dispenses gasoline, uses chemicals in the car washing operation, generates
wastewater as a byproduct of the car washing operation, and produces
noise from vacuums, dryers, and an outdoor sound amplification system
which would continue to occur on the site. For these reasons, the No
Project/No Redevelopment Alternative is not an environmentally superior
alternative. The No Project/No Redevelopment Alternative would also
fail to meet all of the Project objectives. In addition, retaining the site in
its existing condition as a car wash does not support the land value and
purchase price of the property and the owner does not plan to continue its
use. (DEIR pp. 6-7 through 6-13) Accordingly, the City rejects the No
Project/No Redevelopment Alternative.
B. No Project/Office Redevelopment Alternative
The No Project Alternative/Office Redevelopment Alternative evaluates redevelopment of the Project site with
an office building that would implement the site's existing Office Regional (OR) zoning designation and City
of Newport Beach General Plan "CO -R (Regional Commercial Office)" land use designation. The No
Project/Office Redevelopment Alternative was selected by the Lead Agency to compare the environmental
effects of the proposed Project against what could reasonably occur if the Project site were developed with
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office uses in conformance with the site's existing zoning and General Plan designations and other applicable
Municipal Code regulations.
Finding: Alternatives to the Project are discussed in detail in Section 6.0 of the EIR. Based on the entire
record, the City finds that the No Project Alternative/Office Redevelopment Alternative was
considered but rejects the alternative because it would fail to meet seven of the ten Project
objectives. Specifically, the No Project/Office Redevelopment Alternative would not meet the
Project objectives related to providing residential development in Newport Center.
Facts in Support of the Finding: Implementation of the No Project/Office Redevelopment Alternative
would reduce but not avoid the Project's significant impacts to cultural
resources, TCRs, paleontological resources (potential presence of
significant subsurface resources that could be unearthed and disturbed
during ground excavation) and geology/soils (temporary unstable geologic
units or soils, and the potential for expansive soils to be encountered
during ground excavation). Impacts to biology (habitat removals that
could potentially contain active migratory bird nests) would be identical
under this alternative and the proposed Project. All of the Project's
significant impacts would be mitigated to below a level of significance,
and the same mitigation measures would apply to this alternative. This
alternative slightly reduces impacts associated with cultural resources,
TCRs, and paleontological resources and reduces impacts associated with
geology/soils due to the limited need for subsurface excavation. This
alternative reduces impacts associated with construction noise because
construction would occur over a shorter timeframe and reduces GHG
emissions because fewer vehicle trips would travel to and from the site
and the building's area -source and energy -source would be lowered due
to its smaller size compared to the Project. Because the No Project/Office
Redevelopment Alternative results in a lower traffic volume than would
the proposed Project, this alternative reduces traffic impacts and
corresponding reduction in mobile source air quality emissions and
vehicular -related operational noise. No impacts to land use and planning
would occur because the alternative would be consistent with the site's
zoning and General Plan designations and would have potentially reduced
aesthetic effects because the building height would be lower than the
building height proposed by the Project. In regards to the Project
objectives, the No Project/Office Redevelopment Alternative would meet
three of the Project's ten objectives. The No Project/Office
Redevelopment Alternative would fail to the other seven Project
objectives. Specifically, the No Project/Office Redevelopment Alternative
would not meet the Project objectives related to providing residential
development in Newport Center. (DEIR pp. 6-20 and 6-21) Accordingly,
the City rejects the No Project/Office Redevelopment Alternative.
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C. Commercial/Restaurant Redevelopment Alternative
The Commercial/Restaurant Redevelopment Alternative evaluates redevelopment of the Project site with a
single or two-story restaurant in a contemporary architectural design. The existing car wash and ancillary
convenience market, gas station and associated improvements would be removed from the property as would
occur under the proposed Project to redevelop the site. This alternative would provide for the highest intensity
of commercial development allowed under the property's existing General Plan "Regional Commercial Office
(CO -R)" land use designation and "OR (Office Regional)" Zoning District designation. The
Commercial/Restaurant Redevelopment Alternative was selected by the Lead Agency to compare the
environmental effects of the proposed Project against what could reasonably occur if the Project site were
developed to the highest traffic generating use per existing land use and zoning designations. Although
technically this alternative is another version of a no project alternative because it considers redevelopment of
the site in accordance with a use that is allowed on the site by property's existing CO -R General Plan and OR
Zoning District designation, the Lead Agency has not identified the Commercial/Restaurant Redevelopment
Alternative as a true no project alternative, because depending on physical and operational characteristics,
many food service businesses require the approval of a Conditional Use Permit (CUP) or Minor Use Permit
(MUP) in order to operate in the OR Zoning District. A Site Development Review (SDR) would also be
required to construct a building with 10,000 S.F. of gross floor area or greater. Depending on the characteristics
of the restaurant proposed, a parking waiver may be required to reduce the number of required parking spaces.
Finding: Alternatives to the Project are discussed in detail in Section 6.0 of the EIR. Based on the entire
record, the City finds that the Commercial/Restaurant Redevelopment Alternative was considered
but rejects the alternative because it would fail to meet 6 of the Project Objectives, specifically the
Project objectives related to providing residential development in Newport Center.
Facts in Support of the Finding: The implementation of the Commercial/Restaurant Redevelopment
Alternative would reduce, but not avoid, the Project's significant impacts
to cultural resources, TCRs, paleontological (potential presence of
significant subsurface resources that could be unearthed and disturbed
during ground excavation) and geology/soils (temporary unstable geologic
units or soils, and the potential for expansive soils to be encountered
during ground excavation). Impacts to biology (habitat removals that
could potentially contain active migratory bird nests) would be identical
under this alternative as with the proposed Project. All of the Project's
significant impacts would be mitigated to below a level of significance,
and the same mitigation measures would apply to this alternative. This
alternative would have decreased impacts associated with construction
noise because construction would occur over a shorter timeframe.
Because the Commercial/Restaurant Redevelopment Alternative would
result in a higher traffic volume than would the proposed Project, this
alternative would result in a corresponding increase in vehicular -related
air quality emissions, GHG emissions, and operational noise. Few if any
impacts to land use and planning would occur because the alternative
would be consistent with the site's zoning and General Plan designations
and would have reduced aesthetic effects because the building height
would be slightly lower than the building height proposed by the Project.
In regards to the Project objectives, the Commercial/Restaurant
Redevelopment Alternative would meet 4 of the Project's 10 objectives
but would fail to meet the remaining 6 objectives. Specifically, the
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Commercial/Restaurant Redevelopment Alternative would not meet the
Project objectives related to providing residential development in Newport
Center. (DEIR p. 6-28) Accordingly, the City rejects the
Commercial/Restaurant Redevelopment Alternative.
D. Multiple Unit Residential (RM) Alternative
The Multiple Unit Residential (RM) Alternative was selected by the Lead Agency to compare the
environmental effects of the proposed Project against what could reasonably occur on the Project site if the
site was developed with a different type and number of multi -family residential units that require substantially
less subsurface excavation and a shorter construction duration, to reduce the proposed Project's temporary
construction -related effects and potential impacts related to subsurface excavation.
Finding: Alternatives to the Project are discussed in detail in Section 6.0 of the EIR. Based on the entire
record, the City finds that although the Multiple Unit Residential (RM) Alternative is identified as
an Environmentally Superior Alternative that is not the No Project Alternative; the Multiple Unit
Residential (RM) Alternative would fail to meet six of the Project's ten objectives.
Facts in Support of the Finding: The implementation of the Multiple Unit Residential (RM) Alternative
would reduce, but not avoid, the Project's significant impacts to cultural
resources, TCRs, paleontological resources (potential presence of
significant subsurface resources that could be unearthed and disturbed
during ground excavation) and geology/soils (geologic units or soils and
expansive soils that may be unstable). Impacts to biology (habitat
removals that could potentially contain active migratory bird nests) would
be identical under this alternative and the proposed Project. All of the
Project's significant impacts would be mitigated to below a level of
significance, and the same mitigation measures would apply to this
alternative. This alternative would have decreased impacts regarding
cultural resources, TCRs, paleontological resources, and geology/soils due
to the limited need for subsurface excavation for a subterranean parking
structure. This alternative would have decreased impacts associated with
construction noise because construction would occur over a shorter
timeframe. Because the Multiple Unit Residential (RM) Alternative
would result in a slightly lower daily traffic volume than would the
proposed Project, this alternative would have slightly reduced traffic
impacts and a corresponding slight decrease in vehicular -related air
quality emissions and operational noise. Similar impacts to land use and
planning would occur because, like the proposed Project, this alternative
would require a change in the property's General Plan and zoning
designations from commercial to residential, although this alternative
would result in a shorter building than the proposed Project. Reduced
aesthetic effects would occur because the building height would be lower
than the building height proposed by the Project. However, the townhome
design would be less consistent with the surrounding commercial and
office development. The Multiple Unit Residential (RM) Alternative is
identified as an Environmentally Superior Alternatives that is not the No
Project Alternative; however, the Multiple Unit Residential (RM)
Alternative would fail to meet six of the Project's ten objectives.
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E. Range of Alternatives
Finding: The City finds that Alternatives to the Project consisting of the No Project/No Redevelopment
Alternative, the No Project/Office Redevelopment Alternative, the Commercial/Restaurant
Alternative, and the Multiple Unit Residential (RM) Alternative, represent a reasonable range of
alternatives.
Facts in Support of the Finding: Pursuant to Public Resources Code Section 21002 and the State CEQA
Guidelines Section 15126.6(a), an EIR must assess a reasonable range of
alternatives to the project action or location. Section 15126.6(a) places
special emphasis on focusing the discussion on alternatives which provide
opportunities for eliminating any significant adverse environmental
impacts, or reducing them to a level of insignificance, even if the
alternative would impede to some degree the attainment of the project
objectives, or would be costlier. The discussion of alternatives is governed
by the "rule of reason." The EIR need not consider an alternative whose
effect cannot be reasonably ascertained, or does not contribute to an
informed decision-making and public participation process. Because there
are no reasonably feasible and available alternative sites for the Project or
alternative land uses for the Project Site, consideration of the No
Project/No Redevelopment Alternative, the No Project/Office
Redevelopment Alternative, the Commercial/Restaurant Alternative, and
the Multiple Unit Residential (RM) Alternative represents a reasonable
range of alternatives. The purpose of the CEQA requirements of studying
a reasonable range of alternatives would not be met by constructing
additional alternatives that would not meet the basic objectives of the
Project. There are no other feasible alternatives that would achieve all of
the Project's basic objectives while lessening or avoiding the Project's
significant environmental effects.
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Attachment B
Resolution No. 2021-91 (GPA)
16-104
RESOLUTION NO. 2021- 91
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, ADOPTING
GENERAL PLAN AMENDMENT NO. GP2020-001 FOR
THE RESIDENCES AT NEWPORT CENTER LOCATED
AT 150 NEWPORT CENTER DRIVE (PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers, and privileges, or procedures granted or prescribed by any
law of the State of California;
WHEREAS, an application was filed by Newport Center Anacapa Associates,
LLC ("Applicant"), with respect to property located at 150 Newport Center Drive and
legally described in Exhibit "A," which is attached hereto and incorporated herein by
reference ("Property");
WHEREAS, the Project includes the demolition of an existing 2,085 square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals by the City:
• General Plan Amendment No. GP2020-001 — to change the Property's land
use designation from Regional Commercial Office (CO -R) to Multiple
Residential (RM) and create a new Anomaly Location for the Property that
authorizes a maximum development density of 28 dwelling units;
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
• Major Site Development Review No. SD2020-001 — to allow for the
development of a four-story structure containing 28 luxury condominium units
and common space areas over a two-level below -grade parking garage;
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• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually;
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect
at the time of Project approval and to provide the City with assurance that
certain obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study
and Environmental Impact Report ("EIR") are warranted for the Project pursuant
to California Public Resources Code Section 23000 et seq ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA
Guidelines"), and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Property is designated Regional Commercial Office (CO -R) by
the City of Newport Beach General Plan ("General Plan") Land Use Element and is
located within the Office Regional (OR) Zoning District;
WHEREAS, the Property is not located within the coastal zone;
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the
Planning Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures) and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
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WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the public hearing was given in accordance with the Ralph M.
Brown Act") and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map
Review), 20.56 (Planned Community District Procedures) and 20.62 (Public Hearings)
of the NBMC. Evidence, both written and oral, was presented to, and considered by, the
City Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby amends the
General Plan of the City of Newport Beach to change the Land Use Designation of the
property from Regional Commercial Office (CO -R) to Multiple Residential (RM), as
depicted in Exhibit "B," which is attached hereto and incorporated herein by reference.
Section 3: The City Council of the City of Newport Beach hereby amends the
General Plan of the City of Newport Beach to insert Anomaly Number 82 into Table LU2
(Anomaly Locations) to allow for the development of 28 dwelling units, on the Property,
as depicted in Exhibit "C," which is attached hereto and incorporated herein by
reference.
Section 4: Amendments to the General Plan are a legislative act. Neither Title
20 (Planning and Zoning) of the NBMC, the Charter of the City of Newport Beach, nor
California Government Code Section 65350 et seq. set forth any required findings for
either approval or denial of amendments to the General Plan. Notwithstanding the
foregoing, General Plan Amendment No. GP2020-001 is consistent with the General
Plan based upon the facts set forth below.
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Facts in Support of Finding of Consistency with the General Plan:
1. General Plan Amendment No. GP2020-001 and the resulting land use change
are compatible with the existing surrounding uses and planned land uses
identified by the General Plan, because the Project would introduce additional
residential land uses in Newport Center which includes a diverse mix of land
uses. The conversion from Regional Commercial Office (CO -R) to Multiple
Residential (RM), will be compatible with adjacent commercial properties in terms
of bulk, scale, setbacks, architectural style, and pedestrian connectivity.
Additional residential development would support commercial properties within
Newport Center such as Fashion Island.
2. General Plan Amendment No. GP2020-001 from Regional Commercial Office
(CO -R) to (Multiple Residential) RM does not eliminate existing or future land
uses to the overall detriment of the community given the Property's size, location,
and surrounding uses. Maintaining the Property's Regional Commercial Office
(CO -R) land use designation would require redevelopment or major
improvements to the Property to accommodate other commercial uses.
3. General Plan Amendment No. GP2020-001 and the resulting land use change
are consistent with applicable land use policies of the General Plan. In -keeping
with General Plan Policy LU 6.14 (Newport Center), the Property is located in an
area of Newport Center where multi -family uses are encouraged to produce
opportunities to live close to jobs, commerce, entertainment, and recreation.
Consistent with General Plan Policy LU 3.3 (Opportunities for Change), the
Project would provide opportunities for improved development and enhanced
environments for residences in the Fashion Island/Newport Center area and add
28 condominium units in proximity to jobs, and services. Further, the Project
would not increase the amount of office uses in the area.
4. The size, density and character of the proposed dwelling units complement the
existing land uses in the project area and include design elements consistent
with Land Use Element Policy 5.1.9 (Character and Quality of Multi -Family
Residential) that require multi -family dwellings to be designed to convey a high-
quality architectural character. Consistent with General Plan Policy LU 6.2.1
(Residential Supply), the provision of 28 dwelling units on the Property would
accommodate Newport Beach population needs identified in the General Plan
Housing Element and accommodate market demand for residential uses.
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5. The Property is located in an area of the City that has sufficient utilities systems
to serve the Project.
6. Council Policy A-18 requires that proposed General Plan amendments be
reviewed to determine if a vote of the electorate would be required pursuant to
Section 423 of the City Charter. If a General Plan Amendment (separately or
cumulatively with other GPAs within the previous 10 years) generates more than
100 peak hour trips (a.m. or p.m.), adds 40,000 square feet of non-residential
floor area, or adds more than 100 dwelling units in a statistical area, a vote of the
electorate would be required if the City Council approves the GPA. The Project is
the third General Plan Amendment in Statistical Area L1 within the last 10 years,
including the approved Newport Beach Country Club Clubhouse (PA2008-152)
and Vivante Senior Housing (PA2018-185) projects. General Plan Amendment
No. GP2020-001 results in 28 additional dwelling units and there is no change in
the square footage of non-residential floor area. The 28 additional dwelling units
result in a net increase of 3.3 a.m. peak hour trips and 2.3 p.m. peak hour trips
based on the commercial blended trip rate (for existing uses) and High -Rise
Residential Condominium/Townhouse trip rate for the proposed use, as provided
in Council Policy A-18. Therefore, the Project individually does not exceed
Section 423's thresholds. Furthermore, including 80 percent of prior General Plan
amendments from the last 10 years with the Project (i.e. cumulative analysis),
results in a total increase of 16,800 square feet of nonresidential floor area, 25
a.m. peak hour trips, 44 p.m. peak hour trips, and 100 residential dwelling units
for Statistical Area L1. As none of the thresholds specified by Charter Section
423 are exceeded, no vote of the electorate is required if the City Council
chooses to approve General Plan Amendment No. GP2020-001.
7. Pursuant to California Government Code Section 65352.3 (SB18), a local
government is required to contact the appropriate tribes identified by the Native
American Heritage Commission ("NAHC") each time it considers a proposal to
adopt or amend the General Plan. If requested by any tribe, the local government
must consult for the purpose of preserving or mitigating impacts to cultural
resources. The City received comments from the NAHC on January 5, 2021
indicating that nine tribal contacts should be provided notice regarding the GPA.
The tribal contacts were provided notice via certified mail and email on January
7, 2021. California Government Code Section 65352.3 requires notification 90
days prior to Council action to allow tribal contacts to respond to the request to
consult. As a result of the notice, two Tribes requested consultation including the
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Gabrieleno Band of Mission Indians - Kizh Nation and the Juaneno Band of
Mission Indians, Acjachemen Nation — Belardes.
8. Although the Property does not contain any known archaeological resources,
there is a potential for uncovering archaeological resources (including tribal
cultural resources) during construction. During consultation with the
aforementioned, additional information was provided to the City that resulted in
changes to the draft mitigation measures of the EIR related to Tribal Cultural
Resources. Based on the City's consultation with both Tribal Governments, the
EIR was updated to incorporate mitigation measures that would reduce potential
impacts to less than significant levels. For example, the EIR includes mitigation
measures to require that a qualified archaeological monitor and qualified Native
American Tribal monitor are retained to monitor the Project site during any
ground disturbing construction activities.
Section 5: The City Council of the City of Newport Beach hereby amends the
General Plan of the City of Newport Beach to remove 2,085 square feet from Anomaly
35 in Table LU2 (Anomaly Locations) to reflect the demolition of the existing commercial
structure on the Property.
Section 6: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 7: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this resolution. The
City Council hereby declares that it would have passed this resolution, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases be declared invalid
or unconstitutional.
Section 8: The Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA,
the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-_,
the City Council, having final approval authority over the project, adopted and certified
as complete and adequate the Residences at Newport Center Final Environmental
Impact Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and
Reporting Program." Resolution No. 2021-_, including all findings contained therein, is
hereby incorporated by reference.
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Section 9: This resolution shall take effect immediately upon its adoption by
the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 28th day of September, 2021.
Brad Avery
Mayor
ATTEST:
Leiiani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachment(s): Exhibit A — Legal Description
Exhibit B — General Plan Amendment
Exhibit C — Proposed Table LU2 — Anomaly Locations
16-111
Exhibit "A"
Legal Description
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No.
282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1,
Page 88 of Miscellaneous Record Maps, records of Orange County, California.
16-112
Exhibit "B"
General Plan Amendment
16-113
74
43 H 44
Land Use Change:
Regional Commercial Office (CO -R)
portion of Anomaly 35 to Multiple Unit
Residential (RM) and Anomaly 82
74
45
82
34
!X:
47
75
O, -
Exhibit "C"
Proposed Table LU2 — Anomaly Locations
16-115
Anomaly Statistical Land Use Development
Number Area Designation Limit (so Development Limit
35 1 L1 CO-R 197,010
82 1 L1 I RM 1 1 28 Dwelling Units
16-116
Attachment C
Resolution No. 2021-92 (SDR)
16-117
RESOLUTION NO. 2021- 92
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
MAJOR SITE DEVELOPMENT REVIEW NO. SD2020-001
FOR THE RESIDENCES AT NEWPORT CENTER AND
RESCINDING USE PERMIT NO. UP1461 FOR A CAR
WASH LOCATED AT 150 NEWPORT CENTER DRIVE
(PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, an application was filed by Newport Center Anacapa Associates, LLC,
("Applicant"), with respect to property located at 150 Newport Center Drive and legally
described in Exhibit 'A" which is attached hereto and incorporated herein by reference
("Property");
WHEREAS, the Project includes the demolition of an existing 2,085 -square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals from the City:
• General Plan Amendment No. GP2020-001 —to change the Property's land use
designation from Regional Commercial Office (CO -R) to Multiple Residential
(RM) and create a new Anomaly Location for the Property that authorizes a
maximum development density of 28 dwelling units,
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
• Major Site Development Review No. SD2020-001 —to allow for the development
of a four-story structure containing 28 luxury condominium units and common
space areas over a two-level below -grade parking garage;
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• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually;
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect at
the time of Project approval and to provide the City with assurance that certain
obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study and
Environmental Impact Report ("EIR") are warranted for the Project pursuant to
California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines"),
and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Property is designated Regional Commercial Office (CO -R) by the
City of Newport Beach General Plan ("General Plan") Land Use Element and is located
within the Office Regional (OR) Zoning District;
WHEREAS, the Property is not located within the coastal zone;
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning
Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures) and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
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WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with the Ralph M. Brown Act
and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56
(Planned Community District Procedures) and 20.62 (Public Hearings) of the Newport
Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and
considered by, the City Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council does hereby approve Major Site Development
Review No. SD2020-001.
