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Home My WebLink About10 - Uptown Newport Planned Community - CorrespondenceJackson DeMarco I Tidus 2-2 -13 Peckenpaugh A L A W C O R P O R A T I O N February 18, 2013 Direct Dial: 949.851.7607 Email: gpowers @jdtplaw.com Reply to: Irvine Office File No: 6655.100442 VIA EMAIL (RUne(inewportbeachea.gov) AND OVERNIGHT MAIL Rosalinh M. Ung, Associate Planner City of Newport Beach m 3300 Newport Boulevard Newport Beach, CA 92663 `•, '` ° FITI Q Re: Airport Land Use Commission Overrule (Uptown Newport) 1 Dear Ms. Ung: We represent Uptown Newport LP ( "Uptown ") in connection with its development application to construct up to 1,244 residential dwelling units, 11,500 square feet of commercial space, and two acres of parkland ( "Project ") at property generally located at 4311 -4321 Jamboree Road ( "Project ") in the City of Newport Beach ("City"), The Project's zone change application required the City to refer the Project to the Orange County Airport Land Use Commission ( "ALUC ") for a determination of consistency with the Airport Environs Land Use Plan ( "AELUP ") for John Wayne Airport ( "JWA "). The Project has been designed for consistency with City code requirements and the AELUP requirements. ALUC staff recommended a finding of consistency for the Project and suggested conditions of approval for the Project. Uptown accepted those conditions and has incorporated them into the Project. Nevertheless, on October 18, 2012, the ALUC voted to find the Project inconsistent with the AELUP. On January 10, 2013, the City notified the ALUC of the City's intent to overrule the ALUC's inconsistency finding. On or about February 5, 2013, the City received a response from ALUC Chairman Gerald Bresnahan (the `Bresnahan Letter "). The purpose of this letter is to respond to the Bresnahan Letter and reiterate the Project's consistency with the State Aeronautics Act (Pub. Util. Code, §§ 21001 et seq. (the "Act ")). The purpose of the Act is to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and adopting land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports, to the extent the areas are not already devoted to incompatible uses. (Act, § 21670.) The AELUP provides development guidance to ensure actions are consistent with the Act's purpose. The Project has Irvine Office I Westlake Village Office 2030 Main Street, Suite 1200 2815 Townsgate Road, Suite 200 www.jdtplaw.com Irvine, California 92614 Westlake Village, California 91361 1949.752.8585 f 949.752.0597 t 805.230.0023 f 805.230.0087 February 18, 2013 Page 2 been developed for consistency with the Act and AELUP by using AELUP standards to minimize exposure to excessive noise and safety hazards. The Property is located in an AELUP safety compatibility zone that permits residential and nonresidential uses. The Project is in conformance with AELUP approved FAR Part 77 height restrictions. The AELUP provides ALUC with the ability to rely on a different height criteria if there is "evidence of health, welfare, or air safety ... sufficient to justify such an action." (AELUP, § 2.1.3.) There is no such evidence in the record, nor was there at the time the ALUC made its inconsistency determination. The Letter states that Project may put general aviation operations and future residents at risk. The statement is unsupported by the record and contrary to the FAA Determination of No Hazard ( "Determination "). This Determination was issued while the Project contained three building points identified as penetrating the imaginary surfaces. The FAA concluded that even with these three building points, the Project would not result in any significant adverse effect on the aeronautical operations or on the utility of the navigable approach and departure Terminal Procedures for JWA. Since that time, the building heights have been lowered below the threshold used by the FAA and relied on as the "only definitive standard available and the standard most generally used." (AELUP, § 2.1.3.) AELUP Section 3.2.6 states that any object that interferes with the established, planned airport flight procedures, patterns; or navigational systems is unacceptable to ALUC. The Determination states the Project structures "would have no effect on any existing or proposed [Instrument Flight Rules or Visual. Flight Rules] arrival/departure routes, operations, or procedures.... The structure would have no effect on any existing or proposed [Instrument Flight Rules] minimum flight altitudes.... The structure would not penetrate those altitudes normally considered available to airmen for [Visual Flight Rules] en route flight." The FAA concluded that existing obstacles and terrain already control development of future instrument approach and departure procedures for JWA. Similarly, the Letter indicates the surrounding area is already devoted to incompatible uses, but states the cumulative effect of more tall buildings may cause additional approach/departure modifications and lead to an unsafe operating