In accordance with Section 20.52.080(F) (Site Development Review) of the NBMC,
approval of Major Site Development Review No. SD2020-001 is supported by findings
and facts set forth below.
Finding:
A. Allowed within the subject Zoning district,-
Fact
istrict,
Fact in Support of Finding:
1. Major Site Development Review No. SD2020-001, for a 28 -unit condominium
project, is consistent with the proposed Planned Community Development Plan
(adopted by Resolution 2021-_) that allows 28 residential units.
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Finding.-
B.
inding:
B. In compliance with all of the applicable criteria in [NBMC Subsection
20.52.080(C) (2) (c)]:
i. Compliance with this Section, the General Plan, this Zoning Code, any
applicable specific plan, and other applicable criteria and policies related to
the use or structure;
ii. The efficient arrangement of structures on the site and the harmonious
relationship of the structures to one another and to other adjacent
development; and whether the relationship is based on standards of good
design,
iii. The compatibility in terms of bulk, scale, and aesthetic treatment of
structures on the site and adjacent developments and public areas;
iv. The adequacy, efficiency, and safety of pedestrian and vehicular access,
including drive aisles, driveways, and parking and loading spaces;
V. The adequacy and efficiency of landscaping and open space areas and the
use of water efficient plant and irrigation materials; and
vi. The protection of significant views from public rights) -of -way and
compliance with [NBMC] Section 20.30. 100 (Public View Protections), and
Facts in Support of Finding:
1. Upon approval of the General Plan Amendment No. GP2020-001 and Zoning
Code Amendment No. CA2020-008, the Project will be consistent with the General
Plan and Zoning designations. Therefore, approval of Site Development Review
No. SD2020-001 is contingent upon approval of the aforementioned amendments.
2. The building's material palate consists of neutral stone and glass building facade
compatible with the surrounding development in Newport Center. The design will
complement, enhance, and be compatible with the adjacent retail and office
properties. The exterior will be comprised predominantly of stone base, stone
cladding, metal finishes and glass. Massing offsets, variations of roof line, varied
textures, recesses, articulation, and design accents on the elevation are integrated
to enhance the expression of a contemporary architectural style.
3. The 28 -dwelling -unit Project has been designed as a four-story building structure
with two enclaves that provide for effective private open space, light, and air for
each unit. The Project is integrated as a unified development through the use of
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similar architectural style and design elements, on-site parking, and adequate
vehicular and pedestrian circulation with adjacent properties.
4. The proposed setbacks along each street frontage are appropriate to support
pedestrian connectivity within Newport Center and reduce the appearance of bulk.
All entry level residential units are oriented toward adjacent streets to maximize
the pedestrian relationship of the development to the surrounding Newport Center
area. The street setbacks are consistent with surrounding zoning districts and
afford a greater interface with the adjacent rights-of-way to ensure compatibility
with the pedestrian environment.
5. The proposed patios along Newport Center Drive have been set back from the
property line and create visual interest and modulation of form for pedestrians and
motorists along Anacapa Drive. The patio walls include solid and glass elements
to reduce the appearance of bulk, and the series of small retaining planter walls
create a gradation of height from the sidewalk up to the residential units. Private
terraces are provided on the upper floors, in varying locations to create visual
interest and provide additional building articulation through the use of functional
outdoor areas.
6. The height, bulk, and scale of the residential building are comparable to height
limits on surrounding properties and existing building heights in the southern half
of Newport Center. The building is designed to provide variation and modulation
between the two main buildings for visual interest and relief. The front fagades
include both vertical and horizontal off -sets and utilize a variation of building
materials to provide enhanced visual relief. The massing of the Project is broken
up into two distinct mid -rise structures, breaking up building massing.
7. Mechanical equipment for the residential units has been located within the parking
garage as well as enclosures at the roof level to reduce noise impacts and
minimize aesthetic impacts. The rooftop equipment, stairways, and elevator
overrun are located in the center of the roof to reduce the appearance of bulk and
height.
8. The Project has been designed to avoid conflicts among uses, such as noise,
vibration, lighting, odors, and similar impacts. The podium wall provides a buffer
between the proposed residential units and the adjacent commercial development
to the south and west of the Property and is designed to maintain privacy and
protection for the residential tenants.
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9. Walkways and egress are sufficient throughout the Property as reviewed by the
Building Division and the City Traffic Engineer. Existing pedestrian easements will
be maintained at an appropriate width along the southern property line and along
Anacapa Drive to ensure adequate access across the site.
10. Pursuant to Title 20 (Planning and Zoning) of the NBMC, the Project provides the
required 56 parking spaces for the residences, 14 residential guest or employee
parking spaces, and 12 surplus spaces. All of the parking is provided on-site within
the assigned/private residential two -car garages and open guest parking stalls.
11. On-site circulation, project access, and parking areas are designed to provide
standard -sized parking spaces, minimum 26 -foot -wide (two-way) driveways, and
the minimum vehicle turning radius to provide adequate access for residents and
guests (including accessible parking stalls), emergency vehicles, delivery trucks,
and refuse collections vehicles, as determined by the City Traffic Engineer.
12. The Project does not change any street parking configurations, as there is no street
parking provided on Anacapa Drive or Newport Center Drive adjacent to the
Property. The recently constructed bike lane on Anacapa Drive would not be
impacted as part of the Project. The site design provides two new curb cuts with
guest ingress and egress access from Anacapa Drive. The Project utilizes an
existing driveway at the south of the Property for primary resident access. The
Project provides adequate sight distance at each driveway, as determined by the
City Traffic Engineer.
13. Substantial landscaping is provided throughout the site in areas that are not utilized
by the residential units or areas for parking circulation. All setback areas are
landscaped. A variation of ornamental groundcover, vines, shrubs, and trees are
utilized to help soften and buffer the massing of the condominium units and podium
at ground level. In particular, landscaping buffers have been provided along the
western property line to screen the pool area for the residents and soften the
appearance of the podium wall from the Gateway Plaza parking lot.
14. New street trees are proposed along Anacapa Drive and will be subject to the
review of the Municipal Operations Division.
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15. The Project is subject to the City's Water -Efficient Landscape requirements set
forth in NBMC Chapter 14.17 and compliance will be confirmed at plan check prior
to the issuance of building permits.
16. The Project provides a series of common outdoor living areas that include a private
dog run, entry court, and pool area. The units include terraces and patios for private
outdoor space.
17. In the viewshed of the Pacific Ocean as seen from Civic Center Park, the Property
is partially visible. However, the Project is mostly blocked from view by intervening
structures. The Project would appear lower in profile than the horizon ocean view.
As analyzed in the Draft El R, implementation of the Project would have a less than
significant impact on scenic ocean views.
18. The Project is not visible from the General Plan designated Coastal View Roads
including MacArthur Boulevard or Avocado Avenue, where the public is afforded
views of the Pacific Ocean. Additionally, the Project would not be visible from the
segment of Newport Center Drive that is designated a Coastal View Road, as
views are towards the ocean in the opposite direction of the Property.
Finding:
C. The proposed development is not 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
or working in the neighborhood of the proposed development.
Facts in Support of Finding:
1. The Project has been designed to ensure that potential conflicts with surrounding
land uses are minimized to the extent possible to maintain a healthy environment
for both businesses and residents by providing an architecturally pleasing project
with articulation and building modulations to enhance the urban environment
consistent with development in Newport Center.
2. Emergency vehicles would stage along Anacapa Drive. The staging area will be
marked for exclusive use by the Fire Department.
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3. The proposed building has been designed to accommodate and provide access
for delivery trucks, moving trucks, and refuse collections vehicles, as determined
by the City Traffic Engineer. Delivery trucks will primarily utilize the guest entry off
of Anacapa Drive, while refuse collections vehicles will load trash via a scout truck
along the south driveway. The trash collectors may also roll out the trash
containers in lieu of a scout truck. Larger deliveries or moving vans may utilize the
on-site loading area near the parking garage entry. The Project includes the
provision of freight elevators to ensure that residents can safely move in and staff
can adequately service the building.
4. The size, design, location, and screening of the refuse enclosures will comply with
the requirements of NBMC Section 20.30.120 (Solid Waste & Recyclable Materials
Storage), ensuring compatibility with the on-site and adjacent uses.
5. The Project is forecasted to generate a maximum of 152 average daily trips, using
the Multifamily Housing (Mid -Rise) (3-10 floors) ITE land use (ITE 221). The
existing use generates 819 average daily trips and the proposed development
results in a reduction of average daily traffic trips pursuant to Chapter 15.40 (Traffic
Phasing Ordinance) of the NBMC ("TPO") methodology. Therefore, a traffic study
pursuant to the TPO is not required.
6. The Project is subject to the City's Outdoor Lighting requirements contained within
NBMC Section 20.30.070. A preliminary photometric plan has been provided and
a final photometric plan will be required as a condition of approval prior to building
permit issuance.
7. Mechanical equipment for each unit is fully enclosed within the parking garage or
within the roof -top equipment screen and is not visible from the public right-of-way.
8. The new construction would comply with all Building, Public Works, Fire Codes,
City ordinances, and all conditions of approval.
Section 3: The City Council of the City of Newport Beach hereby rescinds Use
Permit No. 1461, which upon vesting the rights authorized by this approval, shall become
null and void. In accordance with NBMC Section 20.68.050 (Review Authority's Action),
the following finding and fact in support of the revocation are set forth -
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Finding:
A. The permit or approval was issued in error or circumstances under which the
permit or approval was granted have been modified to an extent that one or more
of the findings that justified the original approval can no longer be made and the
public health, safety, and welfare require the revocation or modifications.
Fact in Support of Finding:
Approval of the Project would create a change in circumstances (General Plan
amendment to RM) under which the Property will no longer be improved with the
infrastructure to accommodate a car wash use as authorized under Use Permit No.
UP1461.
Section 4: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 5: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 6: The Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA,
the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-_, the
City Council, having final approval authority over the project, adopted and certified as
complete and adequate the Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and Reporting
Program." Resolution No. 2021-_, including all findings contained therein, is hereby
incorporated by reference
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Resolution No. 2021 -
Page 10 of 10
Section 7: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 28th day of September, 2021.
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron arp
City Att rney
Attachment(s):
Exhibit A — Legal Description
Exhibit B — Conditions of Approval
Brad Avery
Mayor
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Exhibit "A"
Legal Description
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No.
282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1,
Page 88 of Miscellaneous Record Maps, records of Orange County, California.
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Exhibit "B"
CONDITIONS OF APPROVAL
(Project Specific Conditions in Italics)
The development shall be in substantial conformance with the approved site plan,
floor plans and building elevations stamped and dated with the date of this approval
(except as modified by applicable conditions of approval).
2. Prior to mobilization, Snyder Langston shall prepare and submit a site-specific
safety plan to the Construction Superintendent and the Building Official.
3. Prior to issuance of final building permits, the Applicant shall record a deed
notification with the County Recorder's Office, approved as to form by the Office
of the City Attorney, consistent with NBMC Section 20.48.130. 1 (Deed Notification).
The Deed Notification shall state that residential units are located in a mixed-use
project or in a mixed-use zoning district and that an owner may be subject to
impacts, including inconvenience and discomfort, from lawful activities occurring
on the project or zoning district (e.g. noise, late night hours, live entertainment,
lighting, odors, high pedestrian activity levels, etc.). The Deed Notification shall
also state that the project is located across the street from businesses currently
operating as Muldoon's Irish Pub located at 202 Newport Center Drive, Red -O
Restaurant located at 143 Newport Center Drive, and Fig and Olive located at 151
Newport Center Drive, which feature open-air courtyards, live music, DJs, bands,
food service, special events, and guests using adjacent parking lots.
4. The deed notification language contained in Condition of Approval No. 3 shall be
copied into the CC&R's for the project.
5. Prior to building permit final, the Applicant shall prepare a written disclosure
statement. The written disclosure statement shall be provided to owners and
tenants prior to sale, lease, or rental of a residential unit in the proposed mixed-
use development consistent with Section 20.48.130.H (Notification to Owners and
Tenants) of the Municipal Code.
6. Prior to the issuance of building permits, fair share traffic fees (per City Ordinance
No. 94-19) shall be paid for the 28 dwelling units.
7. Prior to the issuance of building permits any Newport Mesa Unified School district
fees shall be paid for the project.
8. Prior to the issuance of building permits for any off-site improvements, property
owner authorization shall be required.
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9. Prior to the issuance of building permits, San Joaquin Hills Transportation Corridor
Agency Fees shall be paid for the 28 dwelling units.
10. Prior to the issuance of any building permits including demolition the mitigation
measures identified in the MMRP (Resolution No. 2021- shall be transcribed
onto the plans and implemented in accordance with the MMRP.
11. Disturbance to or removal of potential bird nesting habitat shall be prohibited during
the migratory bird nesting season (February 1 through August 31) unless a
migratory bird nesting survey is completed. if demolition and/or vegetation removal
is planned to occur during the migratory bird nesting season (February 1 through
August 31), then a migratory bird nesting survey shall be completed in accordance
with the following requirements.-
a.
equirements:a. Within three (3) days prior to initiating demolition, tree removals and/or
vegetation clearing, a nesting bird survey shall be conducted by a qualified
biologist within the suitable habitat to be removed and within a 250 -foot
radius.
b. If the survey reveals no active nesting, the proposed action may proceed.
c. If the survey identifies the presence of active sensitive bird nests, then the
nests shall not be disturbed unless the qualified biologist verifies through
non-invasive methods that either (i) the adult birds have not begun egg -
laying and incubation, or (ii) the juveniles from the occupied nests are
capable of independent survival.
d. If the biologist is not able to verify any of the conditions from sub -item "b,"
above, then no disturbance shall occur within a buffer zone specified by the
qualified biologist for each nest or nesting site. The buffer zone shall be
species -appropriate (no less than 100 -foot radius around the nest for non -
raptors and no more than a 500 -foot radius around the nest for raptors, or
as otherwise determined by the qualified biologist) and shall be sufficient to
protect the nest from direct and indirect impacts from construction activities.
The nests and buffer zones shall be field checked approximately weekly by
a qualified biological monitor. The approved buffer zone shall be marked in
the field with construction fencing, within which no vegetation clearing or
ground disturbance shall commence until the qualified biologist with City
concurrence verify that the nests are no longer occupied and/or juvenile
birds can survive independently from the nests.
12. The project is subject to all applicable City ordinances, policies, and standards,
unless specifically waived or modified by the conditions of approval.
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13. The applicant shall comply with all federal, state, and local laws. Material violation
of any of those laws in connection with the use may be cause for revocation of this
approval.
14. All proposed signs shall be in conformance with the approved Comprehensive Sign
Program for the project site and provisions of Chapter 20.42 (Signs) of the Newport
Beach Municipal Code.
15. Prior to the issuance of building permits, the applicant shall submit a landscape
and irrigation plan prepared by a licensed landscape architect. These plans shall
incorporate drought tolerant plantings and water efficient irrigation practices, and
the plans shall be approved by the Planning Division.
16. All landscape materials and irrigation systems shall be maintained in accordance
with the approved landscape plan. All landscaped areas shall be maintained in a
healthy and growing condition and shall receive regular pruning, fertilizing, mowing
and trimming. All landscaped areas shall be kept free of weeds and debris. All
irrigation systems shall be kept operable, including adjustments, replacements,
repairs, and cleaning as part of regular maintenance.
17. The site shall not be excessively illuminated based on the luminance
recommendations of the Illuminating Engineering Society of North America, or, if
in the opinion of the Director of Community Development, the illumination creates
an unacceptable negative impact on surrounding land uses or environmental
resources. The Director may order the dimming of light sources or other
remediation upon finding that the site is excessively illuminated.
18. Prior to the issuance of building permits, the applicant shall prepare a final
photometric study in conjunction with a final lighting plan for approval by the
Planning Division. The survey shall show that lighting values are "1" or less at all
property lines.
19. Prior to the issuance of building permits, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the
Planning Division.
20. All noise generated by the proposed use shall comply with the provisions of
Chapter 10.26 and other applicable noise control requirements of the Newport
Beach Municipal Code. The maximum noise shall be limited to no more than
depicted below for the specified time periods unless the ambient noise level is
higher:
Between the hours of 7:00AM
and 10:00PM
Between the hours of
10:00PM and 7:OOAM
Location Interior Exterior
Interior
Exterior
Residential Property 45dBA 55dBA
40dBA
5OdBA
Residential Pro a located within 45dBA 60dBA
45dBA
50dBA
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100 feet of a commercial property
Mixed Use Property 45dBA 60dBA 45dBA 50d BA
Commercial Property N/A 65dBA N/A 60dBA
21. Should the property be sold or otherwise come under different ownership, any
future owners or assignees shall be notified of the conditions of this approval by
either the current business owner, property owner or the leasing agent.
22. Construction activities shall comply with Section 10.28.040 of the Newport Beach
Municipal Code, which restricts hours of noise -generating construction activities
that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday
through Friday, and 8:00 a.m. and 6.00 p.m. on Saturday. Noise -generating
construction activities are not allowed on Sundays or Holidays.
23. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three walls and a self -latching gate) or otherwise screened from view
of neighboring properties, except when placed for pick-up by refuse collection
agencies.
24. Trash receptacles for patrons shall be conveniently located both inside and outside
of the establishment, however, not located on or within any public property or right-
of-way.
25. The applicant shall ensure that the trash dumpsters and/or receptacles are
maintained to control odors. This may include the provision of either fully self-
contained dumpsters or periodic steam cleaning of the dumpsters, if deemed
necessary by the Planning Division. Cleaning and maintenance of trash dumpsters
shall be done in compliance with the provisions of Title 14, including all future
amendments (including Water Quality related requirements).
26. Deliveries and refuse collection for the facility shall be prohibited between the
hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and between the
hours of 10:00 p.m. and 9:00 a.m. on Sundays and Federal holidays, unless
otherwise approved by the Director of Community Development, and may require
an amendment to this Use Permit.
27. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash container enclosure.
28. A Special Events Permit is required for any event or promotional activity outside
the normal operational characteristics of the approved use, as conditioned, or that
would attract large crowds, involve the sale of alcoholic beverages, include any
form of on-site media broadcast, or any other activities as specified in the Newport
Beach Municipal Code to require such permits.
29. This approval shall expire and become void unless exercised within 24 months from
the actual date of review authority approval, except as determined by the
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Development Agreement or where an extension of time is approved in compliance
with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal
Code.
30. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers,
employees, and agents from and against any and all claims, demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever which may arise
from or in any manner relate (directly or indirectly) to City's approval of the
Residences at Newport Center including, but not limited to, Environmental Impact
Report No. ER2021-002, General Plan Amendment No. GP2020-001, Zoning Code
Amendment No. CA2020-008, Planned Community Development Plan No. PC2020-
001, Major Site Development Review No. SD2020-001, Tentative Tract Map No.
NT2020-001 and rescission of Use Permit No. UP1461 (PA2020-020). This
indemnification shall include, but not be limited to, damages awarded against the
City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection
with such claim, action, causes of action, suit or proceeding whether incurred by
applicant, City, and/or the parties initiating or bringing such proceeding. The applicant
shall indemnify the City for all of City's costs, attorneys' fees, and damages which
City incurs in enforcing the indemnification provisions set forth in this condition. The
applicant shall pay to the City upon demand any amount owed to the City pursuant
to the indemnification requirements prescribed in this condition.
Fire Department
31. Fire Department access shall be maintained on Anacapa Drive and marked
exclusively for fire department use.
32. As per California Fire Code Section 507.5.1, a fire hydrant will be required within
400 feet of all portions of every structure. In addition, the number of fire hydrants
will also be determined by the required fire flow for each structure.