environment. Notably, the word "may" is used; the Letter provides no indication that airport flight procedures, patterns or navigational systems ' "will" be interfered with. In fact, the Letter acknowledges traffic patterns were modified in the past, but fails to provide any facts or support as to how or why additional modifications will be needed. The Letter makes ALUC's intentions clear; despite consistency findings for the City General Plan and Zoning Code updates allocating residential use and identifying a high rise zone for the Property, ALUC now seeks to prohibit residential use and high rises within the Airport Business Area, even if a project is consistent with standards ALUC adopted to protect the public health, safety, and welfare. February 18, 2013 Page 3 The Letter acknowledges the Project is in conformance with FAR Part 77 height restrictions and states that meeting ALUC's own adopted standards does not mean a project is prudent. If ALUC finds its standards to be unwise, ALUC should consider amending its operating documents and indicate its disapproval to federal regulators. The ALUC relied on AELUP Section 2.1.3 to support its action, but Section 2.1.3 requires evidence of health, welfare or air safety concerns to justify using alternative height restrictions. The ALUC has not put forth this evidence, and the FAA Determination provides otherwise. Thus, we respectfully ask the Council to overrule ALUC's inconsistency finding and determine the Project is consistent with the AELUP and the Act's purposes. We request that a copy of this letter be included in the administrative record for the Project. Please do not hesitate to contact us if you have any questions or need more information. Sincerely, ^ Gregory P. Powers, Esq. cc: Bill Shopoff; President and CEO, The Shopoff Group, L.P.* Brian Rupp, Director of Asset Management, The Shopoff Group, L.P.* *via email only 1132778.3 JOHN S. ADAMS & ASSOCIATES, INC. 5100 BIRCH STREET. NEWPORT BEACH. CALIFORNIA 92660 (949) 8331972 FAX (949) 851 -2055 February 25, 2013 Mr. Michael Henn, Councilmember Mr. Tony Petros, Councilmember Mr. Rush Hill, Councilmember Ms. Leslie Daigle, Councilmember Mr. Edward Selich, Councilmember Ms. Nancy Gardner, Councilmember Mr. Keith Curry, Councilmember City Council of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: Uptown Newport Project Newport Beach, California Dear Council Members: "RECEIVED AFTER AGENDA PRIN'TE -D:" �t /D --.*.2&,(3 I am submitting these comments as President of Courthouse Plaza Association. This association includes 5100, 5120; 5140 and 5160 Birch Street (Courthouse Plaza), a four building office complex located immediately adjacent to the proposed Uptown Newport Project. We are submitting this letter and comments for consideration by the City Council as it reviews the Uptown Newport project. We have had several discussions with the developer of the proposed project. However, we have not been able to resolve several major issues. The following is a summary of some of the major issues we have with the project. 1. Traffic Study: The Traffic Impact Analysis for the project appears to have several deficiencies and as a result the conclusions of the analysis may not be accurate. (see attached peer review by Kurtzman Associates, Inc.) 2. Traffic: The project will create a twelve fold increase in traffic. ID -I w The EIR indicates daily trip generation for this project is as follows: r m �) i, Existing Use: 747 = "' Proposed Total: 9,047 -� Net New Trips: 8;286 rn s _ �o City Council of Newport Beach February 25, 2013 Page 2 The proposed project results in an increase of 8,286 trips, which is a twelve -fold increase. This increase in traffic will significantly impact the ability of Courthouse Plaza tenants to access the Birch Street driveway from the Courthouse Plaza parking lots. This will result in damage to property value. Solution: Reduce trip generation on the Birch Street Easement to the existing levels. This can be accomplished by reducing project density and controlling access at Birch Street. 3. Project Density: Project density appears to exceed the maximum density allowed by the General Plan. The General Plan allows for building density of a minimum of 30 units per net acre and a maximum of 50 units per net acre (see attached Pg. 3 -105 from General Plan). Net acre is defined in the General Plan as sites that can be built on (see attached Pg. 14 -36 from General Plan). The project proposes a total of 1,244 units, by utilizing non - buildable /open space lots (i.e. the lettered lots) for the density calculations. The buildable lots (i.e. the numbered lots) from the Tentative Tract Map total 17.78 acres. Therefore, the maximum density allowed should be 1,200 units (17.78 acres x 50 /acres x 35% density bonus = 1,200 units). The minimum density allowed would be 720 units. Solution: Reduce project density to conform to General Plan requirements. 