33. A fire flow is required and shall be determined per Newport Beach Fire Guideline
B.01 (CFC Section 507.5.1 & CFC Section 507.3).
34. The elevator car shall be of such a size and arrangement to accommodate a 24 -
inch by 84 -inch ambulance gurney or stretcher with not less than 5 -inch radius
comers in the horizontal open position, shall be provided with a minimum clear
distance between walls or between walls and door excluding return panels not less
than 80 inches by 54 inches and a minimum distance from wall to return panel not
less than 51 inches with a 42 -inch slide door. Califomia Building Code (CBC)
Section 3002.4.3a.
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35. A remote fill for the diesel generator (to refuel the generator) will be required. Per
CFC Section 5704.2.7.5.2, filling, emptying and vaporrecovery connection to tanks
containing Class 1, 11 or IIIA liquids shall be located outside of buildings in
accordance with Section 5704.2.7.5.6 at a location free from sources of ignition
and not less than 5 feet away from building openings or lot line of property that can
be built upon. Such openings shall be properly identified and provided with a liquid -
tight cap that shall be closed when not in use. Filling and emptying connections to
indoor tanks containing Class IIIB liquids and connected to fuel -burning equipment
shall be located at a finished ground level location outside of buildings. Such
openings shall be provided with a liquid -tight cap that shall be closed when not in
use. A sign, in accordance with Section 5003.6 that displays the following warning,
shall be permanently attached at the filling location: TRANSFERRING FUEL
OTHER THAN CLASS 111B COMBUSTIBLE LIQUID TO THIS TANK
CONNECTION IS A VIOLATION OF THE FIRE CODE AND IS STRICTLY
PROHIBITED
Building Division
36. Prior to plan check submittal for building permit purposes, the applicant shall submit
plans to the Building Division for a preliminary code review.
37. The applicant is required to obtain all applicable permits from the City's Building
Division and Fire Department. The construction plans must comply with the most
recent, City -adopted version of the California Building Code. The construction plans
must meet all applicable State Disabilities Access requirements.
38. The applicant shall employ the following best available control measures
("BACMs") to reduce construction -related air quality impacts:
Dust Control
• Water all active construction areas at least twice daily.
• Cover all haul trucks or maintain at least two feet of freeboard.
• Pave or apply water four times daily to all unpaved parking or staging
areas.
• Sweep or wash any site access points within two hours of any visible dirt
deposits on any public roadway.
• Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty
material.
• Suspend all operations on any unpaved surface if winds exceed 25 mph.
Emissions
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• Require 90 -day low-NOx tune-ups for off road equipment.
• Limit allowable idling to 30 minutes for trucks and heavy equipment
Off -Site Impacts
• Encourage carpooling for construction workers.
• Limit lane closures to off-peak travel periods.
• Park construction vehicles off traveled roadways.
• Wet down or cover dirt hauled off-site.
• Sweep access points daily.
• Encourage receipt of materials during non -peak traffic hours.
• Sandbag construction sites for erosion control.
Fill Placement
• The number and type of equipment for dirt pushing will be limited on any
day to ensure that SCAQMD significance thresholds are not exceeded.
• Maintain and utilize a continuous water application system during earth
placement and compaction to achieve a 10 percent soil moisture content in
the top six-inch surface layer, subject to review/discretion of the
geotechnical engineer.
39. Prior to the issuance of a grading permit, a Storm Water Pollution Prevention Plan
(SWPPP) and Notice of Intent (NOI) to comply with the General Permit for
Construction Activities shall be prepared, submitted to the State Water Quality
Control Board for approval and made part of the construction program. The project
applicant will provide the City with a copy of the NOI and their application check as
proof of filing with the State Water Quality Control Board. This plan will detail
measures and practices that will be in effect during construction to minimize the
project's impact on water quality.
40. Prior to the issuance of a grading permit, the applicant shall prepare and submit a
Water Quality Management Plan (WQMP) for the proposed project, subject to the
approval of the Building Division and Code and Water Quality Enforcement
Division. The WQMP shall provide appropriate Best Management Practices
(BMPs) to ensure that no violations of water quality standards or waste discharge
requirements occur.
41. A list of "good housekeeping" practices will be incorporated into the long-term post -
construction operation of the site to minimize the likelihood that pollutants will be
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used, stored or spilled on the site that could impair water quality. These may
include frequent parking area vacuum truck sweeping, removal of wastes or spills,
limited use of harmful fertilizers or pesticides, and the diversion of storm water
away from potential sources of pollution (e.g., trash receptacles and parking
structures). The Stage 2 WQMP shall list and describe all structural and non-
structural BMPs. In addition, the WQMP must also identify the entity responsible
for the long-term inspection, maintenance, and funding for all structural (and if
applicable Treatment Control) BMPs.
Utilities
44. Prior to the issuance of building permits, a final utilities plan shall be submitted and
approved by the Utilities Department.
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Attachment D
Resolution No. 2021-93 (TTM)
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RESOLUTION NO. 2021- 93
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
TENTATIVE TRACT MAP NO. NT2020-001 FOR THE
RESIDENCES AT NEWPORT CENTER LOCATED AT
150 NEWPORT CENTER DRIVE (PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, an application was filed by Newport Center Anacapa Associates, LLC
("Applicant"), with respect to property located at 150 Newport Center Drive and legally
described in Exhibit 'A," which is attached hereto and incorporated herein by reference
("Property");
WHEREAS, the Project includes the demolition of an existing 2,085 -square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals from the City:
• General Plan Amendment No. GP2020-001 —to change the Property's land use
designation from Regional Commercial Office (CO -R) to Multiple Residential
(RM) and create a new Anomaly Location for the Property that authorizes a
maximum development density of 28 dwelling units;
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
• Major Site Development Review No. SD2020-001 —to allow for the development
of a four-story structure containing 28 luxury condominium units and common
space areas over a two-level below -grade parking garage;
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Resolution No. 2021 -
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• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually;
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect at
the time of Project approval and to provide the City with assurance that certain
obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study and
Environmental Impact Report ("EIR") are warranted for this project pursuant to
California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines"),
and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Property is designated Regional Commercial Office (CO -R) by the
City of Newport Beach General Plan ("General Plan") Land Use Element and is located
within the Office Regional (OR) Zoning District,
WHEREAS, the Property is not located within the coastal zone,
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning
Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures), and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
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Resolution No. 2021 -
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WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with the Ralph M. Brown Act
and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56
(Planned Community District Procedures), and 20.62 (Public Hearings) of the Newport
Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to, and
considered by, the City Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council does hereby approve Tentative Tract Map No.
NT2020-001, which is attached hereto as Exhibit "B," subject to the conditions of approval
set forth in Exhibit "C." Both exhibits are incorporated herein by reference.
In accordance with NBMC Section 19.12.070 (Required Findings for Action on
Tentative Maps), approval of Tentative Tract Map No. NT2020-001 is supported by the
findings and facts set forth below.
Finding:
A. That the proposed map and the design or improvements of the subdivision are
consistent with the General Plan and any applicable specific plan, and with the
applicable provisions of the Subdivision Map Act and the City Subdivision Code.
Facts in Support of Finding:
1. Upon approval of General Plan Amendment No. GP2020-001 and Zoning Code
Amendment No. CA2020-008, the Project will be consistent with the General Plan
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Resolution No. 2021 -
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and Zoning designations. Therefore, approval of Tentative Tract Map No. NT2020-
001 is contingent upon approval of the aforementioned amendments.
2. Tentative Tract Map No. NT2020-001 provides a cohesive development with a
pattern of dwelling unit orientations and vehicle circulation that provides a
pedestrian -friendly environment with strong connectivity to adjacent commercial
and office areas.
3. The Public Works Department has reviewed the proposed tentative map and found
it consistent with Title 19 (Subdivisions) of the NBMC and applicable requirements
of the Subdivision Map Act as set forth in California Government Code Section
66410 et seq.
4. Conditions of approval have been included to ensure compliance with Title 19
(Subdivisions) of the NBMC.
Finding:
B. That the site is physically suitable for the type and density of development.
Facts in Support of Finding:
1. The Property has a gentle sloping condition and the building design
accommodates this slope with a podium wall at the south and west edge and larger
building setbacks above the podium. The Property is not located in a flood zone.
The geotechnical feasibility study and geotechnical report will provide additional
recommendations for construction of the Project to ensure the suitability for the
proposed development that will be required for construction prior to the issuance
of building permits.
2. The 1.26 -acre site is large enough to accommodate 28 units while providing
sufficient landscape setbacks, open space areas, as well as vehicle access and
guest parking areas that meet applicable standards. The existing developed site is
devoid of natural resources and it is located in an area that provides adequate
access to roadways and utilities.
3. The General Plan estimates that future traffic noise exposure will be 65 dB CNEL
to the nearest residential facades on Newport Center Drive and identifies that
residential uses are normally compatible or compatible with noise insulation
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Resolution No. 2021 -
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features included in the design. With appropriate noise control measures under
conventional construction and design of the Project (e.g., closed windows, fresh
air supply systems or air conditioning), the interior noise levels comply with the City
and State interior noise standard of 45 dB CNEL for residential units.
Finding:
C. That the design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage nor substantially and avoidably injure fish or
wildlife or their habitat. However, notwithstanding the foregoing, the decision-making
body may nevertheless approve such a subdivision if an environmental impact report
was prepared for the project and a finding was made pursuant to Section 21081 of the
California Environmental Quality Act that specific economic, social, or other
considerations make infeasible the mitigation measures or project alternatives
identified in the environmental impact report.
Facts in Support of Finding:
1. Environmental Impact Report No. ER2021-002 (SCH No. 2020110087) was
prepared for the Project. On the basis of the entire environmental review record,
the Project will have a less than significant impact upon the environment with the
incorporation of mitigation measures for biological resources, cultural resources,
geology and soils, and tribal cultural resources. The mitigation measures identified
in the Draft Environmental Impact Report ("DEIR") are feasible and reduce
potential environmental impacts to a less than significant level. The mitigation
measures are applicable to the project through the Mitigation Monitoring and
Reporting Program ("MMRP").
2. Under existing conditions, the Property and surrounding land areas are fully
developed with urban uses and do not contain sensitive biological resources. The
vegetation that occurs on-site is ornamental in nature, including trees and
ornamental shrubs, groundcover, and vines growing on the existing building's
facades and screen walls. A Mitigation Measure is provided in the MMRP to ensure
adequate protection of nesting birds during the construction process.
3. No drainages traverse the Property and no potential jurisdictional waters or
wetlands areas are present on or immediately adjacent to the Property.
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Finding:
D. That the design of the subdivision or the type of improvements is not likely to cause
serious public health problems.
Facts in Support of Finding:
1. At full build -out, air quality and Green House Gas ("GHG") emissions associated
with construction of the Project will be less than significant, as documented in the
DEIR.
2. Mitigation measures identified in the DEIR reduce potential impacts associated
with biological resources, cultural resources, geology and soils, and tribal cultural
resources to a level that is less than significant.
3. No evidence is known to exist that would indicate that the planned subdivision
pattern will generate any serious public health problems.
4. Through the building permit process, all plans for construction of the Project will
be reviewed and approved in compliance with Building, Public Works, and Fire
Codes. Public improvements will be required of the developer per NBMC Section
19.28.010 and Sections 66410 et seq. of the California Government Code
("Subdivision Map Act'). All ordinances of the City and all conditions of approval
will be complied with.
Finding:
E. That the design of the subdivision or the type of improvements will not conflict with
easements, acquired by the public at large, for access through or use of, property
within the proposed subdivision. In this connection, the decision-making body may
approve a map if it finds that alternate easements, for access or for use, will be
provided and that these easements will be substantially equivalent to ones
previously acquired by the public. This finding shall apply only to easements of
record or to easements established by judgment of a court of competent
jurisdiction and no authority is hereby granted to the City Council to determine that
the public at large has acquired easements for access through or use of property
within a subdivision.
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Facts in Support of Finding:
1. Public improvements, consisting of the reconstruction of the curb, gutter, and
sidewalks, two new driveways along the Anacapa Drive frontage, and street trees
along Anacapa Drive will be required of the applicant per Title 19 (Subdivisions)
and the Subdivision Map Act. A common sewer and water connection will be
provided for the Project as approved by the Public Works Department that will
connect to an existing main in Anacapa Drive.
2. Tentative Tract Map No. NT2020-001, once constructed, will reduce the width of
the existing 18 -foot -wide private walkway easement at the south edge of the site
to 10 feet in width to accommodate the location of new structures as part of the
development. Pedestrian access would continue to be provided via a sidewalk
along the front of the parking structure within the private easement. The design of
the development will not conflict with any easements acquired by the public at large
for access through or use of property within the proposed development.
3. Tentative Tract Map No. NT2020-001 will maintain the existing 3 -foot -wide public
sidewalk easement at the east edge of the site along Anacapa Drive. An
encroachment permit and agreement shall be required for the proposed low stone
signage wall located within the sidewalk easement. The Project includes the
reconstruction of the existing 6 foot wide sidewalk.
Finding:
F. That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map
Act, if the land is subject to a contract entered into pursuant to the California Land
Conservation Act of 1965 (Williamson Act), the resulting parcels following a
subdivision of the land would not be too small to sustain their agricultural use or
the subdivision will result in residential development incidental to the commercial
agricultural use of the land.
Fact in Support of Finding:
The Property does not contain prime farmland, unique farmland, or farmland of statewide
importance and no portion of the Property is covered by a Williamson Act contract.
16-144
Resolution No. 2021 -
Page 8 of 11
Finding:
G. That, in the case of a "land project" as defined in Section 11000.5 of the California
Business and Professions Code: (a) there is an adopted specific plan for the area
to be included within the land project, and (b) the decision-making body finds that
the proposed land project is consistent with the specific plan for the area.
Fact in Support of Finding:
California Business and Professions Code Section 11000.5 has been repealed by the
Legislature. However, this Property is not considered a "land project" as previously
defined in Section 11000.5 of the California Business and Professions Code because the
Property does not contain 50 or more parcels of land nor is it located within the boundaries
of a specific plan.
Finding:
H. That solar access and passive heating and cooling design requirements have been
satisfied in accordance with Sections 664 73. 1 and 66475.3 of the Subdivision Map
Act.
Fact in Support of Findinq:
Tentative Tract Map No. NT2020-001 and improvements are subject to Title 24 of the
California Code of Regulations, referred to as the California Building Code or CBC, which
requires new construction to meet minimum heating and cooling efficiency standards
depending on location and climate. The Newport Beach Community Development
Department ensures compliance with the CBC through the plan check and inspection
process.
Finding:
That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act
and Section 65584 of the California Government Code regarding the City's share
of the regional housing need and that it balances the housing needs of the region
against the public service needs of the City's residents and available fiscal and
environmental resources.
16-145
Resolution No. 2021 -
Page 9 of 11
Fact in Support of Finding:
The Property is improved with commercial uses, and there are no residential units on the
Property. The Project includes the construction of 28 new condominium units to contribute
to the City's housing needs, and 28 units above what is planned for within the General
Plan. The Applicant will be responsible for the payment of appropriate fair share traffic
fees, San Joaquin Transportation Corridor fees, in -lieu park fees, and development
agreement fees for the construction of these new dwelling units as conditions of approval.
Public benefits provided through the development agreement include the payment of
$1,875,000 for any public purpose that the City determines to be in the public interest;
$325,000 for affordable housing; $150,000 to fund services for those experiencing
homelessness; and $150,000 to fund public safety
Finding:
J. That the discharge of waste from the proposed subdivision into the existing sewer
system will not result in a violation of existing requirements prescribed by the
Regional Water Quality Control Board.
Facts in Support of Finding:
1. A National Pollutant Discharge Elimination System ("NPDES") permit is required
from the Regional Water Quality Control Board ("RWQCB") for the proposed
construction activities. A permit is required for all construction activities that include
clearing, grading, and/or excavation that disturb at least 1 acre of total land area.
Additionally, a Preliminary Water Quality Management Plan ("WQMP") has been
prepared, pursuant to the requirements of the NPDES permit.
2. Compliance with the NPDES permit and the Santa Ana River Basin Water Quality
Control Program involves the preparation and implementation of a stormwater
pollution prevention plan ("SWPPP") for construction -related activities, which
would specify the Best Management Practices ("BMP") that the Project would be
required to implement during construction activities to ensure that all potential
pollutants of concern (including sediment) are prevented, minimized, and/or
otherwise appropriately treated prior to being discharged from the Property.
3. Sewer connections will be installed per City Standards, the applicable provisions
of NBMC Chapter 14.24 (Sewer Connection, Permits), and the latest revision of
the Uniform Plumbing Code.
16-146
Resolution No. 2021 -
Page 10 of 11
4. There is adequate sewer system capacity to serve the requirements of the Project.
The Project is able to tie into the existing sewer system without adversely affecting
the system, causing any water quality affects, or violating existing requirements
prescribed by the Regional Water Quality Control Board. Wastewater from the
Project will be generated by the residential users. There will be a reduction in
wastewater from the Property with the demolition of the existing car wash and
construction of the proposed dwelling units.
5. NBMC Section 14.24.020 (Dwelling Unit and Business Structure Sewer
Connection Required) requires each dwelling unit to maintain individual water
meter and sewer connections. The Project has received a waiver of this
requirement from the Utilities Director since the units are located in one (1) building
and will together connect to the existing water and sewer systems.
Finding:
K. For subdivisions lying partly or wholly within the Coastal Zone, that the subdivision
conforms with the certified Local Coastal Program and, where applicable, with
public access and recreation policies of Chapter Three of the Coastal Act.
Fact in Support of Finding:
The Property is not located within the Coastal Zone.
Section 3: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The Residences at Newport Center Final Environmental Impact Report
(SCH No. 2020110087) was prepared for the project in compliance with CEQA, the State
CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-_, the City
16-147
Resolution No. 2021 -
Page 11 of 11
Council, having final approval authority over the project, adopted and certified as
complete and adequate the Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and Reporting
Program." Resolution No. 2021-_, including all findings contained therein, is hereby
incorporated by reference.
Section 6: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 28th day of September, 2021.
Brad Avery
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaro . Harp
City A1worney
Attachment(s): Exhibit A — Legal Description
Exhibit B — Tentative Tract Map No. NT2020-001
Exhibit C -- Conditions of Approval
16-148
EXHIBIT "A"
LEGAL DESCRIPTION
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No.
282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1,
Page 88 of Miscellaneous Record Maps, records of Orange County, California.
16-149
EXHIBIT "B"
TENTATIVE TRACT MAP NO. NT2020-001
16-150
VESTING TENTATIVE TRACT MAP NO. 17915
FOR CONDOMINIUM PURPOSES
IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE
STATE OF CALIFORNIA
06/22/2021
ANACAPA DRIVE
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16-151
EXHIBIT "C"
CONDITIONS OF APPROVAL
(Project specific conditions are in italics)
1. Prior to recordation of the Tract Map, the draft CC&R's shall be provided to the
City's Planning Division for review and approval.
2. Prior to recordation of the Tract Map, park fees shall be paid for the 28 new dwelling
units in accordance with City Council Resolution No. 2020-95.
3. A Tract Map shall be recorded. The Map shall be prepared on the California
coordinate system (NAD83). Prior to recordation of the Map, the surveyor/engineer
preparing the Map shall submit to the County Surveyor and the City of Newport
Beach a digital -graphic file of said map in a manner described in Section 7-9-330
and 7-9-337 of the Orange County Subdivision Code and Orange County
Subdivision Manual, Subarticle 18. The Map to be submitted to the City of
Newport Beach shall comply with the City's CADD Standards. Scanned
images will not be accepted.
4. Prior to recordation of the tract map, the surveyor/engineer preparing the map shall
tie the boundary of the map into the Horizontal Control System established by the
County Surveyor in a manner described in Sections 7-9-330 and 7-9-337 of the
Orange County Subdivision Code and Orange County Subdivision Manual,
Subarticle 18. Monuments (one -inch iron pipe with tag) shall be set On Each Lot
Corner unless otherwise approved by the Subdivision Engineer. Monuments shall
be protected in place if installed prior to completion of construction project.
5. Prior to the final tract map approval, a subdivision agreement and bonds (labor and
material, performance and warranty) in the form and amount acceptable to the
Director of Public Works for the estimated improvement costs as prepared by a
Registered Civil Engineer shall be approved by the Director of Public Works.
6. The proposed driveways on Anacapa Drive shall be installed per City Standard STD -
160.
7. Driveway, garage ramp slopes and parking garage shall comply with City Standard
STD -167-8, STD -805.
8. Prior to the issuance of building permits, a final parking management and site
circulation plan for review and approval of the City Traffic Engineer and Community
Development Director. The narrative shall document the operation of the drop-off
area, parking area, gates, loading area and valet (if proposed).
1
16-152
9. Prior to the issuance of building permits, a final construction management plan shall
be reviewed and approved by the City Traffic Engineer and Community
Development Director.
10. Applicant shall reconstruct damaged/broken curb, gutter and sidewalk along the
Newport Center Drive and Anacapa Drive frontages. Extent to be determined by the
Public Works Director at the time of inspection.
11. Anacapa Drive is on the City's street -cut moratorium list. Trenching/damage to said
street as a part of this development will require extensive street repair work per City
Standard.
12. A corner -cut off at the corner of Anacapa Drive and the project driveway for sidewalk
purposes shall be dedicated to the City as depicted on the tentative tract map.
13. An encroachment permit and encroachment agreement shall be executed for the
proposed low stone signage wall located within the 3 -foot -wide pedestrian easement
along the Anacapa Drive frontage. The proposed low stone signage wall shall be
limited to 3 feet in height maximum measured from the adjacent sidewalk grade.
14. Prior to the issuance of building permits, the median design, stop sign installations,
and storm drain improvements on the Gateway Plaza entry at the southerly project
driveway shall be reviewed and approved by The Irvine Company and the City.
15. The proposed removal of the existing City street trees and proposed installation of
new City street trees shall be subject to review and approval of the City Arborist,
including species and location.
16. After construction of the project is complete, the maximum size moving truck/delivery
vehicle that the site can accommodate is a 30 -foot single unit truck. Trucks longer
than 30 feet shall be prohibited from using the Loading/Receiving area.
17. Prior to the issuance of building permits, a final utilities plan shall be submitted and
approved by the Utilities Department.
18. Should reclaimed water infrastructure be constructed along Newport Center Drive,
the site's existing potable irrigation system shall be converted and connected to
reclaimed water infrastructure within one year of its availability.
19. The project is subject to all applicable City ordinances, policies, and standards,
unless specifically waived or modified by the conditions of approval.
20. The applicant shall comply with all federal, state, and local laws. Material violation
of any of those laws in connection with the use may be cause for revocation of this
approval.
7
16-153
21. This approval shall expire and become void unless exercised within 24 months from
the actual date of review authority approval, except as determined by the Development
Agreement or where an extension of time is approved in compliance with the provisions
of Title 20 Planning and Zoning of the Newport Beach Municipal Code.
3
16-154
Attachment E
Ordinance No. 2021-19 (DA)
16-155
ORDINANCE NO. 2021-19
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. DA2020-001 FOR THE
RESIDENCES AT NEWPORT CENTER LOCATED AT 150
NEWPORT CENTER DRIVE (PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers, and privileges, or procedures granted or prescribed by any
law of the State of California;
WHEREAS, an application was filed by Newport Center Anacapa Associates,
LLC ("Applicant"), with respect to property located at 150 Newport Center Drive and
legally described in Exhibit "A," which is attached hereto and incorporated herein by
reference ("Property");
WHEREAS, the project includes the demolition of an existing 2,085 -square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals from the City:
• General Plan Amendment No. GP2020-001 — to change the Property's land
use designation from Regional Commercial Office (CO -R) to Multiple
Residential (RM) and create a new Anomaly Location for the Property that
authorizes a maximum development density of 28 dwelling units;
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
• Major Site Development Review No. SD2020-001 — to allow for the
development of a four-story structure containing 28 luxury condominium units
and common space areas over a two-level below -grade parking garage;
16-156
Ordinance No. 2021 -
Page 2 of 5
• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually,
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect
at the time of Project approval and to provide the City with assurance that
certain obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study
and Environmental Impact Report ("EIR") are warranted for the Project pursuant
to California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA
Guidelines"), and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Property is designated Regional Commercial Office (CO -R) by
the City of Newport Beach General Plan ("General Plan") Land Use Element and is
located within the Office Regional (OR) Zoning District;
WHEREAS, the Property is not located within the coastal zone;
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the
Planning Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures) and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
16-157
Ordinance No. 2021 -
Page 3 of 5
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with the Ralph M. Brown Act
and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56
(Planned Community District Procedures) and 20.62 (Public Hearings) of the Newport
Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to,
and considered by, the City Council at this public hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby approves
Development Agreement No. DA2020-001, as set forth in Exhibit "B," which is attached
hereto and incorporated herein by reference.
Development Agreement No. DA2020-001 satisfies the requirements of Chapter
15.45 (Development Agreements) of the NBMC as provided hereafter:
1. A voluntary development agreement has been requested by the Applicant as
the Project would add new residential dwelling units within Statistical Area L1
(Newport Center). The development agreement includes all the mandatory
elements, including a term of 10 years, and public benefits that are
appropriate to support conveying the vested development rights consistent
with the General Plan, NBMC, and California Government Code Sections
65864 et seq.
2. Public benefits include the payment of $1,875,000 for any public purpose that
the City determines to be in the public interest; $325,000 for affordable
housing; $150,000 to fund services for those experiencing homelessness;
and $150,000 to fund public safety.
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Ordinance No. 2021 -
Page 4 of 5
3. With the adoption of Resolution No. 2021- approving General Plan
Amendment No. GP2020-001 changing the General Plan land use
designation of 150 Newport Center Drive from CO -R (Regional Commercial
Office) to RM (Multiple Residential), revising the existing Anomaly 35 and
establishing a new anomaly (Table LU2 Anomaly Locations) designation for a
maximum development intensity of 28 dwelling units, the Project is consistent
with the General Plan.
4. Additionally, with the adoption of Ordinance No. 2021- changing the
Zoning District designation from OR (Office Regional) to PC - 61 (Residences
at Newport Center) over the entire site, the Project is consistent with the
Zoning Code.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA,
the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-_,
the City Council, having final approval authority over the project, adopted and certified
as complete and adequate the Residences at Newport Center Final Environmental
Impact Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and
Reporting Program." Resolution No. 2021-_, including all findings contained therein, is
hereby incorporated by reference.
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
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Ordinance No. 2021 -
Page 5 of 5
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 28th day of September, 2021, and adopted on the 12th
day of October, 2021, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
BRAD AVERY, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
-]A e"_ f.
AARON C. HARP, ITY ATTORNEY
Attachment(s)- Exhibit A - Legal Description
Exhibit B - Development Agreement
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Exhibit "A"
Legal Description
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision
No. 282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book
1, Page 88 of Miscellaneous Record Maps, records of Orange County, California.
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Exhibit `B"
Development Agreement
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT NO. DA2020-001
between
CITY OF NEWPORT BEACH
and
NEWPORT CENTER ANACAPA ASSOCIATES, LLC,
a California limited liability company
CONCERNING 150 NEWPORT CENTER
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DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference
purposes as of the day of , 2021, and is being entered into by and
between the CITY OF NEWPORT BEACH ("City") a California municipal corporation and
charter city, organized and existing under and by virtue of its Charter and the Constitution, and
the laws of the State of California, and NEWPORT CENTER ANACAPA ASSOCIATES, LLC,
a California limited liability company ("Developer"). City and Developer are sometimes
collectively referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. As of the "Agreement Date" (defined below) Developer holds fee title to that
certain real property located in the City of Newport Beach, County of Orange, State of California
commonly referred to as 150 Newport Center, located at 150 Newport Center Drive, Newport
Beach, California 92660-6906 (APN # 442-231-12), bounded by Newport Center Drive on the
north, Anacapa Drive on the east, the existing Gateway Plaza office complex on the south, and a
parking lot that services the existing Corporate Plaza office park on the west (the "Pro e ").
Accordingly, Developer has an equitable interest in the Property, and City and Developer are
authorized to enter into this Agreement pursuant to Government Code Section 65865(a) and
Newport Beach Municipal Code Chapter 15.45. The Property is more particularly described in
the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto
as Exhibit B.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 3 of this Agreement and the Development Plans (as defined
herein), and in consideration of the significant benefits outlined in this Agreement, Developer
has agreed to pay a public benefit fee to City in the sum of Two Million Five Hundred Thousand
Dollars and 00/100 ($2,500,000.00), including an annual adjustment to the public benefit fee
based on the Consumer Price Index ("CPI"). City has determined that Developer's payment of
this public benefit fee provides a significant public benefit to City and constitutes adequate
consideration for City's entering into and performing its obligations set forth in this Agreement.
112'066751.0108
9650722.2 a07/14!21 -1-
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Developer shall pay the Public Benefit Fee to the City at the time of the City's issuance of the
first building permit for the Project (as defined herein).
E. The following land use entitlements for the "Project" as detailed herein are being
adopted and approved by the City Council concurrently with its approval of this Agreement:
General Plan Amendment No. GP2020-001 proposes to change the existing land use
designation for the Property from "Regional Commercial Office (CO -R)" to "Multiple
Residential (RM)" And create a new Anomaly Location that authorizes a maximum
density of 28 units.
Zoning Code Amendment No. CA2020-008 proposes to change the zoning designations
for the Property from Office Regional Commercial (OR) to Planned Community (PC)
District over the Property.
Planned Community Development Plan No. PC2020-001 proposes a new Planned
Community to establish land uses and development standards for the Project site. In
order to establish a planned community development plan, a waiver of the minimum site
area of 10 acres of developed land is necessary.
Major Site Development Review No. SD2020-001 proposes to allow for the
development of a four-story structure containing 28 condominium units and common
space areas over a two-level below -grade parking garage.
Tentative Tract Map No. NT2020-001 proposes to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Project site that would allow each unit to
be sold individually.
Development Agreement No. DA2020-001 proposes to provide the Applicant with the
assurance that the development of the Project may proceed subject to the rules and
regulations in effect at the time of Project approval and to provide the City with
assurance that certain obligations of the Applicant will be met.
Final Environmental Impact Report No. ER2021-002 (SCH No. 2020110087)
proposes to address reasonably foreseeable environmental impacts resulting from the
legislative and project specific discretionary approvals and, also, including the Mitigation
Monitoring and Reporting Program prepared and approved in conjunction therewith.
Use Permit No. UP1461 Revocation.
F. This Agreement is consistent with the City of Newport Beach General Plan, as
amended by the City Council prior to or concurrently with its approval of this Agreement in
order to establish appropriate zoning to regulate land use and development of the Property
consistent with the General Plan.
G. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan; (ii) is in the best interests of the health, safety, and general welfare of City, its
residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of,
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City's police power; (iv) is consistent with the provisions of the California Environmental
Quality Act ("CEQA"), including all criteria, standards and procedures of CEQA and the CEQA
Guidelines requiring the preparation of an Initial Study and the Environmental Impact Report
(SCH No. 2020 1 1 0087) ("EIR"), all of which analyze the environmental effects of the proposed
development of the Project on the Property, and all of the findings, conditions of approval and
mitigation measures related thereto; and (v) has been approved consistent with provisions of
California Government Code section 65867 and City of Newport Beach Municipal Code Chapter
15.45.
H. On August 19, 2021, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
I. On September 28, 2021, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On October 12
2021, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. (the
"Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach
General Plan in approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement No. DA2020-001, as the same
may be amended from time to time.
"Agreement Date" shall mean the date first written above which date is the date the City
Council adopted the Adopting Ordinance.
"CEQA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Division 6,
Chapter 3, Section 15000 et seq. ), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California municipal corporation and
charter city, and any successor or assignee of the rights and obligations of the City of Newport
Beach hereunder.
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"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Developer" shall mean Newport Center Anacapa Associates, LLC, a California limited
liability company, and any successor or assignee to all or any portion of the right, title, and/or
interest of Newport Center Anacapa Associates, LLC, in and to ownership of all or a portion of
the Property and/or the Project.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) General Plan Amendment No. GP2020-001; (3) Zoning
Code Amendment No. CA2020-008; (4) Planned Community Development Plan No. PC2020-
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001; (5) Major Site Development Review No. SD2020-001; (6) Tentative Tract Map
No. NT2020-001; (7) Final Environmental Impact Report No. ER2021-002 for the Project,
including the Mitigation Monitoring and Reporting Program approved in conjunction therewith;
(8) Use Permit No. UP1461 Revocation; and (9) all conditions of approval and all mitigation
measures approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that affects the Development of the Property,
unless such amendment or modification is expressly authorized by this Agreement or is agreed to
by Developer in writing: the General Plan; the Development Plan; and, to the extent not
expressly superseded by the Development Plan or this Agreement, all other land use and
subdivision regulations governing the permitted uses, density and intensity of use, design,
improvement, and construction standards and specifications, procedures for obtaining required
City permits and approvals for development, and similar matters that may apply to the
Development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning
and density bonus), but specifically excluding all other sections of the Municipal Code, including
without limitation Title 5 of the Municipal Code (business licenses and regulations).
Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not
include any City ordinance, resolution, code, rule, regulation or official policy governing any of
the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and
assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment
permits and the conveyance of rights and interests which provide for the use of or the entry upon
public property; or (v) the exercise of the power of eminent domain.
"Effective Date" shall mean the latest of all of the following occurring, as applicable: (i)
the date that is thirty (30) calendars days after the Agreement Date; (ii) if a referendum
concerning the Adopting Ordinance, the Development Plan, or any of the Development
Regulations approved on or before the Agreement Date is timely qualified for the ballot and a
referendum election is held concerning the Adopting Ordinance or any of such Development
Regulations, the date on which the referendum is certified resulting in upholding and approving
the Adopting Ordinance and the Development Regulations; or (iii) if a lawsuit is timely filed
challenging the validity or legality of the Adopting Ordinance, this Agreement, the Development
Plan, and/or any of the Development Regulations approved on or before the Agreement Date, the
date on which said challenge is finally resolved in favor of the validity or legality of the
Adopting Ordinance, this Agreement, the Development Plan, and/or the applicable Development
Regulations, whether such finality is achieved by a final non -appealable judgment, voluntary or
involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal),
or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties
agree to cooperate in causing an appropriate instrument to be executed and recorded against the
Property memorializing the Effective Date. Notwithstanding any other provision set forth in this
Agreement to the contrary, however, in the event that for any reason the Effective Date does not
occur on or before the third (3`d) anniversary of the date on which the City Council adopts the
Adopting Ordinance then City shall have the right, exercisable in its sole and absolute discretion,
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to rescind the Adopting Ordinance and terminate this Agreement, and in such event neither Party
shall have any additional rights or obligations hereunder after the effective date of such action(s).
"EIR" shall mean Final Environmental Impact Report No. ER2021-002 (SCH No.
2020110087) (including the Mitigation Monitoring and Reporting Program) prepared for the
Project and certified as fully compliant with the CEQA and the CEQA Guidelines by the City
Council.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et seq., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et s�Mc., as amended
("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seg., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec,., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seg., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seg., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seg., as amended; and California Health and Safety
Code Section 25100, et M.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, and any amendments to the 2006 General Plan that
became effective before the Effective Date. The term "General Plan" shall exclude any
amendments that became effective after the Effective Date unless such amendment is expressly
authorized by this Agreement, or is specifically agreed to by Developer. The Land Use Plan of
the Land Use Element of the General Plan was approved by City voters in a general election on
November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortane" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
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"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Developer or both, as determined by the
context.
"Project" shall mean all on-site and off-site improvements, as provided in this Agreement
and the Development Regulations, as the same may be modified or amended from time to time
consistent with this Agreement and applicable law.
"Property" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Developer Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i) that Developer is the fee simple title to the
Property; (ii) if Developer or any co-owner comprising Developer is a legal entity that such
entity is duly formed and existing and is authorized to do business in the State of California; (iii)
if Developer or any co-owner comprising Developer is a natural person that such natural person
has the legal right and capacity to execute this Agreement; (iv) that all actions required to be
taken by all persons and entities comprising Developer to enter into this Agreement have been
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taken and that Developer has the legal authority to enter into this Agreement; (v) that
Developer's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Developer or any person or
entity comprising Developer has to any third party; and (vi) that neither Developer nor any co-
owner comprising Developer is the subject of any voluntary or involuntary bankruptcy or
insolvency petition; and (vii) that Developer has no actual knowledge of any pending or
threatened claims of any person or entity affecting the validity of any of the representations and
warranties set forth in clauses (i) -(vi), inclusive, or affecting Developer's authority or ability to
enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement ("Term") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if any
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non -appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and/or any of such Development Regulations is/are invalid and unenforceable in whole or in
such a substantial part that the judgment substantially impairs such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terminate this Agreement upon delivery of a written notice of
termination to the other Party, in which event neither Party shall have any further rights or
obligations hereunder except that Developer's indemnity obligations set forth in Article 10 shall
remain in full force and effect and shall be enforceable, and the Development Regulations
applicable to the Project and the Property only (but not those general Development Regulations
applicable to other properties in the City) shall similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1
and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in
accordance with the terms of this Agreement, including Developer's complete satisfaction,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
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3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Developer shall pay to City a fee that shall be in addition to any other fee or charge
to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee") in the sum of Eighty -Nine Thousand Two Hundred Eighty -Five Dollars and 71/100
($89,285.71) per residential dwelling unit developed as part of the Project for a total amount of
Two Million Five Hundred Thousand Dollars and 00/00 ($2,500,000.00). Developer shall pay
the Public Benefit Fee at the time the City issues the first building permit for the Development
Plan. The amount of the Public Benefit Fee shall be increased based upon percentage increases
in the CPI Index. The first CPI adjustment to the Public Benefit Fee shall occur on the third
anniversary of the Agreement Date (the first "Adjustment Date") and subsequent CPI
adjustments shall occur on each anniversary of the first Adjustment Date thereafter until
expiration of the Term of this Agreement (each, an "Adjustment Date"). The amount of the CPI
adjustment on the first Adjustment Date shall be the percentage increase in the CPI Index
between the second anniversary of the Agreement Date and the third anniversary of the
Agreement Date. The amount of the CPI adjustment on each subsequent Adjustment Date shall
be the percentage increase between said Adjustment Date and the immediately preceding
Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable
Adjustment Dates shall in each instance be calculated based on the then most recently available
CPI Index figures such that, for example, if the first Adjustment Date occurs on September 1,
2019, and the most recently available CPI Index figure on that date is the CPI Index for July
2019 (2 months prior to the first Adjustment Date), the percentage increase in the CPI Index on
the first Adjustment Date shall be calculated by comparing the CPI Index for July 2018 with the
CPI Index for July 2019. In no event, however, shall application of the CPI Index on any
Adjustment Date reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below
the amount in effect prior to that Adjustment Date. Notwithstanding any other provision set
forth in this Agreement to the contrary, during the Term of this Agreement City shall not
increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1.
Developer acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit
Fee is an essential term of this Agreement and is not severable from City's obligations and
Developer's vesting rights to be acquired hereunder, and that Developer expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government
Code Section 66000 et seg.), or otherwise. In addition to any other remedy set forth in this
Agreement for Developer's Default, if Developer, including any Permitted Transferee, shall fail
to timely pay any portion of the Public Benefit Fee when due City shall have the right to (i)
withhold issuance of the occupancy permit and any other building, inspection, or development
permit or approval for the unit(s) for which the Public Benefit Fee remains unpaid or (ii)
withhold issuance of building, occupancy, and other building or development permits for any
other portion of the Project that at that time is under common ownership with Developer or
Permitted Transferee, as applicable.
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City shall have the right to spend One Million Eight Hundred Seventy -Five Thousand
Dollars and 00/100 ($1,875,000.00) of the total Public Benefit Fee on any public purpose that
City determines to be in the public interest, as designated by City in its sole and absolute
discretion. The City will use the remainder of the Public Benefit Fee, in its discretion as follows:
Three Hundred Twenty -Five Thousand Dollars and 00/100) ($325,000.00) of the Public Benefit
Fee for affordable housing, One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) to
fund services for those experiencing homelessness, and One Hundred Fifty Thousand Dollars
and 00/100 ($150,000.00) to fund public safety.
The Public Benefit Fee is not intended to constitute a Development Exaction, is in
addition to the Development Exactions applicable to the Project, and is not subject to restrictions
on the use of various forms of Development Exactions.
4. Development of Project.
4.1 Applicable Regulations, Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Developer shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict the City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion
to the same extent City would have such discretion in the absence of this Agreement. In
addition, it is understood and agreed that nothing in this Agreement is intended to vest
Developer's rights with respect to any laws, regulations, rules, or official policies of any other
governmental agency or public utility company with jurisdiction over the Property or the Project;
or any applicable federal or state laws, regulations, rules, or official policies that may be
inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the
Agreement Date.