4. Setbacks and Shadows: Proposed building setbacks adjacent to Courthouse Plaza and Koll Center Newport are only 15 feet. This is significantly less than the surrounding buildings. The project imposes shadows on adjacent buildings. The majority of adjacent buildings in Koll Center Newport are setback approximately 100 to 150 feet from the property lines shared with the project. The project buildings should be required to have similar setbacks. This will minimize the impacts from shading and be more aesthetically compatible with the surrounding business park. Solution: Increase the 15 foot set back from the Courthouse Plaza and Koll Center Newport property line. 5. Noise /Vibration: The project imposes a significant noise and vibration impact on adjacent buildings. The EIR states that vibration levels during Phase 2 will exceed thresholds at the adjacent office buildings to the northeast, which is our Courthouse Plaza project. The EIR states the vibration levels will cause annoyance to the occupants. The impact will be significant on Courthouse City Council of Newport Beach February 25, 2013 Page 3 Plaza. The loud noise and vibration caused during construction will result in lost tenants and reduced rental rates during construction. This will have significant economic impact on the Courthouse Plaza buildings. Solution: Mitigation of this issue should be solved by the developer. Noise and vibration should be reduced to acceptable levels with sound walls or other methods during construction. 6. Construction Traffic: Construction traffic will significantly impact the Bitch Street Easement. The construction of each phase of the project could last several years. This will create significant noise, dust and other issues related to construction traffic. This will have significant economic impact on the Courthouse Plaza buildings. Solution: Require all construction traffic during both phases to be directed to and from Jamboree Road and not allowed to utilize the Birch Street Easement. This was agreed to by the Planning Department (see attached Pg. 390 from agenda documents and attached EIR comments) 7. Birch Street Easement: The project proposes modification and construction on the Birch Street Easement that it does not have the right to construct. In addition, the project attempts to convert a private driveway easement for public traffic use. (see attached letter from Cadden & Fuller) The project proposes the modification and installation of various improvements across the Birch Street Easement and Birch Street frontage. The project developer does not have the right to construct or modify improvements in the easement area. This is a private driveway easement. The developer does not have the right to increase traffic or burden the easement beyond traffic neutral. The proposed project funnels a street system with unlimited public access to apartment, retail stores and public parks through a narrow private driveway easement. The result is an attempt to convert a private driveway for public traffic use. Solution: The project should be considered absent any proposed improvements or modifications on the Birch Street Easement. The Birch Street Easement should not be considered a primary access point for the project. The project should be designed to utilize the two Jamboree Road access points as primary access for the project. This can be accomplished by controlled access at Birch Street. City Council of Newport Beach February 25, 2013 Page 4 In conclusion, the citizens of Newport Beach approved a General Plan that envisioned a mixed - use urban village for the Airport Area based designs for an attractive, integrated, urban village that would be an asset to the Airport Area and the city. The project as proposed is a massive, unimaginative project that appears to be designed, with the intent of maximizing density. The project will result in an isolated high density apartment complex that fails to take advantage of a once in a generation opportunity to provide an asset to the City of Newport Beach. The City Council currently has an opportunity to help shape the proposed project so that it meets the intent of the General Plan. The majority of the issues and impacts created by the proposed project, both technical and aesthetic, can be mitigated significantly by reducing the density of the proposed project. At a lower density, which is consistent with General Plan guidelines, the proposed project will be more likely to provide the benefits to the City of Newport Beach that were envisioned by the General Plan. Sincerely, JOHN S. ADAMS &c ASSOCIATES, INC. L John S. Adams Attached: Peer Review of Traffic Impact Analysis.. General Plan Documents (regarding allowed density) Agenda and EIR documents (regarding construction traffic) Letter from Cadden & Fuller KLlN -7NAA\ AssocIATES, INIC. 0 \'ER 35 YEARS OF ENCELLENT SERVICE February 19, 2013 Mr. Bryan Bentrott DEXUS PROPERTY GROUP 4000 Westerly Place, Suite 100 Newport Beach, CA 92660 Dear Mr. Bentrott: INTRODUCTION The firm of Kunzman Associates, Inc. is pleased to provide this traffic impact analysis peer review of the Traffic Impact Analysis for the Uptown Newport Project prepared by Kimley -Horn and Associates, Inc. (November 2012). The traffic impact analysis generally follows standard practice for the City of Newport Beach and Irvine traffic study guidelines. COMMENT 1 Page 7. Provide a discussion within the body of the text regarding the future road shown on Figure 4. Will this roadway be limited to emergency vehicles only or provide access to the project site from Von Karman Avenue? COMMENT 2 Page 7. The unsignalized project driveway on Jamboree Road should be included in Figure 4 and the Level of Service analysis for all scenarios. It should be noted that the Level of Service worksheet for the intersection is already included in Appendix B for some scenarios. This new project driveway will be limited to right turns in /out and left turns in only from Jamboree Road and the Levels of Service during the peak hours should be included in the traffic study. COMMENT 3 Page 17. The traffic count worksheets are mainly from Year 2011. However, one intersection is from March 2010 (intersection #18). Explain. Traffic counts should be taken within 1 year of the preparation of the traffic study. COMMENT 4 Page 18. Figure 6 should be corrected for the following intersections to be consistent with Appendix B: Intersection #2 — WB free right turn lane Intersection #5 — EB defacto right turn lane 1111 TOWN & CouwRV Rono, SUITE 34 ORANGE CALIFORNIA 9286817141973 -8383 W W W.TRAFFIC- ENGINEER.COkI Mr. Bryan Bentrott DEXUS PROPERTY GROUP February 19, 2013 Intersection #18 — WB left turn lane Intersection #21— EB shared left /right turn lane Intersection #32 — WB through and defacto right turn lane Intersection #42 — NB shared left /right turn lane The existing lane configurations should be the same when comparing the Intersection Analysis Worksheets and the figure showing the existing lane geometrics in the study area. COMMENT 5 Page 21. The Institute of Transportation Engineers (ITE), Trip Generation, 9th Edition, 2012 should be referenced for Tables 2 and 3. The latest trip generation manual should be used in the calculation of the project trips. COMMENT 6 Page 25. The project trip distributions should be separated for residential vs. commercial land uses. Home based trip distribution patterns are not identical to shopping based trip distribution patterns. The separate trip distributions for residential and commercial land uses will result in project traffic volumes that are different from those depicted in the traffic study. COMMENT 7 Pages 26 and 27. The trip distributions should show adequate detail to track the percentages to the project site. The detailed percentages will be necessary before conducting a detailed review of the project traffic volumes close to the project site. COMMENT 8 Page 39. Table 7 shows Levels of Service that are lower for Year 2018 TPO without project conditions vs. existing conditions. Explain. The Levels of Service are typically higher for future traffic conditions from existing traffic conditions, unless further detail is provided to show the reason why Levels of Service during the peak hours would come down in the future. COMMENT 9 Page 45. Project No. 5 is a cumulative project located at the project site. Explain. It appears that a double - counting of trips has occurred for the land uses projected at the location of the proposed development. COMMENT 10 Page 71. Provide an explanation in the body of the report describing why only these freeway mainline segments were analyzed. Typically a threshold is applied to determine which freeway mainline segments are required for analysis within a traffic study. WWW.TRAFFIC- ENGINEER.COM 2 Mr. Bryan Bentrott DEXUS PROPERTY GROUP February 19, 2013 COMMENT 11 Appendix B. Provide explanation for why future traffic volumes are lower than existing traffic volumes (i.e., Intersection fit AM peak hour — existing vs. Year 2018 TPO without project). The traffic volumes are typically higher for future traffic conditions from existing traffic conditions, unless further detail is provided to show the reason why traffic volumes would come down in the future. CONCLUSION Based on the deficiencies noted in the comments above, the traffic study conclusions may not be accurate. It has been a pleasure to service your needs on this project. Should you have any questions or if we can be of further assistance, please do not hesitate to call at (714) 973 -8383. Respectfully submitted, KUNZMAN ASSOCIATES, INC. CAA )J A Carl Ballard, LEED GA Principal Associate #5287 (FESS10yk P1. 