Developer has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Developer represents and City
acknowledges that Developer would not make these expenditures without this Agreement, and
that Developer is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
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Developer may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
Developer may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code Section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Developer
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Developer's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
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4.3.2 Processing and Permit Fees. City shall have the right to charge and
Developer shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
Developer and the Project in the absence of this Agreement. In addition, nothing in this
Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of
the following (which are not included within the definition of "Development Exactions") in the
full amount that would apply in the absence of this Agreement: (i) City's normal fees for
processing, environmental assessment and review, tentative tract and parcel map review, plan
checking, site review and approval, administrative review, building permit, grading permit,
inspection, and similar fees imposed to recover City's costs associated with processing,
reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges
levied by any other public agency, utility, district, or joint powers authority, regardless of
whether City collects those fees and charges; or (iii) community facility district special taxes or
special district assessments or similar assessments, business license fees, bonds or other security
required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer
lateral connection fees, water service connection fees, new water meter fees, and the Property
Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Developer does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Developer shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of
Developer as derived from this Agreement to the maximum feasible extent while resolving the
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conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a
manner which minimizes any financial impact of the conflict upon Developer. City also agrees
to process in a prompt manner Developer's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with such overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Developer's vested
rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Developer constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Mans
City agrees that Developer may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code sections 66498.1-66498.9 and City
of Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
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Amendment or Cancellation of Agreement.
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of Developer.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
7. Annual Review of Developer's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Developer (including any successor to the owner executing this
Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in
an amount City may reasonably establish from time to time to cover the actual and necessary
costs for the annual review. City's failure to timely provide or conduct an annual review shall
not constitute a Default hereunder by City.
7.2 Developer Obligation to Demonstrate Good Faith Compliance
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30)
calendar days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on
the basis of substantial evidence, whether or not Developer has, for the period under review,
complied with the terms of this Agreement. If the Zoning Administrator finds that Developer
has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the
basis of substantial evidence, that Developer has not so complied, written notice shall be sent to
Developer by first class mail of the Zoning Administrator's finding of non-compliance, and
Developer shall be given at least ten (10) calendar days to cure any noncompliance that relates to
the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If
a cure not relating to the payment of money cannot be completed within thirty (30) calendar days
for reasons which are beyond the control of Developer, Developer must commence the cure
within such thirty (30) calendar days and diligently pursue such cure to completion. If
Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall
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be considered to be a Default and City shall be entitled to exercise the remedies set forth in
Article 8 below.
7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of
Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged
Default and a reasonable manner and sufficient period of time (twenty (20) calendar days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be
cured (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in
Default for the purposes of termination of this Agreement or institution of legal proceedings. If
the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed
not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise
of commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) calendar days after it receives the
Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the
foregoing, the City is not required to give Developer notice of default and may immediately
pursue remedies for a Developer Default that result in an immediate threat to public health,
safety or welfare.
8.2 Default by Developer.
If Developer is alleged to have committed a Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10)
calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the
next available City Council meeting to consider Developer's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) calendar day period
shall waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of
Default is timely and in good faith but after a public hearing of Developer's appeal the City
Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual
date for commencement of the thirty (30) calendar day Cure Period provided in Section 8.1 shall
be extended until the City Council's denial of Developer's appeal is communicated to Developer
in writing.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Developer with the opportunity
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to cure the Default within the Cure Period, as provided in Section 8.1, and complying with
Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement
by City shall be valid only if good cause exists and is supported by evidence presented to the
City Council at or in connection with a duly noticed public hearing to establish the existence of a
Default. The validity of any termination may be judicially challenged by Developer. Any such
judicial challenge must be brought within ninety (90) calendar days of service on Developer, by
first class mail, postage prepaid, of written notice of termination by City or a written notice of
City's determination of an appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Developer alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Developer may pursue any equitable remedy available to it under this
Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or
specific performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Developer's performance hereunder shall neither be a Developer Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
Developer's option (and provided Developer delivers written notice to City within thirty (30)
calendar days of the commencement of the alleged City Default), extend the Term for a period
equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre-existing condition once implementation of this Agreement has
begun. After such implementation, both Developer and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Developer and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Developer or City for such
efforts. For the above reasons, City and Developer agree that damages would not be an adequate
remedy if either City or Developer fails to carry out its obligations under this Agreement.
Therefore, specific performance of this Agreement is necessary to compensate Developer if City
fails to carry out its obligations under this Agreement or to compensate City if Developer falls to
carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or
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shall be interpreted to limit or restrict 'Developer's indemnity obligations set forth in Article 10
or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10. In no event shall damages be awarded against the City upon an event of default or
upon termination of this Agreement. Developer expressly agrees that the City, any City agencies
and their respective elected and appointed councils, boards, commissions, officers, agents,
employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City")
shall not be liable for any monetary damage for a Default by the City or any claims against City
arising out of this Agreement. Developer hereby expressly waives any such monetary damages
against the City. The sole and exclusive judicial remedy for Developer in the event of a Default
by the City shall be an action in mandamus, specific performance, or other injunctive or
declaratory relief.
8.8 Additional City Remedy for Developer's Default.
In the event of any Default by Developer, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 No Recovery of Legal Expenses by Prevailing Paqy in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall not recover any of its costs and expenses, regardless of whether they
would be recoverable under California Code of Civil Procedure section 1033.5 or California
Civil Code section 1717 in the absence of this Agreement. These costs and expenses include, but
are not limited to, court costs, expert witness fees, attorneys' fees, and costs of investigation and
preparation before initiation of the Action.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
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10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or gross active negligence of
City or one or more of City's officials, employees, agents, attorneys, and contractors
(collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold
harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses,
damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys'
fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts,
omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents,
or employees in the course of Development of the Project or any other activities of Developer
relating to the Property or Project or pursuant to this Agreement. City shall have the right to
select and retain separate counsel to represent City against the Claim and the City's defense costs
for its separate counsel shall be included in Developer's indemnity obligation, provided that such
counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation
expenses incurred by Developer. In the event either City or Developer recovers any attorney's
fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the
Claim, Developer shall be entitled to retain the same (provided it has fully performed its
indemnity obligations hereunder). The indemnity provisions in this Section 10.1 shall
commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall
survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Developer shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Plan approvals for
the Project (including without limitation any actions taken pursuant to CEQA with respect
thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees, City staff costs (including overhead), and court costs. City shall
promptly notify Developer of any such Claim and City shall cooperate with Developer in the
defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City
harmless from such Claim until Developer is so notified and if City fails to cooperate in the
defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless
City during the period that City so fails to cooperate or for any losses attributable thereto. City
shall be entitled to retain separate counsel to represent City against the Claim and the City's
reasonable defense costs for its separate counsel shall be included in Developer's indemnity
obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to
minimize the total litigation expenses incurred by Developer. In the event either City or
Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts
from the party or parties asserting the Claim, Developer shall be entitled to retain the same
(provided it has fully performed its indemnity obligations hereunder). No settlement of any
Claim against City or City's Affiliated Parties shall be executed without the written consent of
both the City and Developer. The indemnity provisions in this Section 10.2 shall commence on
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the date of the Agreement Date, regardless of whether the Effective Date occurs, and shall
survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation reasonable attorney's fees, expert witness fees, and costs, based
upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous
Substance on or under any of the Property in violation of any applicable Environmental Law; (ii)
the actual or alleged migration of any Hazardous Substance from the Property through the soils
or groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by Developer in connection with Developer's Development of
the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date
occurs, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a Permitted
Transferee (which successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement) at any time from the Agreement Date until the Termination
Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and
any such transfer shall include the assignment and assumption of Developer's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of Developer's interest in the
Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor)
shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment
and assumption, executed in recordable form by the transferring and successor Developer and in
a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to
which the transferring Developer assigns to the successor Developer and the successor
Developer assumes from the transferring Developer all of the rights and obligations of the
transferring Developer with respect to the Property and this Agreement, or interest in the
Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the
obligation to perform such obligations that must be performed outside of the Property so
Transferred that are a condition precedent to the successor Developer's right to develop the
portion of the Property so Transferred. Any Permitted Transferee shall have all of the same
rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with
respect to the portion of, or interest in, the Property sold, transferred, and assigned to such
Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the
Property, or interest in the Property, no such Permitted Transferee shall have the right to enter
into an amendment of this Agreement that jeopardizes or impairs the rights or increases the
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obligations of the Developer with respect to the balance of the Property, without Developer's
written consent.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor Developer either (A) provides City with substitute security
equivalent to any security previously provided by the transferring Developer to City to secure
performance of the successor Developer's obligations hereunder with respect to the Property, or
interest in the Property, or the portion of the Property so Transferred, as determined in the City's
sole discretion, or (B) if the transferred obligation in question is not a secured obligation, the
successor Developer either provides security reasonably satisfactory to City or otherwise
demonstrates to City's reasonable satisfaction, as determined in the City's sole discretion, that
the successor Developer has the financial resources or commitments available to perform the
transferred obligation at the time and in the manner required under this Agreement and the
Development Regulations for the Project. Any determination by the City in regards to the
second paragraph of Section 11, subpart (iv) (A), (B), shall be documented in writing.
12. Mortga eights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
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12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortanee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) calendar days after receiving a Notice of Default with respect to a monetary
Default and within sixty (60) calendar days after receiving a Notice of Default with respect to a
non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by
obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain
possession with diligence and continuity through a receiver or otherwise, and to remedy or cure
the non -monetary Default within sixty (60) calendar days after obtaining possession and, except
in case of emergency or to protect the public health or safety, City may not exercise any of its
judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the
Mortgagee until expiration of the sixty (60) calendar day period. In the case of a non -monetary
Default that cannot with diligence be remedied or cured within sixty (60) calendar days, the
Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default,
provided the Mortgagee promptly commences to cure the non -monetary Default within sixty (60)
calendar days and diligently prosecutes the cure to completion.
13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy
14. Miscellaneous Terms.
14.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
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With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
TO DEVELOPER: Newport Center Anacapa Associates, LLC
901 Dove Street, Suite 270
Newport Beach, CA 92660
Attn:
With a copy to:
Either Party may change the address stated in this Section 14.1 by delivering notice to the
other Party in the manner provided in this Section 14. 1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
14.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
14.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
14.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default. Such estoppel certificates may be relied upon only by the Parties, their
respective successors and assigns, and, in the event of an estoppel certificate issued by City, a
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Mortgagee of Developer, including a Permitted Transferee, and its actual or prospective
Mortgagee. City shall be entitled to payment/reimbursement for its actual and reasonable costs
of investigation and preparation of an estoppel certificate prior to issuing the same.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) calendar days following receipt.
14.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
14.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
14.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
14.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
14.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
14.10 Severabilitv.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
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and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 14.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
14.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Developer each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
14.12 Successors and Assigns, Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. Except for those
provisions relating to indemnity in Section 10, all other, all other provisions of this Agreement
shall, from and after the Effective Date hereof, be enforceable as equitable servitudes and
constitute covenants running with the land. Subject to occurrence of the Effective Date, each
covenant to do or refrain from doing some act hereunder with regard to Development of the
Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs
with the Property and each portion thereof, and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 14.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
14.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third -party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
14.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the laws of the State of
California, without regard to conflicts of law principles. Any action at law or in equity arising
under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
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14.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
14.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGNATION
DESCRIPTION
A
Legal Description of Property
B
Depiction of the Property
14.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[Signature page follows]
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ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"DEVELOPER"
NEWPORT CENTER ANACAPA ASSOCIATES, LLC,
a California limited liability company
L -In
"CITY"
CITY OF NEWPORT BEACH
Brad Avery, Mayor
,11
16-189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
112/066751-0108
9650722.2 a07/14/21
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A
PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS
PER MAP FILED IN BOOK 29, PAGE 34, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER PARCEL A, IN THE CITY OF
NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 76
PAGE 32 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL
STEAM, AND OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE
FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL
RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND
REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED
HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE
SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED
WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS
THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY
SUCH WELLS OR MINES, WITHOUT HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND
OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND,
AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION,
RECORDED FEBRUARY 20, 1992, AS INSTRUMENT NO. 92-099183, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE
UTILIZE SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY
GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, BUT
WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED FEBRUARY 20, 1992, AS INSTRUMENT NO. 92-099183, OF OFFICIAL
RECORDS.
APN: 442-231-12
112/066751-0108
9650722.2 a07/14/21 A-1
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112/066751-0108
9650722.2 a07/14121
EXHIBIT B
DEPICTION OF PROPERTY
ISI
16-192
Attachment F
Ordinance No. 2021-20 (PC)
16-193
ORDINANCE NO. 2021- 20
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING ZONING
CODE AMENDMENT NO. CA2020-008 AND PLANNED
COMMUNITY DEVELOPMENT PLAN NO. PC2020-001
ESTABLISHING THE RESIDENCES AT NEWPORT
CENTER LOCATED AT 150 NEWPORT CENTER DRIVE
(PA2020-020)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers, and privileges, or procedures granted or prescribed by any
law of the State of California;
WHEREAS, an application was filed by Newport Center Anacapa Associates,
LLC ("Applicant"), with respect to property located at 150 Newport Center Drive and
legally described in Exhibit "A," which is attached hereto and incorporated herein by
reference ("Property");
WHEREAS, the Project includes the demolition of an existing 2,085 -square -foot car
wash, convenience market, and gas station and the construction of a four-story structure
consisting of 28 condominium units and common space amenity areas over a two-level
below -grade parking garage ("Project") which require the following approvals from the City:
• General Plan Amendment No. GP2020-001 — to change the Property's land
use designation from Regional Commercial Office (CO -R) to Multiple
Residential (RM) and create a new Anomaly Location for the Property that
authorizes a maximum development density of 28 dwelling units;
• Zoning Code Amendment No. CA2020-008 — to change the Property's zoning
designation from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land
uses and development standards for the Property including a waiver of the
minimum site area;
• Major Site Development Review No. SD2020-001 — to allow for the
development of a four-story structure containing 28 luxury condominium units
and common space areas over a two-level below -grade parking garage;
16-194
Ordinance No. 2021 -
Page 2 of 6
• Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential
condominium subdivision map on the 1.26 -acre Property that would allow each
unit to be sold individually;
• Development Agreement No. DA2020-001 — to provide the Applicant with the
vested right to develop the Project subject to the rules and regulations in effect
at the time of Project approval and to provide the City with assurance that
certain obligations of the Applicant will be met, including public benefit fees;
• Environmental Impact Report No. ER2021-002 - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project
specific discretionary approvals, the City has determined that an Initial Study
and Environmental Impact Report ("EIR") are warranted for the Project pursuant
to California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14,
Division 6, Chapter 3 of the California Code of Regulations ("CEQA
Guidelines"), and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will
replace the operation of the existing car wash;
WHEREAS, the Property is designated Regional Commercial Office (CO -R) by
the City of Newport Beach General Plan ("General Plan") Land Use Element and is
located within the Office Regional (OR) Zoning District;
WHEREAS, the Property is not located within the coastal zone;
WHEREAS, a study session was held on May 6, 2021, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the Project to the
Planning Commission and discuss the procedures for environmental review;
WHEREAS, the Planning Commission held a public hearing on August 19, 2021
in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the hearing was given in accordance with California Government
Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development
Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District
Procedures), and 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing;
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Ordinance No. 2021 -
Page 3 of 6
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council
approve the Project; and
WHEREAS, the City Council held a public hearing on September 28, 2021, in the
Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time,
place and purpose of the public hearing was given in accordance with the Ralph M.
Brown Act and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map
Review), 20.56 (Planned Community District Procedures), and 20.62 (Public Hearings)
of the NBMC. Evidence, both written and oral, was presented to, and considered by, the
City Council at this public hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and determined that modifications to the Project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: Zoning Code Amendment No. CA2020-008 is hereby approved to
rezone the Property from OR (Office Regional) to PC -61 (Residences at Newport
Center Planned Community), as depicted in Exhibit "B," which is attached hereto and
incorporated herein by reference.
Section 3: Planned Community Development Plan is hereby approved, as
depicted in Exhibit "C," which is attached hereto and incorporated herein by reference,
thereby establishing the permitted uses, development standards, and design guidelines
for the Property. Additionally, the City Council hereby waives the minimum acreage
requirement for the establishment of a PC District as authorized in Section 20.25.020
(Area Requirements) of the NBMC.
Section 4: Amendments to Title 20 (Planning and Zoning) of the NBMC are
legislative acts. Neither Chapters 20.66 (Amendments) and 20.56 (Planned Community
Development District Procedures) of Title 20 (Planning and Zoning) of the Newport
Beach Municipal Code, the Charter of the City of Newport Beach, nor Article 2
(Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and
Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth
any required findings for either approval or denial of amendments to the NBMC.
Nevertheless, rezoning the Property to PC -61 Residences at Newport Center is
16-196
Ordinance No. 2021 -
Page 4 of 6
consistent with the purpose of Planned Community Districts as specified in NBMC
Section 20.56.010 for the reasons set forth below.
Facts in Support of Finding:
1. PC -61 (Residences at Newport Center Planned Community) District meets the
intent and purpose for a PC as specified in NBMC Section 20.56.010 (Purpose)
given its location in the Newport Center area which includes a mixture of
shopping, hotels, commercial support uses, professional offices, and residential
developments that cumulatively contain the ingredients of a planned community.
PC -61 (Residences at Newport Center Planned Community) District PC District
adds to this diversity assisting the City in larger scale community planning.
2. PC -61 (Residences at Newport Center Planned Community) District would
establish appropriate site and project specific setbacks, density, and height limits
to the Property given its urban location. All required parking is provided on-site.
The Property is fully developed and does not support any natural resources and
all potential environmental impacts associated with the project are appropriately
addressed through standard building permit procedures, conditions of approval,
and the mitigation measures identified in the Environmental Impact Report and
contained in the Mitigation Monitoring and Reporting Program.
3. The size, density and character of the proposed dwelling units complement the
existing land uses in the project area and include design elements consistent
with Land Use Element Policy 5.1.9 (Character and Quality of Multi -Family
Residential) that require multi -family dwellings to be designed to convey a high-
quality architectural character. Consistent with General Plan Policy LU 6.2.1
(Residential Supply), the provision of 28 dwelling units on the Property would
accommodate Newport Beach population needs identified in the General Plan
Housing Element and accommodate market demand for residential uses.
4. The Property is located in an area of the City that has sufficient utilities systems
to serve the Project.
5. A waiver of the 10 -acre minimum of developed site area is requested as part of
the establishment of the PC Zoning District. The Newport Center area is an
urban, developed region of the City that cumulatively includes all of the
necessary ingredients of a Planned Community.
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Ordinance No. 2021 -
Page 5 of 6
6. The future development of the Property affected by the proposed amendment will
be consistent with the goals and policies of the Land Use Element of the General
Plan; and will be consistent with the purpose and intent of the proposed
Residences at Newport Center Planned Community (PC) Zoning District of the
NBMC.
7. A voluntary development agreement has been requested by the Applicant as the
Project would add new residential dwelling units within Statistical Area L1
(Newport Center). The Development Agreement includes all the mandatory
elements for consideration and public benefits that are appropriate to support
conveying the vested development rights consistent with the General Plan,
NBMC, and Government Code Section 65864 et seq.
Section 5: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 6: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 7: The Residences at Newport Center Final Environmental Impact
Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA,
the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-_,
the City Council, having final approval authority over the Project, adopted and certified
as complete and adequate the Residences at Newport Center Final Environmental
Impact Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and
Reporting Program." Resolution No. 2021-_, including all findings contained therein, is
hereby incorporated by reference.
Section 8: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
Section 9: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
16-198
Ordinance No. 2021 -
Page 6 of 6
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 28th day of September, 2021, and adopted on the 12th
day of October, 2021, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
BRAD AVERY, MAYOR
ATTEST:
LEILANI 1. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
-14 ( __- -�-_
AARON . HARP, CITY ATTORNEY
Attachment(s) Exhibit A - Legal Description
Exhibit B - Zoning Map Amendment
Exhibit C - PC -61 (Residences at Newport Center Planned
Community Development Plan)
16-199
Exhibit "A"
Legal Description
The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No.
282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1,
Page 88 of Miscellaneous Record Maps, records of Orange County, California.
16-200
Exhibit "B"
Zoning Map Amendment
16-201
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Zoning Code Amendment
City of Newport Beach
GIS Division
150 Newport Center Dr August 30, 2021
7 (D -LUL
Exhibit "C"
PC -61 (Residences at Newport Center Planned Community Development Plan)
16-203
RESIDENCES
AT NEWPORT CENTER
Planned Community Development Plan
Date: April 19, 2021
Ordinance No.