3 No. T 005 Z b d TRAFFIC' KUNZMAN ASSOCIATES, INC. William Kunzman, P.E. Principal W W W.TRAFFIC-ENGINEER.COAI 3 Glossar Access —A way of approaching or entering a property, including ingress (the right to enter) and egress (the right to leave). Accrete —To add new material gradually to pre - existing material; opposite. of erode. Accretion — Enlargement of a beach area caused by either natural or artificial means. Natural accretion on a beach is the build -up or deposition of sand or sediments by water or wind. Artificial accretion is a similar build -up due to human activity, such as the accretion due to the construction of a groin or breakwater, or beach fill deposited by mechanical means. Acres, Net—The portion of a site that can actually, he built upon. %The following generally are not included in the net acreage of a site: public or private road right -of -way, public open space, and floodways. ADT See Average Daily'I'raffic Air Basin —One of 14 self - contained regions in California minimally influenced by air quality in contiguous regions. Air Pollutant Emissions— Discharges into the atmosphere, usually specified in terms of weight per unit of time for a given pollutant from a given source. Air Pollution —The presence of contaminants in the air in concentrations that exceed naturally occurring quantities and are undesirable or harmful. Airport- related Business —A use that supports airport operations including, but not limited to, aircraft repair and maintenance, flight instruction, and aircraft chartering. Air Quality Standards —The prescribed level of pollutants in the outside air that cannot be exceeded legally during a specified time in a specified geographical area. WX,� Newport Beach General Plan Land Use Element LU 6.15.7 Overall Density and Housing Types Require that - residential units be developed at a minimum, density. of 30 units and maximum of 50 units per. net acre. averaged over the total area of each residential village. Net acreage shall be exclusive of existing and new rights -of -way, public pedestrian ways, and neighborhood parks. Within these densities, provide for the development of a mix of building types ranging from townhomes to high -rises to accommodate a variety of household types and incomes and to promote a diversity of building masses and scales. flmp 2.1, 3.1, 4.1) LU 6.15.8 First Phase Development Density Require a residential density of 45 to 50 units per net acre, averaged over the first phase for each residential village. This shall he applied to 100percent of properties in the first phase development area whether developed exclusively for residential or integrating service commercial horizontally on the site or vertically within a mixed -use building. On individual sites, housing development may exceed or be below this density to encourage a mix of housing types, provided that the average density for the area encompassed by the first phase is achieved. (Imp 2.1, 3.1, 4.1) LU 6.15.9 Subsequent Phase Development Location and Density Subsequent phases of residential development shall abut the first phase or shall face the first phase across a street. The minimum density of residential development (including residential mixed -use development) shall be 30 units per net acre and shall not exceed the maximurn of 50 units per net acre averaged over the development phase. (Imp 2.1, 3.1, 4.1) STRATEGY ARID PROCESS LU 6.15.10 Regulatory Plans Require the development, of a regulatory plan for each residential village, which shall contain a minimum of 10 acres, to coordinate the location of new parks, streets, and pedestrian ways; set forth a strategy to accommodate neighborhood- serving commercial uses and other amenities; establish pedestrian and vehicular connections with adjoining land uses; and ensure compatibility with office, industrial, and other nonresidential uses. (Imp 2.12 3.1, 4.1, 13.1) Newport Beach General Plan;; ^t�Ji NEWPORT BEACH PLANNING COMMISSION MINUTES 12/20/2012 Chair Toerge noted that the project is not subsidized housing, but rather affordable housing with an appropriate income limit assigned. Regarding the density calculation, Mr. Campbell explained that there is sufficient acreage.to support the proposed density. Mice Chair Hiligren addressed net acreage and Mr. Campbell explained that the lettered tots are paseos and are included in the acreage. He explained that sidewalks and street parcels are not included in the density calculations. Commissioner Ameri commented on net acreage and net buildable areas and addressed the distinctions between the two. Mr. Campbell stated that staff can work with Mr_ Adams to ensure clarity in_the calculations. He also agreed with :adding a,rq.triction relativelo prohibiting; construction traffic duding,phases.1.,and 2 along; the Birch'Street=ess d In response to an inquiry from Commissioner Tucker, City Traffic Engineer Tony Brine stated that he is comfortable that the traffic study was conducted according to TPO and CEQA standards. He addressed the length of the cul-de-sacs and stated he was not aware of a City code that sets the length of cul -de -sacs: Commissioner Amed indicated the standard would be 1,000 feet. Commissioner Tucker commented on property rights and noted that they went through a thorough vetting process and that the density is allowed by the Code. He indicated that the project fits and what the applicant has requested is allowed. He noted that the project was driven by the need for affordable housing in the City and that this is an allowed land use within the City, and the General Plan requires a Development Agreement. Commissioner Tucker noted that the Commission does not have the ability to impose a mitigation on something that has not found to be a significant impact. Chair Toerge addressed zoning and use and that the public voted to allow this kind of development if it complies with all of the requirements of the General Plan and the Zoning Code. Brief discussion followed regarding density. Ms. Brandt reported that the Koll Center Community Development Plan Amendment is included on page 72 of the agenda packet. She added that it is an amendment which deletes the subject property from the zoning regulations so that a new zoning document can be created for it. A straw vote was conducted regarding the Koll Center Newport Planned Community Text amendment and it was considered acceptable, unanimously. Regarding the Uptown Newport Planned Community Development Plan, Ms. Brandt reported it includes three separate components. Commissioner Tucker commented on page 1 of the Land Uses Development Standards & Procedures. Cora Newman, representing the applicant, referenced written comments provided under separate cover for consideration by the Commission. Chair Toerge commented on a number of typographical errors on page 7, addressed existing industrial uses, and provided suggestions for alternative language. Page 6 of 16 ��go 2. Restionse to Comments ��. 01 -5 As stated on page 5.1467, the approach and departure routes for construction (1 vehicles would be via Jamboree Rood. There would be no construction traffic using the Birch Street easement. 01 -6 An analysis was conducted to evaluate vibration impacts during construction at the properties nearest to the project site. Because of proximity, the highest vibraTal4 levels at the Courthouse Plaza would occur during Phase 2 construction. DEIR Table 5.10 -17 shows that the 84 VdB threshold would be exceeded when vibratory rollers operate nearest to the Courthouse Plaza (referred to as 'buildings to the northeast' in the analysis; see Figure 5.10 -6). The operation ai other equipment — including large bulldozers, jackhammers, and loaded trucks —would not generate vibration levels above the thresholds of significance. Although these levels would have the potential to cause annoyance to the occupants of the Courthouse Plaza, vibration dissipates rapidly with distance. As described on page 5.10 -36, vibration from the use of heavy earthmoving equipment would not exceed the thresholds when operating over 100 feet away from a receptor. Vibration equipment moves around the site and is used intermittently; therefore, annoyance caused by vibration generated by construction equipment would be sporadic and short term. As described in page 5.10 -39, because vibration dissipates rapidly with distance and because equipment moves around the site, vibration impacts would be sporadic and short term. Construction noise would potentially cause annoyance to office occupants in areas facing the construction area. Noise levels from the construction of the project are comparable to existing noise levels along Jamboree Road and in the vicinity of the existing TowerJazz building. Noise disturbances would be greatest during Phase 2 of the project and would be intermittent, but could occur for prolonged periods of time. Due to the length of construction activities and the level of noise from the combination of construction activities, project- related construction noise at the nearby office and retail receivers would be significant. Because of the height of the buildings adjacent to the project site, sound walls blocking line of sight between construction activities and nearby noise - sensitive receptors would be infeasible. Uneof -sight variations between existing buildings and proposed buildings preclude the use of sound walls; they would not effectively block sound from the project. Noise impacts during construction would be significant and unavoidable. As summarized above, project - related vibration impacts would be less than significant, and construction - related noise impacts have been determined to be significant and unavoidable. The commenter's concern about potential economic impacts due to short-term construction- related project impacts is acknowledged and will be forwarded to decision makers. Economic issues that do not result in direct or indirect physical environmental impacts are not within the realm of the environmental review under the California Environmental Quality Act. 01 -7 The shade /shadow exhibits provided in DEIR Appendix B illustrate project - related building shadows that would be cast on- and offsite at various times on the days of the year that have the shortest and longest hours of daylight (winter solstice, and summer solstice) as well as equal day and night (fall equinox). Shadow lengths increase during the "low sun or winter season and are longest during the winter solstice (which therefore, represents the worst case for shadow impacts to adjacent Uptrun Newport Final EIK Ciryy of i\reuport Bearb a Page 2 -79 P.ICW- UOCiFCMII.