Adopted 12020
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TABLE OF CONTENTS
1.0 Introduction and Purpose 3
2.0 Land Use and Development Regulations
4
2.1
Architectural Design
4
2.2
Permitted Uses
5
2.3
Building Setbacks
5
2.4
Density: Number of Units
6
2.5
Floor Area
6
2.6
Grade for Purposes of Determining Height
6
2.7
Height
7
2.8
Landscaping and Irrigation
7
2.9
Lighting
9
2.10
Mechanical Equipment
9
2.11
Open space
9
2.12
Parking
10
2.13
Signs
11
2.14
Podium Walls
12
2.15
Patio Walls
13
2.16
Trash Service and Container Storage
14
2.17
Construction Requirements
14
a. Archaeological/Paleontological
b. Building Codes
c. Grading
d. Sewer Service
e. Storm Water Management
f. Telephone, Gas and Electrical Service
g. Water Service
3.0 Site Development Review
16
3.1
Purpose
16
3.2
Application
16
3.3
Design (Elevations) and Site Development of Building
16
LIST OF EXHIBITS
Exhibits Name
Exhibit Number
Conceptual Site Plan & Project Summary A
Setback Exhibit B
Building Tabulation C
Sections D
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1.0 INTRODUCTION AND PURPOSE
The Residences at Newport Center Planned Community Development Plan (PC) is
composed of 28 condominium units located in 4 story buildings totaling 103,158 square
feet of gross building area connected by a common lobby and entry. The project is located
at the southwest intersection of Newport Center Drive and Anacapa Drive in Newport
Center on a 54,949 square feet parcel. The vision presented in the plan shows two luxury
residential buildings with a common entrance and lobby intended to integrate a casual
urban lifestyle with a contemporary California building design.
The unit mix includes 8 residential units on the ground floor, 16 flats on levels 2 and 3 and
four penthouses on Level 4. The square footage of the residential units is 85,236 square
feet. Level 1 will also have a lobby and a lounge with a kitchen, fitness room/spa, lap pool
and office that is approximately 5,518 square feet (not including pool area) and does not
include circulation.
The project is designed for two levels of parking below grade. Level B-1 is partially at
grade on the southern edge to allow tenant and visitor access. General delivery will occur
at the building entry off Anacapa Drive and moving van access is provided on the south of
the building. All units have a private 2 -car garage located within the lower levels. Further,
there is one-way vehicular access to the garage from the front entry of the project primarily
for visitors.
The PC identifies land use relationships and associated development standards for the
district identified as the Residences at Newport Center. To that end, it coordinates and
complements the broader scale and massing of the Newport Center area and specifically
Block 100. The PC ensures a broader coordination and consistency with the surrounding
neighborhood, to include a high level of contemporary architectural quality supporting the
Newport Center environment along with pedestrian connectivity.
The PC includes a specific set of standards incorporated through a comprehensive review
of the project within Newport Center while ensuring substantial compliance with the spirit
and intent of the Zoning Code. The PC ensures the following site development review
objectives are met:
1. Ensure consistency with General Plan policies related to the preservation of
established community character, and expectations for high quality
development.
2. Respect the physical and environmental characteristics of the site.
3. Ensure safe and convenient access and circulation for pedestrians and vehicles.
4. Allow for and encourage individual identity for specific uses and structures.
5. Encourage the maintenance of a distinct neighborhood and/or community
identity.
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6. Minimize or eliminate negative or undesirable visual impacts.
7. Ensure protection of significant views from public right(s)-of-way in
compliance with NBMC Section 20.30. 100 (Public View Protection);
8. Allow for different levels of review depending on the significance of the
development project (Newport Beach, 2015a).
Whenever the regulations contained in the PC conflict with the regulations of the
Newport Beach Municipal Code (NBMC), the regulations contained in the PC shall
take precedence. The NBMC shall regulate all development within the PC when such
regulations are not provided within the PC Regulations.
2.0 LAND USE AND DEVLOPMENT
The following development standards shall apply to the residential condominium units.
2.1 ARCHITECTURAL DESIGN
The Residences at Newport Center design is inspired by creating a casual yet elegant architecture
that is conceived as two casual and contemporary 4 story buildings that are Iinked together via a
modern glass entry with a water feature creating the entry into the lobby. Architecturally, the
buildings are proportioned with a defined base, middle, and top that is reinforced by flat plate
structure and glass walls. The elevations are presented through the use of massing, setbacks and
subtle variations in the roof line.
The building's material palate consists of stone neutrals and glass building facade compatible with
the surrounding development in Newport Center. The design will complement, enhance, and be
compatible with the adjacent retail and office properties. In keeping with this philosophy, the
exterior will be comprised predominately of stone base, stone cladding, metal finishes and glass.
Massing offsets, variations of roof line, varied textures, recesses, articulation, and design accents
on the elevation are integrated to enhance the expression of a unique and contemporary
architectural style.
All first floor residences include outdoor patios and resident entries from the public lobby.
Fenestration of the buildings is developed around the "California Coastal" view of indoor —
outdoor living. Openings above level 1 will have foldable doors allowing for the full aperture to
engage with interior living. Connections to the common area are reinforced via a social gathering
space within the lobby that incorporates both interior and exterior landscape areas.
The exterior landscaping will further enhance the feel of a luxury lifestyle at the adjacent
intersection of Anacapa and Newport Center Drive. The crosswalks at the corner of Newport
Center Drive and Anacapa Drive shall enhance the visual connection to the adjoining office,
entertainment, restaurants, and medical districts. Along Anacapa Drive, the project will provide
resident access via a 27 foot wide driveway served by a luxurious lobby and entry water feature.
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Further, there is access to the visitor parking via a one-way ramp to the lower level. Optionable
valet parking will be provided at the entry level. A dog run on the ground level at the southwest
corner is provided for the residents.
2.2 PERMITTED USES
a. Condominiums (Multi -Family Residential).
b. On-site recreational facilities, valet station, wine storage, separate dedicated storage areas, and
other structures ancillary to residential uses.
c. Telecommunications facilities are permitted in accordance with Chapter 20.49 (Wireless
Telecommunications Facilities) of the NBMC.
d. Land uses that are not listed above are not allowed, except as provided by Chapter 20.12
(Interpretation of Zoning Code Provisions) of the NBMC or as required by State Law.
e. Temporary uses may be allowed only upon approval of a limited term permit pursuant to
Section 20.52.040 (Limited Term Permits) of the NBMC.
2.3 BUILDING SETBACKS
a. Above grade level podium (required/provided)
Anacapa Drive 15 feet/26 feet (including a 3 -foot pedestrian
easement)
21 feet for the roof overhang
Newport Center Drive 15 feet /15 feet
10 feet at the roof overhang
Western property line 0 feet/l9 feet
13 feet 6 inches at the roof overhang
Southern property line 0 feet/ 19 feet (Including a 10 -foot private pedestrian
walkway easement)
b. Below grade level podium (required/provided)
Anacapa Drive 0 feet/ 15 feet
Newport Center Drive 0 feet/ 15 feet
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Western Property Line 0 feet/ 7 feet for basement walls
Southern Property line 0 feet/ 10 feet
Patios may encroach up to 7 feet 4 inches into required setback areas. Decks and balconies may
encroach up to 2 feet 6 inches into the required setback. Decorative architectural features such as
roof overhangs, brackets, and eaves may encroach up to 30 inches into a required setback area,
provided that no architectural features shall project closer than twenty-four inches from a side
property line. Further, the roof overhang on Newport Center Drive may extend up to 60 inches
into the setback. The footings on the south of the building may encroach up to 3 feed feet into the
easement Fences, hedges, and walls may encroach into the required setback areas subject to the
requirements set forth in Section 2.14.
2.4 DENSITY
The maximum allowable number of condominium residential units shall be 28.
2.5 FLOOR AREA
a. Building Area
The maximum gross building area limit for the development is 103,158 gross square feet at a
floor area ratio (FAR) of 1.88.
Gross building Area Definition:
The following areas shall be included in calculations of gross floor area:
a) Any interior finished portion of a structure that is accessible and that measures more than
six feet from finished floor to ceiling.
The following areas shall be excluded:
1. Stairwells and elevator shafts above the first level.
2. The surrounding exterior patio areas.
3. Parking structures including private garages and mechanical areas within the parking
structure.
b. Floor Area per Unit. Residential uses are measured on a per unit basis.
i. Ground floor (I" floor):
1,430 square feet minimum
ii. Units on floor 2:
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2,493 square feet minimum
iii. Units on floor 3:
2,316 square feet minimum
iii. Penthouses (floor 4):
5,223 square feet minimum
2.6 STANDARDS FOR ALLOWABLE HEIGHTS
The building heights are measured from established grade as hereinafter defined. The building is
on a sloping surface and the measurement of height is taken from the building entrance at 167.75
feet (NAVD88). Thus, established grade shall be defined at an elevation of 167 feet 9 inches
(NAVD88).
2.7 HEIGHT
The building height shall not exceed 52 feet I1 inches from the established grade (167.75 feet
NAVD88) of the site or 220 feet 8 inches above mean sea level (AMSL). The height of the open
area between the buildings is approximately 19 feet 8 inches above the established grade of the
site or 187 feet 6 inches NAVD88.
Rooftop appurtenances are permitted and may exceed the maximum building height by up to 7
feet (227.66 feet NAVD88). Rooftop appurtenances may include, but are not limited to, stairwell
and elevator shaft housing, antennae, window washing equipment, and wireless communication
facilities. The mechanical equipment for this project shall be sited in the interior of the 2 -level
parking structure. Rooftop appurtenances shall not exceed 30 percent of the overall roof area and
shall be focused toward the interior of the building footprint adjacent to the elevator override and
stairway. Rooftop appurtenances must be screened from view; the height of rooftop appurtenances
shall not exceed the height of the screening. Supports for window washing equipment are permitted
and are not required to be screened from view. Rooftop appurtenances within the 7 -foot limitation
are subject to the review and approval of the Planning Division.
Architectural features may exceed the maximum building height up to 2 feet (169.75 feet
NAVD88). Architectural features include the building rooftop edge and other decorative rooftop
features defined as visually prominent or formally significant elements of a building that express
its architectural language and style in a complementary fashion. Architectural features should be
logical extensions of the massing, details, materials, and color of the building which complement
and celebrate its overall aesthetic character. Such features must be an extension of the architectural
style of the building in terms of materials, design, and color.
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2.8 LANDSCAPING AND IRRIGATION
A minimum of 15 percent of the lot area shall be landscaped (8,242 square feet). Landscaping and
irrigation shall be provided in all areas not devoted to structure, driveways, walkways, and private
patios to enhance the appearance of the development, reduce heat and glare, control soil erosion,
conserve water, screen adjacent land uses, and preserve the integrity of the PC.
Site landscaping and irrigation will be designed and planted in accordance with Chapter 20.36
(Landscaping Standards of the Newport Beach Municipal Code (NBMC) and Chapter 14.17
f Water -Efficient Landscaping) of the Newport Beach Municipal Code. Plants shall be adapted to
the coastal climate of Newport Beach and appropriate to the specific soil, topographic, and
sun/shade conditions of the project site. Drought -tolerant plants shall be used to the maximum
extent practicable. Plant species having comparable water requirements shall be grouped together
for efficient use of irrigation water. All plant materials shall conform to or exceed the plant quality
standards of the latest edition of American Standard for Nursery Stock published by the American
Association of Nurserymen, or the equivalent. Plant selection shall be harmonious to the character
of the project and surrounding projects and shall not be listed as an invasive species by the
California Invasive Plant Council.
a. Minimum Landscape Requirements:
1. Landscaping shall incorporate a street tree species along Newport Center Drive (existing
Mexican Fan Palms to be protected on Newport Center Drive) and Anacapa Drive (Lemon
scented Gum, Eucalyptus citriodora or other tree to the satisfaction of the General Services
Division). The same species street tree shall be planted on both sides of Anacapa Drive,
north of the drive entry (upon the adjacent property owner's approval).
2. The Anacapa Drive parkway shall be maintained and landscaped to complement the
existing on-site landscaping. Landscaping and irrigation shall consist of a combination of
trees, shrubs, and groundwater and hardscape improvements.
3. The landscaped island at the southern entry within the ingress/egress easement shall be one
continuous landscape area as shown on the attached Exhibit A (upon the underlying
property owner's approval).
4. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction
of the City Traffic engineer.
5. Planting areas adjacent to vehicular entrances shall be protected by a continuous concrete
curb or similar perimeter barrier.
6. The ground floor landscape area shall include a dog run for use by the occupants of the
project.
7. Landscape areas shall provide a minimum width dimension of 2.5 feet to provide adequate
planting area.
8. Evergreen planting a minimum of 5 feet high shall be used to screen the podium wall along
the eastern property line (along Newport Center Drive).
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9. All landscape materials and irrigation systems shall be maintained in accordance with the
approved landscape and irrigation plans. All landscaped areas shall be maintained in a
healthy and growing condition in accordance with the NBMC and shall receive regular
pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds
and debris. All irrigation systems shall be kept operable, including adjustments,
replacements, repairs, and cleaning as part of regular maintenance.
10. Landscape planting and irrigation plans and specifications shall be submitted by the
applicant for review and approval by the Planning Division prior to the issuance of a
building permit.
b. Irrigation Guidelines
An irrigation system shall be installed and shall incorporate appropriate locations, numbers, and
types of water distribution and emitters to provide appropriate amounts of water to all plant
materials. Application rates and spray patterns shall be consistent with the varying watering
requirement of different plant groupings.
Irrigation systems and controls shall include technology that minimizes over watering by either:
(a) directly measuring soil moisture levels, plant types, and soil types and adjusting irrigation
accordingly, or, (b) receiving weather information at least on a daily basis via satellite or similar
transmission and adjusting irrigation accordingly. The irrigation system shall be designed to
prevent over -watering and minimize overspray and runoff onto streets, sidewalks, driveways,
buildings, fences, and window consistent with water conservation and pollution run-off control
objectives.
Should reclaimed water infrastructure be constructed along Newport Center Drive, the site's
existing potable irrigation system shall be converted and connected to said infrastructure within
one year of its availability.
2.9 LIGHTING
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield
adjacent uses/properties and to not produce glare onto adjacent uses/properties. Lighting plans
shall be prepared in compliance with Chapter 20.30.040 (Outdoor Lighting) of the NBMC. All
lighting and lighting fixtures that are provided shall be maintained in accordance with the approved
lighting plans.
Light fixtures on buildings shall be full cut-off fixtures. Light spillover may not exceed one foot-
candle at the subject property line. Lighting of building interior common areas, exteriors and
parking entrances shall be developed in accordance with City Standards and shall be designed and
maintained in a manner which minimizes impacts on adjacent land uses. Nighttime lighting shall
be limited to that necessary for security.
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The plans for lighting shall be prepared and signed by a licensed electrical engineer and shall be
subject to review and approval of the Community Development Director or their designee. If in
the opinion of the Director existing illumination creates an unacceptable negative impact on
surrounding land uses or sensitive habitat areas, the Director may order the dimming of light
sources or other remediation upon finding that the site is excessively illuminated.
2.10 MECHANICAL EQUIPMENT
Roof -top mechanical equipment shall not exceed 7 feet above the maximum height of the building
and shall comply with Section 20.30.020 (Buffering and Screening) of the NBMC. All mechanical
appurtenances on building roof tops and utility vaults shall be screened in a manner meeting the
approval of the Director of Community Development or their designee. It is the intent to place the
mechanical equipment in the garage, if feasible. If placement of mechanical equipment in the
garage is not possible, then the standards articulated in this section shall be implemented.
All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts, exhaust vents,
telecom antennas & support equipment, swimming pool and spa pumps, filters, transformers,
utility vaults, and emergency power generators) shall be screened from the public view and
adjacent land uses. The enclosure design shall be approved by the Community Development
Department. All rooftop equipment shall be architecturally treated or screened from off- site views
in a manner compatible with the building materials prior to final building permit clearance. The
mechanical equipment shall be subject to sound rating in accordance with the Chapter 20.30.20
(Bufferiniz and Screening,) of the NBMC. There shall be a garage exhaust tower that is 10 feet
above finished grade in the buildable area along Anacapa Drive,
2.11 OPEN SPACE
a. Common Outdoor Space
Common outdoor space consists of land area within the residential development that is not
individually owned or dedicated for public use that is designed, intended, and reserved exclusively
for the shared enjoyment or use by all residents and their guests. Common outdoor space may be
active or passive. Illustrative examples include areas of scenic or natural beauty, barbecue areas,
landscaped areas, play areas, swimming pools, pet areas, or turf areas.
A minimum of 5% of lot area (2,750 square feet for 28 dwelling units) of common open space
shall be provided. Common outdoor space shall be provided either at grade, podium level, or roof
level. Common outdoor space areas shall have a minimum dimension of 15 feet. A minimum of
10 percent of the common outdoor space must be landscaped. All common outdoor space must be
accessible to all residents.
b. Common Indoor Space
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The building shall provide at least one community room of at least 500 square feet available for
use by all residents of the project. The area should be located adjacent to, and accessible from,
common/public space. This area may contain active or passive recreational facilities or meeting
space and must be accessible through a common/public area.
c. Private Open Space
Private open space shall be a minimum of 30 square feet per dwelling unit (6 -foot by 5 -foot
minimum). At least 50 percent of all dwelling units shall provide private open space, on a balcony,
patio, or roof terrace. Balconies should be proportionately distributed throughout the project in
relationship to floor levels and sizes of units. Qualifying private open space areas shall be
permanently open on one full side or substantially open on multiple sides.
Private open space consists of an outdoor or unenclosed area directly adjoining and accessible to
a dwelling unit, reserved for the exclusive private enjoyment and use of residents of the dwelling
unit and their guests (e.g., balcony, deck, porch, terrace, etc.). Boundaries are evident by use of
fences, gates, hedges, walls, or other similar methods of controlling access and maintaining
privacy.
2.12 PARKING
Parking to the project shall be underground and not visible from the public right-of-way and
surrounding area. Parking spaces, driveways, maneuvering aisles, and turnaround areas shall be
kept free of dust, graffiti, and litter. All components of the parking area including striping, paving,
wheel stops, walls, and lighting of the parking area shall be permanently maintained in good
working condition. Access, location, parking space and lot dimensions, and parking area
improvements shall be in compliance with parking standards of Title 20 of the NBMC. All required
parking shall be provided on-site. There shall be a gated entry into the lower level for the resident
owner with an electronic entry key.
The main driveway entry shall be approximately 27 feet wide in front of the lobby entrance. The
lobby shall have a concierge to provide services to residences such as U.S mail delivery, package
delivery, mailing, receiving food delivery and meeting guests. There shall be optional valet
services for the guests. Guest shall have the option to self -park . The guests parking spaces are
accessed by the valet by a one-way internal ramp at the south end of the driveway and the parking
spaces are at the first lower level. Valet service shall return the vehicles to the front entry via the
main entry on Anacapa if the guests did not self -park. The rules and regulations of these operations
shall be established by the Home Owners Association.
A minimum of two (2) enclosed private parking spaces shall be provided for each of the dwelling
units on Level 1. The units on Level 2 through 4 shall have a minimum of two (2) enclosed parking
spaces per unit. One half (1/2) guest parking space shall be provided per unit for a total of 14 guest
parking spaces including 1 ADA stall. Each two -car garage shall provide minimum clear interior
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dimensions of 17 feet 6 inches in width by 19 feet in depth and shall be maintained so that it is
accessible to vehicles.
Guest parking spaces shall maintain a minimum width of 8 feet 6 inches in width by 17 feet in
depth. There shall be 10 employee spaces on the lower level of the garage. The total visitor and
employee parking shall be 24 stalls. There shall be 4 guest charging stations for electric vehicles.
All resident and guest parking spaces shall be maintained clear of obstructions and available for
parking of vehicles at all times. Vehicle parking and maneuvering areas shall be restricted to the
operation, maneuvering and parking of operable vehicles.
2.13 SIGNS
If three (3) or more signs are proposed for the development, a comprehensive sign program
application for the Residences at Newport Center shall be submitted for review and approval by
the Zoning Administrator. Sign allowance and standards will be in accordance with Chapter 20.42
(Sign Standards) of the NBMC.
2.14 FENCES, HEDGES, AND WALLS
Walls and hedges shall be in accordance with the NBMC except as shown on the Site
Development Review plans and described in the PC. This does not apply to exempt signs per the
NBMC. Where a nonresidential zoning abuts a residential zoning district, consideration of a
Iandscape buffer as mitigation for wall heights, shall be reviewed as part of the Site Development
Review.
a. Podium Walls
The subject property is a sloping site with an elevation change of approximately I 1 feet from the
northeast corner to the southwest corner. Specifically, the northeast corner is at an elevation of
approximately 170 feet and the southwest corner is at an elevation of 159 feet (all elevations
reference NAVD88). Further, the site on the north property line drops from the northeast corner
of 170 feet to 164 feet at the northwest corner. The project is designed for two levels of parking
below grade. Level B-1 is partially at grade on the southern edge to allow access from the private
driveway, and Level 2 is below grade.