{CZ-,; 101 :.VPM FCADDEN & FULLER LLP 1 1 4 PACIFICA, SUITE 450 a IRVINE, CALIFORNIA 9261 8 TEL (949) 786-0827 • FA% (949) 450-0650 • WWW.CADDENFULLER.COM November 19, 2012 VIA U.S. MAIL. Ms. Rosalinh Ung Associate Planner City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 FILE NUMBER COUO2 -02 Re: Unauthorized Improvements of Easement by Uptown Newport L.P. Dear Ms. Ung: We. represent Courthouse Plaza Association ( "Plaza "). On its behalf, we provide the following analysis pertaining to Uptown Newport L.P.'s ( "Uptown ") Planned Development Plan. By way of background, Plaza owns the common areas of the properties located at 5100, 5120, 5140 and 5160 Birch Street (the "Plaza Parcel ") in the City of Newport Beach (the "City"). Uptown is the beneficiary of a private easement (the "Easement ") over the Plaza Parcel. The Easement provides Uptown "a non - exclusive easement for passage in, over and along the following real property..., including the right to maintain driveways, roadways, sidewalks and passageways on said property." .Plaza has recently received copies of Uptown's plans to develop and make unauthorized improvements to the Easement, including but not limited to, the installation of underground sewer and water lines. This is beyond the scope of Uptown's Easement. Moreover, to the extent. Uptown intends to improve the roadway, it may only do so without increasing the burden on, or unreasonably interfering with, Plaza's use of the servient tenement. A. WHILE UPTOWN MAY MAINTAIN THE SURFACE ROADWAY, IT MAY NOT UNDULY BURDEN (PLAZA WITH ITS REPAIRS AND /OR IMPROVEMENTS. The law pertaining to easements is quite clear. In determining the extent of the servitude, the easement will be determined by the terms of the grant. "If the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired." Van Klompenburb v. Berghold (2005) 126 Cal.App.4`h 345, 349; see Gray v. McCormick (2008) 167 Ca1.App.4111 1019, 1024; Cal. Civ. Code § 806. Ms. Rosalinh Ung November 19, 2012 Page 2 Moreover, an "easement is a restricted right to specific, limited, definable use or activity upon another's property." Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.0 697, 702. "The owner of a dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement." Id. Here, the purpose of the Easement is to provide Uptown a surface passage to and from its property. The Easement also provides that Uptown may maintain the driveway, roadways and sidewalks and passageways on said property. Uptown, however, may only do so to the extent that it does not create an undue burden on the servient tenement. In Scruby, the dominant tenement had an easement for ingress and egress on an unpaved roadway. Without consent of the servient tenement, the dominant tenement paved a section of the roadway. The court found that while the dominant tenement could make the necessary repairs to maintain the unpaved road, the dominant tenement could not, however, substantially alter the roadway without the consent of the servient tenement. Scruby, 37 Cal.App.41' at 707. The court held that the paving of the roadway was not incident to the reasonable repair or maintenance of the easement but that it was an undue burden on the servient tenement. Id. The paving of the roadway violated the servient tenement's wine permit, which would be lost if the pavement was not removed, thereby unreasonably burdening the servient tenement. Likewise, to the extent Uptown's improvements to the Easement create an undue burden on Plaza, Uptown should be enjoined from making such improvements. Uptown's development plan includes the construction of sidewalks on the Easement which do not currently exist. Consequently, the construction of new sidewalks constitutes an undue burden on Plaza's property. The Easement only provides for the maintenance of the surface roadway, not any sort of construction which would unilaterally expand Uptown's Easement. Moreover, Uptown's development plans will cause Plaza further undue burden from the loss of use of the Easement. B. UPTOWN MAY NOT ALTER OR USE THE EASEMENT FOR ANY OTHER PURPOSE OTHER THAN INGRESS AND EGRESS TO AND FROM ITS PARCEL, SUCH AS LAYING SEWER AND/OR WATER LINES The conveyance of a roadway easement "does not include the right to use the easement for any other purpose." Scruby, 37 Cal.App.4t' at 703. Here, Uptown only has the right to use the surface of the Easement for ingress and egress to and from its parcel. It cannot, however, dig below the surface to construct sewer and/or water lines. Not only would that violate the intended purpose of the Easement, it would also unilaterally expand Uptown's usage of the Easement. Uptown may not use the Easement for any other purpose than to travel on the roadway to get to and from its parcel. San Rafael Ranch Co. v. Ralph Rogers Co. (1908) 154 Cal. 76, 76 -77 is illustrative of this point. In San Rafael Ranch, the dominant tenement had a "reasonable right of way along