The entire project has a podium that incorporates the parking garage and the residential units are
built on the podium deck. The podium lower level has a floor elevation of 148 feet and rises to a
ceiling height of 169 feet 6 inches for most of the building. The ceiling height below Flat 1 and 2
is 2 feet 6 inches higher than the 169 feet 6 inch referenced above to accommodate the entry for
trucks and vans on the south end of the building. The walls, floor and ceiling heights define the
podium.
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The podium walls on the southwest of the building are exposed from elevation 159 up to 173 feet
at Flats 1 and 2. The top of wall is 13.8 feet above the adjacent ground elevation of 159 feet.
There is a 42 -inch glass railing above the podium. On the western property line there is enhanced
landscaping to mitigate the exposed podium wall. The sections shown in Exhibit D graphically
illustrate the elevation changes.
b. Patio Walls
The patios on the north of the complex may encroach into the setback area up to 7'6"feet. The
top of wall elevations on the patios on the north side may reach 176.5 feet (NAVD88) for Flats 6
through 8. The grading plan includes raising the grade in front of the patio walls by
approximately 1 to 2 feet. Further, there shall be enhanced landscaping in front of the patio walls
to buffer the view of patio walls from the streetscape.
2.17 TRASH SERVICE
Trash disposal service will be provided by CR&R (or other provider) as contracted by the City of
Newport Beach and shall be subject to applicable regulations, permits and fees as prescribed by
the city.
Trash container storage and bins shall be located within the lower level parking structure in an area
to be designed and engineered for odor control and accessible for pick-up. Common trash bins
provided shall be a minimum of 192 square feet for Trash and Recycling in accordance with
Chapter 20.34.120 (Solid Waste and Recyclable Materials) of the NBMC. The bins will be brought
by a scout truck from their regular storage areas in the basement to the southerly residential access
drive for pick-up by regular trash trucks. Trash pick-up and staging shall not block vehicular access
through the southerly access drive. Trash pick-up and loading is not permitted within the Anacapa
Drive right-of-way.
2.18 CONSTRUCTION REQUIREMENTS
a. Archaeological/Paleontological
Grading of the site is subject to the provisions of the City Council policies K-4 & K-5 regarding
archaeological and paleontological resources.
b. Building Codes
Construction shall comply with applicable provisions of the California Building Code and the
various other mechanical, electrical, and plumbing codes related thereto as adopted by the NBMC.
c. Grading
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Grading and excavation of the development area shall be conducted and undertaken in a manner
both consistent with grading manual standards and ordinances of the City of Newport Beach and
in accordance with a grading and excavation plan approved by the City of Newport Beach Building
Division.
d. Telephone, Gas and Electrical Service
All "on-site" gas lines, electrical lines and telephone lines shall be placed underground.
Transformer or terminal equipment shall be visually screened from view from streets and adjacent
properties.
e. Sewage Service
All sewer lines shall be designed in accordance with the Utilities Manager approval.
f. Storm Water Managemen
The project shall adhere to the Water Quality Management Plan (WQMP) approved in conjunction
with the issuance of building permits. Drainage and water quality assurance measures will be
implemented as per the City Public Works and Municipal Separate Storm Sewer System (MS4)
requirements. Development of the property will be undertaken in accordance with the flood
protection policies of the City.
g. Water service
Water service to the site will be provided by the City of Newport Beach and is subject to applicable
regulations, permits and fees as prescribed by the City. The project shall provide the infrastructure
for Fire Protection Water Service and Domestic water. Each water meter shall be served and
installed in accordance with the Public Works Department approval.
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3.0 SITE DEVELOPMENT REVIEW
3.1 PURPOSE
The purpose of the Site Development Review (SDR) process is to ensure new development within
the Newport Center Residences Planned Community Development is consistent with the goals and
policies of the General Plan, and provisions of the Planned Community Development Plan,
3.2 APPLICATION
Prior to the issuance of building permits for the original site development, a SDR application shall
be required for the Newport Center Residences Planned Community Development in accordance
with Section 20.52.080 (Site Development Reviews) of the NBMC.
3.3 DESIGN (ELEVATIONS) AND SITE DEVELOPMENT OF BUILDING
The SDR shall be part of this PC and shall be reviewed concurrently with the PC. The submitted
site plans and elevations shall be part of this application.
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PROJECT SUMMARY
PROJECT SUMMARY
MULTI -STORY PROJECT
PROJECT DESCRIPTION
THE PROJECT CONSISTS OF (1) MULTI -STORY
RESIDENTIAL BUILDING
4 STORIES OF RESIDENTIAL
2 LEVELS OF UNDERGROUND PARKING
28 DWELLING UNITS
BUILDING CODE : CALIFORNIA BUILDING CODE 2019
OCCUPANCY GROUP:
R-2 (RESIDENTIAL) & S-2 (PARKING)
BUILDING TYPE OF CONSTRUCTION:
TYPE I OR TYPE 2 (FULLY SPRINKLERED)
GOVERNING AGENCY:
CITY OF NEWPORT BEACH
LOT COVERAGE:
LOTAREA
54,949 S.F.
BUILDING FOOTPRINT (FIRST FLOOR)
27,006 S.F.
FAR
1.88
LOT COVERAGE (EXISTING)
55% EXISTING
PLANNING DEPARTMENT GROSS AREA:
1 ST FLOOR AREA:
+/- 27,006 S.F.
2ND FLOOR AREA:
+!- 26,551 S.F.
3RD FLOOR AREA:
+/- 25,564 S.F.
4TH FLOOR AREA:
+!- 24,037 S.F.
GROSS FLOOR AREA
+!- 103,15B S.F.
ADDITIONAL AREAS:
NEWPORT CENTER DR.
PARKING BASEMENT UPPER AREA:
+/- 37,674 S.F.
PARKING BASEMENT LOWER AREA:
+/- 33,782 S.F.
TOTAL PARKING GARAGE AREA:
+a 71,456 S.F.
PARKING:
0/10'
REQUIRED
RESIDENTIAL (2 PER UNIT)
56 STALLS
GUEST (.5 PER UNIT)
14 STALLS
PROVIDED
RESIDENTIAL
57 STALLS
GUEST (INC. ACCESSIBLE & 3 VALET)
26 STALLS
4/15/2021
SETBACKS'
REQUIRED ! PROVIDED (FT)
ABOVE PODIUM BELOW PODIUM
ANACAPA FRONTAGE
15'/ 26'
0 / 15'
NEWPORT CENTER DR.
15'/ 15'
0/15,
WESTERN PRTY LINE
0/19'
0 /7'
SOUTHERN PRTY LINE
0/19,
0/10'
NOTE: SETBACKS DO NOT INCLUDE ARCHITECTURAL PROJECTIONS
OPEN SPACE: See A20.1 and A20.2
REQUIRED
COMMON OUTDOOR
5% of GROSS LOT
2,750 S.F.
OPEN SPACE
AREA
+!- 3,600 S.F.
PRIVATE OPEN SPACE
30 SF PER EACH UNIT
840 S.F.
TOTAL REQUIRED
3,590 S.F.
PROVIDED
COMMON OUTDOOR OPEN SPACE
+!- 3,600 S.F.
PRIVATE OPEN SPACE
+/- 12,230 S.F.
TOTAL PROVIDED
+/- 15,830 S.F.
RESIDENTIAL UNITS:
RESIDENTIAL UNITS GROSS AREA' (FLOOR 1-4) : +1- 85,236 S.F.
'NOTE: DOES NOT INCLUDE SHARED CIRCULATION
NOTES
EXHIBIT - page 1 of 2
16-219
4
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- ANACAPA DRIVE
CONCEPTUAL SITE PLAN
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16-220
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FUSCOE
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BUILDING SETBACK EXHIBIT
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03/30/21
16-221
Building Tabulation
9/2/2020
RESIDENTIAL AREA 1 PLANNING AREAS (gross sf')
Unit # I Level; Area (gross sf`) first floor residential 15,903
1 i 1 2,271 first floor circulation / misc 1 5585 !
2 i 1 1,430 ` offices 602: 1
3 1 2,043: storage 441
4 1 " 1,478: entry 489
5 1 2,121 . lounge 1100:
6 1 2,228. concierge 691
7 1 `: 1,647 condo meeting & kitchen 999
8 1 2,685 fitness 1196
:
9 2 2,832.first floor total 27,006
10 ' 21 3,789:
.
11 21 2,963 second floor residential 24,284
12 2 2,493 1 second floor circulation / misc 2267
131 2 2,521: second floor total 26,551
14! 21 2,954.
15 I 2 i 3,766
16 2 2,966
:
—_
17 31 2,649 third floor residential 23,239
183 3,646 third floor circulation /misc 2325
-- -
19 3 , 2,866. third floor total 25,564 '—�
20 3 ------- 2,316 - — - ---
21 3 2,344.
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2,955. fourth floor residential 21,810. I i
23 i 31 3,667 fourth floor circulation / misc ; 2227
241 3 2,796 fourth floor total i 24,037
�— -
25 4 5,636:
26 , 4 5,223!
27 4 5,262', TOTAL GROSS PLANNING AREAS 103,158
_...._ 28 4 5,689
--
Total Residential Units 85,236 j Additional Areas
- Parking 1 37 674
Circulation,Lobbies,
Gross planning area 103,158 - .. .
-- —
9 1 Parking 2 33,782
' I
NOTE All areas are shown as gross numbers(including exterior walls & finishes). j
Condo units are sold as interior airspace and would be smaller area.
EXHIBIT C
16-222
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16-223
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16-223
Attachment G
Planning Commission Staff Report (August 19, 2021)
(Available online due to bulk)
www.newportbeachca.gov/8192021 PCMEETING
16-224
Attachment H
Planning Commission Resolution No. 2021-024 (Attachments Omitted)
16-225
RESOLUTION NO. PC2021-024
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA RECOMMENDING THE
CITY COUNCIL CERTIFY ENVIRONMENTAL IMPACT REPORT
NO. ER2021-002 (SCH NO. 2020110087), APPROVE GENERAL
PLAN AMENDMENT NO GP2020-001, ZONING CODE
AMENDMENT NO. CA2020-008, PLANNED COMMUNITY
DEVELOPMENT PLAN NO. PC2020-001, MAJOR SITE
DEVELOPMENT REVIEW NO. SD2020-001, TENTATIVE TRACT
MAP NO. NT2020-001, AND DEVELOPMENT AGREEMENT NO.
DA2020-001 FOR A 28 -UNIT
DEVELOPMENT AND RESCIND
THE PROPERTY LOCATED AT
(PA2020-020)
MULTI -FAMILY RESIDENTIAL
USE PERMIT NO. UP1461 FOR
150 NEWPORT CENTER DRIVE
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Newport Center Anacapa Associates, LLC. ("Applicant"), with
respect to property located at 150 Newport Center Drive and legally described in Exhibit
"A," which is attached hereto and incorporated herein by reference ("Property").
2. The Applicant requests approval to demolish an existing 2,085 -square -foot car wash,
convenience market, and gas station to accommodate the development of a four (4) -story
structure consisting of 28 condominium units and common space amenity areas over a
two (2) -level below -grade parking garage ("Project"). The following discretionary approvals
are requested:
• General Plan Amendment No. GP2020-001 — to change the Property's land use
designation from Regional Commercial Office (CO -R) to Multiple Residential (RM) and
create a new Anomaly Location for the Property that authorizes a maximum
development density of 28 dwelling units;
• Zoning Code Amendment No. CA2020-008 — to change the site's zoning classification
from Office Regional (OR) to Planned Community (PC) District;
• Planned Community Development Plan No. PC2020-001 - to establish land uses and
development standards for the Property. In order to establish a planned community
development plan, a waiver of the minimum site area of 10 acres of developed land is
necessary;
• Major Site Development Review No. SD2020-001 — to allow for the development of a
four (4) -story structure containing 28 luxury condominium units and common space
areas over a two (2) -level below -grade parking garage;
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Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential condominium
subdivision map on the 1.26 -acre Property that would allow each unit to be sold
individually;
Development Agreement No. DA2020-001 — to provide the Applicant with the vested
right to develop the Project subject to the rules and regulations in effect at the time of
Project approval and to provide the City with assurance that certain obligations of the
Applicant will be met, including public benefit fees;
Environmental Impact Report No. ER2021-002 (EIR) - to disclose reasonably
foreseeable environmental impacts resulting from the legislative and project specific
discretionary approvals, the City has determined that an Initial Study and Environmental
Impact Report are warranted for this project pursuant to California Public Resources
Code Section 23000 et seq. ("CEQA"), Title 14, Division 6, Chapter 3 of the California
Code of Regulations ("CEQA Guidelines"), and City Council Policy K-3; and
• Rescind Use Permit No. UP1461 — rescind use permit since the Project will replace
the operation of a car wash on-site.
3. The Property is designated Regional Commercial Office (CO -R) by the City of Newport
Beach General Plan ("General Plan") Land Use Element and is located within the Office
Regional (OR) Zoning District.
4. The Property is not located within the coastal zone.
5. The Planning Commission held a public hearing on August 19, 2021 in the Council
Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose
of the hearing was given in accordance with California Government Code Section 54950
et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development Agreements), 19.12
(Tentative Map Review), 20.62 (Public Hearings) of the Newport Beach Municipal Code
("NBMC"). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
A draft Environmental Impact Report ("DEIR") (SCH No. 2020110087) set forth Exhibit
"B," which is attached hereto and incorporated herein by reference, has been prepared
in compliance with CEQA, CEQA Guidelines, and City Council Policy K-3.
2. The DEIR was circulated for a 45 -day comment period beginning on April 29, 2021 and
ending on June 13, 2021. The DEIR, comments, and responses to the comments ("Final
EIR/FEIR") were considered by the Planning Commission in its review of the Project.
3. On the basis of the entire environmental review record, the Project, with mitigation
measures, will have a less than significant impact upon the environment and there are
no known substantial adverse effects on human beings that would be caused.
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Additionally, there are no long-term environmental goals that would be compromised by
the Project, nor cumulative impacts anticipated in connection with the Project. The
mitigation measures identified and incorporated in the Mitigation Monitoring and
Reporting Program ("MMRP") set forth Exhibit "C," which is attached hereto and
incorporated herein by reference, are feasible and will reduce the potential
environmental impacts to a less than significant level.
4. The Planning Commission finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages which
may be awarded to a successful challenger.
SECTION 3. REQUIRED FINDINGS.
General Plan and Zoning Code Amendments
1. Amendments to the General Plan and Title 20 (Planning and Zoning) are legislative acts
and neither the NBMC, including Chapter 20.56 (Planned Community Development
District Procedures) of Title 20 (Planning and Zoning) of the NBMC, nor the State of
California including Article 2 (Adoption of Regulations) of Chapter 4 (Zoning
Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of
the California Government Code set forth any required findings for either approval or
denial of amendments to the NBMC.
2. General Plan Amendment No. GP2020-001 and the resulting land use change are
compatible with the existing surrounding uses and planned land uses identified by the
General Plan, because the Project would introduce additional residential land uses in
Newport Center which includes a diverse mix of land uses. Additionally, even with the
conversion from CO -R to RM, the building will be compatible with adjacent commercial
properties in terms of bulk, scale, setbacks, architectural style, and pedestrian
connectivity. Additional residential development would support commercial properties
within Newport Center such as Fashion Island.
3. General Plan Amendment No. GP2020-001 from CO -R to RM does not eliminate
existing or future land uses to the overall detriment of the community given the site's
size, location, and surrounding uses. Maintaining the Property's CO -R land use
designation would require redevelopment or major improvements to the Property to
accommodate other commercial uses.
4. General Plan Amendment No. GP2020-001 and the resulting land use change are
consistent with applicable land use policies of the General Plan. In -keeping with General
Plan Policy LU 6.14 (Newport Center), the Property is located in an area of Newport
Center where multi -family uses are encouraged to produce opportunities to live close to
jobs, commerce, entertainment, and recreation. Consistent with General Plan Policy LU
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3.3 (Opportunities for Change), the project would provide opportunities for improved
development and enhanced environments for residences in the Fashion Island/Newport
Center area and add 28 condominium units in proximity to jobs, and services. Further,
the project would not increase the amount of office uses in the area.
5. The size, density and character of the proposed dwelling units complement the existing
land uses in the project area and include design elements consistent with Land Use
Element Policy 5.1.9 (Character and Quality of Multi -Family Residential) that require
multi -family dwellings to be designed to convey a high-quality architectural character.
Consistent with General Plan Policy LU 6.2.1 (Residential Supply), the provision of 28
dwelling units on the site would accommodate Newport Beach population needs
identified in the General Plan Housing Element and accommodate market demand for
residential uses.
6. The Property is located in an area of the City that has sufficient utilities systems to serve
the Project.
7. Council Policy A-18 requires that proposed General Plan amendments be reviewed to
determine if a vote of the electorate would be required pursuant to Section 423 of the
City Charter (known as "Green light"). If a General Plan Amendment (separately or
cumulatively with other GPAs within the previous 10 years) generates more than 100
peak hour trips (a.m. or p.m.), adds 40,000 square feet of non-residential floor area, or
adds more than 100 dwelling units in a statistical area, a vote of the electorate would be
required if the City Council approves the GPA.
8. The Project is the third General Plan Amendment in Statistical Area L1 within the last
10 years, including the approved Newport Beach Country Club Clubhouse (PA2008-
152) and Vivante Senior Housing (PA2018-185) projects. The proposed amendment
results in 28 additional dwelling units and there is no change in the square footage of
non-residential floor area. The 28 additional dwelling units result in a net increase of 3.3
a.m. peak hour trips and 2.3 p.m. peak hour trips based on the commercial blended trip
rate (for existing uses) and High -Rise Residential Condominium/Townhouse trip rate for
the proposed use, as provided in Council Policy A-18. Therefore, the Project individually
does not exceed the Greenlight thresholds. Furthermore, including 80 percent of prior
General Plan amendments from the last 10 years with the proposed project (i.e.
cumulative analysis), results in a total increase of 16,800 square feet of nonresidential
floor area, 25 a.m. peak hour trips, 44 p.m. peak hour trips, and 100 residential dwelling
units for Statistical Area L1. As none of the thresholds specified by Charter Section 423
are exceeded, no vote of the electorate is required if the City Council chooses to approve
General Plan Amendment No. GP2020-001.
9. The proposed PC -57 (Residences at Newport Center Planned Community) District
meets the intent and purpose for a PC as specified in NBMC Section 20.56.010 (Planned
Community District Procedures, Purpose) given its location in the Newport Center area
which includes a mixture of shopping, hotels, commercial support uses, professional
offices, and residential developments that cumulatively contain the ingredients of a
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Planning Commission Resolution No. PC2021-024
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planned community. The proposed PC District adds to this diversity assisting the City in
larger scale community planning.
10. The proposed PC -57 (Residences at Newport Center Planned Community) Zoning
District would establish appropriate site and project specific setbacks, density, and
height limits to the Property given the site's urban location. All required parking is
provided on-site. The site is fully developed and does not support any natural resources
and all potential environmental impacts associated with the project are appropriately
addressed through standard building permit procedures, conditions of approval, and the
mitigation measures identified in the Environmental Impact Report and contained in the
Mitigation Monitoring and Reporting Program.
11. The future development of the Property affected by the proposed amendments will be
consistent with the goals and policies of the Land Use Element of the General Plan; and
will be consistent with the purpose and intent of the proposed Residences at Newport
Center Planned Community (PC) Zoning District of the NBMC.
12. A voluntary development agreement has been requested by the Applicant as the Project
would add new residential dwelling units within Statistical Area L1 (Newport Center).
The Development Agreement includes all the mandatory elements for consideration and
public benefits that are appropriate to support conveying the vested development rights
consistent with the General Plan, NBMC, and Government Code Section 65864 et seq.
Site Development Review
A site development review is required for the construction of five (5) or more residential units
processed in conjunction with a tentative tract map. The site development review analyzes the
project as a whole for compatibility with the site and surrounding land uses. In accordance with
Section 20.52.080(F) (Site Development Review) of the NBMC, the following findings and facts
in support of a site development review are set forth:
Finding:
A. Allowed within the subject Zoning district,-
Fact
istrict,
Fact in Support of Finding:
The proposed Site Development Review for a 28 -unit condominium project is consistent
with the proposed Planned Community Development Plan that allows 28 residential
units.
Finding:
B. In compliance with all of the applicable criteria in [NBMC Subsection
20.52.080(C) (2) (c)]:
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i. Compliance with this Section, the General Plan, this Zoning Code, any applicable
specific plan, and other applicable criteria and policies related to the use or
structure;
ii. The efficient arrangement of structures on the site and the harmonious
relationship of the structures to one another and to other adjacent development;
and whether the relationship is based on standards of good design;
iii. The compatibility in terms of bulk, scale, and aesthetic treatment of structures on
the site and adjacent developments and public areas;
iv. The adequacy, efficiency, and safety of pedestrian and vehicular access,
including drive aisles, driveways, and parking and loading spaces;
V. The adequacy and efficiency of landscaping and open space areas and the use
of water efficient plant and irrigation materials; and
vi. The protection of significant views from public right(s)-of-way and compliance
with [NBMC] Section 20.30. 100 (Public View Protections); and
Facts in Support of Finding:
Refer to Facts 1 through 12 under General Plan and Zoning Code Amendments, above
that discuss the Project's consistency with the proposed Multiple -Unit Residential (RM)
General Plan land use designation and the PC -57 (Residences at Newport Center
Planned Community Development Plan) Zoning District.
2. The building's material palate consists of neutral stone and glass building fagade
compatible with the surrounding development in Newport Center. The design will
complement, enhance, and be compatible with the adjacent retail and office properties.
The exterior will be comprised predominantly of stone base, stone cladding, metal
finishes and glass. Massing offsets, variations of roof line, varied textures, recesses,
articulation, and design accents on the elevation are integrated to enhance the
expression of a contemporary architectural style.
3. The 28 -dwelling -unit Project has been designed as a four (4) -story building structure
with two (2) enclaves that provide for effective private open space, light, and air for each
unit. The Project is integrated as a unified development through the use of similar
architectural style and design elements, on-site parking, and adequate vehicular and
pedestrian circulation with adjacent properties.
4. The proposed setbacks along each street frontage are appropriate to support pedestrian
connectivity within Newport Center and reduce the appearance of bulk. All entry level
residential units are oriented toward adjacent streets to maximize the pedestrian
relationship of the development to the surrounding Newport Center area. The street
setbacks are consistent with surrounding zoning districts and afford a greater interface
with the adjacent rights-of-way to ensure compatibility with the pedestrian environment.
5. The proposed patios along Newport Center Drive have been set back from the property
line and create visual interest and modulation of form for pedestrians and motorists
along Anacapa Drive. The patio walls include solid and glass elements to reduce the
appearance of bulk, and the series of small retaining planter walls create a gradation of
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Planning Commission Resolution No. PC2021-024
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height from the sidewalk up to the residential units. Private terraces are provided on the
upper floors, in varying locations to create visual interest and provide additional building
articulation through the use of functional outdoor areas.
6. The height, bulk, and scale of the residential building are comparable to height limits on
surrounding properties and existing building heights in the southern half of Newport
Center. The building is designed to provide variation and modulation between the two
main buildings for visual interest and relief. The front fagades include both vertical and
horizontal off -sets and utilize a variation of building materials to provide enhanced visual
relief. The massing of the Project is broken up into two (2) distinct mid -rise structures,
breaking up building massing.
7. Mechanical equipment for the residential units has been located within the parking
garage as well as enclosures at the roof level to reduce noise impacts and minimize
aesthetic impacts. The rooftop equipment, stairways, and elevator overrun are located
in the center of the roof to reduce the appearance of bulk and height.
8. The Project has been designed to avoid conflicts among uses, such as noise, vibration,
lighting, odors, and similar impacts. The podium wall provides a buffer between the
proposed residential units and the adjacent commercial development to the south and
west of the Property and is designed to maintain privacy and protection for the residential
tenants.
9. Walkways and egress are sufficient throughout the site as reviewed by the Building
Division and the City Traffic Engineer. Existing pedestrian easements will be maintained
at an appropriate width along the southern property line and along Anacapa Drive to
ensure adequate access across the site.
10. Pursuant to Title 20 (Planning and Zoning) of the NBMC, the Project provides the
required 56 parking spaces for the residences, 14 residential guest or employee parking
spaces, and 12 surplus spaces. All of the parking is provided on-site within the
assigned/private residential two (2) -car garages and open guest parking stalls.
11. On-site circulation, project access, and parking areas are designed to provide standard -
sized parking spaces, minimum 26 -foot -wide (two [2] -way) driveways, and the minimum
vehicle turning radius to provide adequate access for residents and guests (including
accessible parking stalls), emergency vehicles, delivery trucks, and refuse collections
vehicles, as determined by the City Traffic Engineer.
12. The Project does not change any street parking configurations, as there is no street
parking provided on Anacapa Drive or Newport Center Drive adjacent to the site. The
recently constructed bike lane on Anacapa Drive would not be impacted as part of the
Project. The site design provides two (2) new curb cuts with guest ingress and egress
access from Anacapa Drive. The Project utilizes an existing driveway at the south of the
Property for primary resident access. The Project provides adequate sight distance at
each driveway, as determined by the City Traffic Engineer.
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13. Substantial landscaping is provided throughout the site in areas that are not utilized by
the residential units or areas for parking circulation. All setback areas are landscaped.
A variation of ornamental groundcover, vines, shrubs, and trees are utilized to help
soften and buffer the massing of the condominium units and podium at ground level. In
particular, landscaping buffers have been provided along the western property line to
screen the pool area for the residents and soften the appearance of the podium wall
from the Gateway Plaza parking lot.
14. New street trees are proposed along Anacapa Drive and will be subject to the review of
the Municipal Operations Division.
15. The Project is subject to the City's Water -Efficient Landscape requirements (NBMC
Chapter 14.17) and compliance will be confirmed at plan check prior to the issuance of
building permits.
16. The proposed residential development provides a series of common outdoor living areas
that include a private dog run, entry court, and pool area. The units include terraces and
patios for private outdoor space.
17. In the viewshed of the Pacific Ocean as seen from Civic Center Park, the Property is
partially visible. However, the Project is mostly blocked from view by intervening
structures. The Project would appear lower in profile than the horizon ocean view. As
analyzed in the Draft EIR, implementation of the Project would have a less than
significant impact on scenic ocean views.
18. The Project is not visible from the General Plan designated Coastal View Roads
including MacArthur Boulevard or Avocado Avenue, where the public is afforded views
of the Pacific Ocean. Additionally, the Project would not be visible from the segment of
Newport Center Drive that is designated a Coastal View Road, as views are towards the
ocean in the opposite direction of the Property.
Finding:
C. The proposed development is not 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 or working
in the neighborhood of the proposed development.
Facts in Support of Finding:
1. The Project has been designed to ensure that potential conflicts with surrounding land
uses are minimized to the extent possible to maintain a healthy environment for both
businesses and residents by providing an architecturally pleasing project with
articulation and building modulations to enhance the urban environment consistent with
development in Newport Center.
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2. Emergency vehicles would stage along Anacapa Drive. The staging area will be marked
for exclusive use by the Fire Department.
3. The proposed building has been designed to accommodate and provide access for
delivery trucks, moving trucks, and refuse collections vehicles, as determined by the
City Traffic Engineer. Delivery trucks will primarily utilize the guest entry off of Anacapa
Drive, while refuse collections vehicles will load trash via a scout truck along the south
driveway. The trash collectors may also roll out the trash containers in lieu of a scout
truck. Larger deliveries or moving vans may utilize the on-site loading area near the
parking garage entry. The Project includes the provision of freight elevators to ensure
that residents can safely move in and staff can adequately service the building.
4. The size, design, location, and screening of the refuse enclosures will comply with the
requirements of NBMC Section 20.30.120 (Solid Waste & Recyclable Materials
Storage), ensuring compatibility with the on-site and adjacent uses.
5. The Project is forecasted to generate a maximum of 152 average daily trips, using the
Multifamily Housing (Mid -Rise) (3-10 floors) ITE land use (ITE 221). The existing use
generates 819 average daily trips and the proposed development results in a reduction
of average daily traffic trips pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of
the NBMC ("TPO") methodology. Therefore, a traffic study pursuant to the TPO is not
required.
6. The Project is subject to the City's Outdoor Lighting requirements contained within
NBMC Section 20.30.070. A preliminary photometric plan has been provided and a final
photometric plan will be required as a condition of approval prior to building permit
issuance.
7. Mechanical equipment for each unit is fully enclosed within the parking garage or within
the roof -top equipment screen and is not visible from the public right-of-way.
8. The new construction would comply with all Building, Public Works, Fire Codes, City
ordinances, and all conditions of approval.
Tentative Tract Map
A tentative tract map is requested to allow the proposed 28 dwelling units to be sold individually
as condominiums. In accordance with NBMC Section 19.12.070 (Required Findings for Action
on Tentative Maps), the following findings and facts in support of a tentative tract map are set
forth:
Finding:
D. That the proposed map and the design or improvements of the subdivision are
consistent with the General Plan and any applicable specific plan, and with the
applicable provisions of the Subdivision Map Act and the City Subdivision Code.
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Facts in Support of Finding:
Refer to Facts 1 through 12 under General Plan and Zoning Code Amendments, above,
that discuss the Project's consistency with the proposed Multiple -Unit Residential (RM)
General Plan land use designation.
2. The Tentative Tract Map provides a cohesive development with a pattern of dwelling
unit orientations and vehicle circulation that provides a pedestrian -friendly environment
with strong connectivity to adjacent commercial and office areas.
3. The Public Works Department has reviewed the proposed tentative map and found it
consistent with Title 19 (Subdivisions) of the NBMC and applicable requirements of the
Subdivision Map Act as set forth in California Government Code Section 66410 et seq.
4. Conditions of approval have been included to ensure compliance with Title 19
(Subdivisions) of the NBMC.
Finding:
E. That the site is physically suitable for the type and density of development.
Facts in Support of Finding:
The Property has a gentle sloping condition and the building design accommodates this
slope with a podium wall at the south and west edge and larger building setbacks above
the podium. The site is not located in a flood zone. The geotechnical feasibility study
and geotechnical report will provide additional recommendations for construction of the
Project to ensure the suitability for the proposed development that will be required for
construction prior to the issuance of building permits.
2. The 1.26 -acre site is large enough to accommodate 28 units while providing sufficient
landscape setbacks, open space areas, as well as vehicle access and guest parking
areas that meet applicable standards. The existing developed site is devoid of natural
resources and it is located in an area that provides adequate access to roadways and
utilities.
3. The General Plan estimates that future traffic noise exposure will be 65 dB CNEL to the
nearest residential facades on Newport Center Drive and identifies that residential uses
are normally compatible or compatible with noise insulation features included in the
design. With appropriate noise control measures under conventional construction and
design of the Project (e.g., closed windows, fresh air supply systems or air conditioning),
the interior noise levels comply with the City and State interior noise standard of 45 dB
CNEL for residential units.
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Finding:
F. That the design of the subdivision or the proposed improvements are not likely to cause
substantial environmental damage nor substantially and avoidably injure fish or wildlife
or their habitat. However, notwithstanding the foregoing, the decision-making body may
nevertheless approve such a subdivision if an environmental impact report was
prepared for the project and a finding was made pursuant to Section 21081 of the
California Environmental Quality Act that specific economic, social, or other
considerations make infeasible the mitigation measures or project alternatives identified
in the environmental impact report.
Facts in Support of Finding:
Under existing conditions, the Property and surrounding land areas are fully developed
with urban uses and do not contain sensitive biological resources. The vegetation that
occurs on-site is ornamental in nature, including trees and ornamental shrubs,
groundcover, and vines growing on the existing building's facades and screen walls. A
Mitigation Measure is provided in the MMRP to ensure adequate protection of nesting
birds during the construction process.
2. No drainages traverse the property and no potential jurisdictional waters or wetlands
areas are present on or immediately adjacent to the Property.
3. An environmental impact report (SCH No. 2020110087) was prepared for the Project.
On the basis of the entire environmental review record, the Project will have a less than
significant impact upon the environment with the incorporation of mitigation measures
for biological resources, cultural resources, geology and soils, and tribal cultural
resources. The mitigation measures identified in the DEIR are feasible and reduce
potential environmental impacts to a less than significant level. The mitigation measures
are applicable to the project through the MMRP.
Finding:
G. That the design of the subdivision or the type of improvements is not likely to cause
serious public health problems.
Facts in Support of Finding:
At full build -out, air quality and Green House Gas ("GHG") emissions associated with
construction of the Project will be less than significant, as documented in the DEIR.
2. Mitigation measures identified in the DEIR reduce potential impacts associated with
biological resources, cultural resources, geology and soils, and tribal cultural resources
to a level that is less than significant.
3. No evidence is known to exist that would indicate that the planned subdivision pattern
will generate any serious public health problems.
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4. All construction for the Project complies with Building, Public Works, and Fire Codes.
Public improvements will be required of the developer per NBMC Section 19.28.010 and
Sections 66410 et seq. of the Subdivision Map Act. All ordinances of the City and all
conditions of approval will be complied with.
Finding:
H. That the design of the subdivision or the type of improvements will not conflict with
easements, acquired by the public at large, for access through or use of, property within
the proposed subdivision. In this connection, the decision-making body may approve a
map if it finds that alternate easements, for access or for use, will be provided and that
these easements will be substantially equivalent to ones previously acquired by the
public. This finding shall apply only to easements of record or to easements established
by judgment of a court of competent jurisdiction and no authority is hereby granted to
the City Council to determine that the public at large has acquired easements for access
through or use of property within a subdivision.
Facts in Support of Finding:
Public improvements, consisting of the reconstruction of the curb, gutter, and sidewalks,
two (2) new driveways along the Anacapa Drive frontage, and street trees along
Anacapa Drive will be required of the applicant per Title 19 (Subdivisions) and the
Subdivision Map Act. A common sewer and water connection will be provided for the
Project as approved by the Public Works Department that will connect to an existing
main in Anacapa Drive.
2. The tract map will reduce the width of the existing 18 -foot -wide private walkway
easement at the south edge of the site to 10 feet in width to accommodate the location
of new structures as part of the development. Pedestrian access would continue to be
provided via a sidewalk along the front of the parking structure within the private
easement. The design of the development will not conflict with any easements acquired
by the public at large for access through or use of property within the proposed
development.
3. The tract map will maintain the existing 3 -foot -wide public sidewalk easement at the east
edge of the site along Anacapa Drive. An encroachment permit and agreement shall be
required for the proposed low stone signage wall located within the sidewalk easement.
The Project includes the reconstruction of the existing 6 -foot -wide sidewalk.
Finding:
That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map Act,
if the land is subject to a contract entered into pursuant to the California Land
Conservation Act of 1965 (Williamson Act), the resulting parcels following a subdivision
of the land would not be too small to sustain their agricultural use or the subdivision will
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result in residential development incidental to the commercial agricultural use of the
land.
Fact in Support of Finding:
1. The Property does not contain prime farmland, unique farmland, or farmland of
statewide importance and no portion of the Property is covered by a Williamson Act
contract.
Finding:
J. That, in the case of a "land project" as defined in Section 11000.5 of the California
Business and Professions Code: (a) there is an adopted specific plan for the area to be
included within the land project, and (b) the decision-making body finds that the
proposed land project is consistent with the specific plan for the area.
Fact in Support of Finding:
1. California Business and Professions Code Section 11000.5 has been repealed by the
Legislature. However, this Property is not considered a "land project" as previously
defined in Section 11000.5 of the California Business and Professions Code because
the Property does not contain 50 or more parcels of land nor is it located within the
boundaries of a specific plan.
Finding:
K. That solar access and passive heating and cooling design requirements have been
satisfied in accordance with Sections 66473.1 and 66475.3 of the Subdivision Map Act.
Fact in Support of Finding:
1. Tentative Tract Map No. NT2020-001 and improvements are subject to Title 24 of the
California Code of Regulations, referred to as the California Building Code or CBC,
which requires new construction to meet minimum heating and cooling efficiency
standards depending on location and climate. The Newport Beach Community
Development Department ensures compliance with the CBC through the plan check and
inspection process.
Finding:
L. That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act and
Section 65584 of the California Government Code regarding the City's share of the
regional housing need and that it balances the housing needs of the region against the
public service needs of the City's residents and available fiscal and environmental
resources.
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Fact in Support of Finding:
The Property is improved with commercial uses, and there are no residential units on
the Property. The Project includes the construction of 28 new condominium units to
contribute to the City's population needs, and 28 units above what is planned for within
the General Plan. The Applicant will be responsible for the payment of appropriate fair
share traffic fees, San Joaquin Transportation Corridor fees, in -lieu park fees, and
development agreement fees for the construction of these new dwelling units as
conditions of approval.
Finding:
M. That the discharge of waste from the proposed subdivision into the existing sewer
system will not result in a violation of existing requirements prescribed by the Regional
Water Quality Control Board.
Facts in Support of Finding:
A National Pollutant Discharge Elimination System ("NPDES") permit is required from
the Regional Water Quality Control Board ("RWQCB") for the proposed construction
activities. A permit is required for all construction activities that include clearing, grading,
and/or excavation that disturb at least 1 acre of total land area. Additionally, a
Preliminary Water Quality Management Plan ("WQMP") has been prepared, pursuant to
the requirements of the NPDES permit.
2. Compliance with the NPDES permit and the Santa Ana River Basin Water Quality
Control Program involves the preparation and implementation of a stormwater pollution
prevention plan ("SWPPP") for construction -related activities, which would specify the
Best Management Practices ("BMP") that the Project would be required to implement
during construction activities to ensure that all potential pollutants of concern (including
sediment) are prevented, minimized, and/or otherwise appropriately treated prior to
being discharged from the Property.
3. Sewer connections will be installed per City Standards, the applicable provisions of
NBMC Chapter 14.24 (Sewer Connection, Permits), and the latest revision of the
Uniform Plumbing Code.
4. There is adequate sewer system capacity to serve the requirements of the Project. The
Project is able to tie into the existing sewer system without adversely affecting the
system, causing any water quality affects, or violating existing requirements prescribed
by the Regional Water Quality Control Board. Wastewater from the Project will be
generated by the residential users. There will be a reduction in wastewater from the site
with the demolition of the existing car wash and construction of the proposed dwelling
units.
5. NBMC Section 14.24.020 (Dwelling Unit and Business Structure Sewer Connection
Required) requires each dwelling unit to maintain individual water meter and sewer
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connections. The Project has received a waiver of this requirement from the Utilities
Director since the units are located in one (1) building and will together connect to the
existing water and sewer systems.
Finding:
N. For subdivisions lying partly or wholly within the Coastal Zone, that the subdivision
conforms with the certified Local Coastal Program and, where applicable, with public
access and recreation policies of Chapter Three of the Coastal Act.
Fact in Support of Finding:
1. The Property is not located within the Coastal Zone.
Rescission
Rescission of Use Permit No. UP1461 is requested for the existing car wash on site. In
accordance with NBMC Section 20.68.050 (Review Authority's Action), the following finding
and fact in support of the revocation are set forth:
Finding:
O. The permit or approval was issued in error or circumstances under which the permit or
approval was granted have been modified to an extent that one or more of the findings
that justified the original approval can no longer be made and the public health, safety,
and welfare require the revocation or modifications.
Fact in Support of Finding:
1. The entitlements authorized by this resolution would create a change in circumstances
(General Plan amendment to RM) under which the site will no longer be improved with
the infrastructure to accommodate a car wash use as authorized under Use Permit No.
UP1461.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby recommends the following
to the City Council:
a. Certify the Environmental Impact Report No. ER2021-002 (SCH No. 20200110087)
and Mitigation Monitoring and Reporting Program attached as Exhibits "B" and "C";
b. Approve General Plan Amendment No. GP2020-001 attached as Exhibit "D";
c. Zoning Code Amendment No. CA2020-008 attached as Exhibit "E";
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d. Planned Community Development Plan No. PC2020-001 attached as Exhibit "F";
e. Development Agreement No. DA2020-001 attached as Exhibit "G";
f. Tentative Tract Map No. NT2020-001 subject to the conditions of approval attached in
Exhibit "I" and map depicted in Exhibit "H";
g. Major Site Development Review No. SD2020-001 with conditions of approval attached
as Exhibit "I"; and
2. Rescind Use Permit No. 1461, which upon vesting of the rights authorized by this
approval, shall become null and void. Upon vesting of the rights authorized by above
approvals, all prior existing use permits Use Permit No. 1461 shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 19TH DAY OF AUGUST, 2021.
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene, and Weigand
NOES:
ABSTAIN:
ABSENT:
Curtis Ellmore, Secretary
Attachment(s): Exhibit A — Legal Description
Exhibit B — Environmental Impact Report EIR SCH No. 2020110087
Exhibit C — Mitigation Monitoring Report Program
Exhibit D — General Plan Land Use Map Amendment
Exhibit E — Zoning Map Amendment
Exhibit F — PC -57 Residences at Newport Center Planned Community
Development Plan
Exhibit G — Development Agreement
Exhibit H — Tentative Tract Map
Exhibit I — Conditions of Approval
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