and across said lot." The dominant tenement mistakenly believed that it had a right to the water on the servient tenement's land as well and attempted to dig up the soil for the purpose of laying pipeline to conduct water over the servient tenement's property. The Court restrained the Ms. Rosalinh Ung November 19, 2012 Page 3 dominant tenement from constructing such a pipeline stating that "the "phrase `right of way,' as thus used, has a well- defined meaning. It contemplates a right of ingress and egress to and from the grantee's lands. It does not contemplate the right to dig trenches and lay pipe -lines for the conduct of water." Similarly, the only right that Uptown has is the right to a surface passageway. It cannot dig below the surface to construct any water or sewer lines. See also Allen v. San Jose Land & Water Co. (1891) 92 Cal. 138 (finding that an easement for an above ground open ditch to conduct water would be substantially altered if the dominant tenement than laid an underground pipeline). In light of the above, Uptown's proposed use and alterations to the Easement go beyond the scope and rights conveyed by the Easement and should be enjoined from moving forward with its proposed plans. If you have any questions or would like to discuss the above, please call me. DYK:dyk cc: Thomas H. Cadden, Esq. Ignacio J. Lazo, Esq. John Adams 02/26/2013 3:21PH FAX 8486501181 HAWKINS LAW OFFICES @0001/0007 RECEUM Law Offices of Robert C. Hawkins,?nI3 r rEB 26 Phi U 21 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949)650.5550 I''= A CF E OF ',LERK Fax: (949) 650.1181 FAX. COVER SHEEN' rE��w��,��P AGENDA TRANSMITTED TO- a _ 26,'l3 NAME FAX NUMBER PHONE. NUMBER Leilani Brown, City Clerk (949) 644.3039 From: Robert C. Hawkins Client/Matter: Friends Date: February 26, 2013 Documents: Comments on Uptown FEIR and related documents Pages: 6 a COMMENTS: Original will follow as indicated. The information contained in this facsimile message is information protected by attorney- client and/or the attorney/work product privilege, If Is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by facsimile. If rho person actually receiving this facsimile at any other reader of the facsimile Is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. Ifyou have received this communication In error, please immediately notify us by telephone and return rho original message to us at the above address via US. Postal Service. * NOT COLINTING COVER SHEET. IF YOU DO NOT RECEIVT;ALL PAGES, PLEASE• TELEPHONE US MviEDIATELY AT (949) 650 -5550. Nol,4 +k to 2 '2-U- i3 LAW OFFICES OF ROBERT C. HAWKINS I I Re(— �G J G o Am V�, Via Facsimile Keith Curry, Mayor Members of the City Council City of Newport Beach 3300 Newport Blvd. Newport Beach, California 92663 Re: February 26, 2013 Development Aereement and related Documents, and Staff Report. Dear Honorable Mayor and Members of the City Council Thank you for the opportunity to comment to comment on the captioned matter. This firm represents Friends of Dolores and other community groups and entities in Orange County. On behalf of these clients, we offer the following comments. We also incorporate by reference the comments of all of those which are critical of the Project and the FEIR including Newport Mesa Unified School District, business interests in the John Wayne Airport area, and the John Wayne Airport Land Use Commission. I. The City Should Not Override the Tentative Decision of the Airport Land Use Commission, Because It Will Create Land Use Impacts and Expose the City to Liability. In our comments on Agenda Item No. 3 of your December 11, 2012 Agenda, we wrote that Public Utilities Code section 21678 which provides immunity for an airport operator when a city such as Newport Beach overrides a finding of inconsistency with the ALUP. The City Attorney's office disagreed with our citation and our conclusion. Nonetheless, the City Attorney at that meeting said that although John Wayne Airport would be immune, the City itself has immunities which will protect it in the event of an air accident which could subject it to liability. This is incorrect. No immunity will protect the City from such planning decisions. Indeed, your own resolutions show that there is no such immunity and that the City relies on and requires the developer's indemnity rather than any statutory immunity for protection from its erroneous land use decisions. For instance, your resolution regarding the proposed certification of the EIR s contains Finding 15 which requires the applicant to indemnify the City for any challenges to the land use approval and EIR 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 The Hon, Mayor Curry Members of the City Council -2. February 26, 2013 certification. Further, your resolution regarding the Statement of Overriding Considerations contains a similar finding and requirement. H. The City Cannot Adopt the Statement of Overriding Considerations and Should Not Sell the Peace and Ouiet of its Residents. Staff, the CEQA Consultant, and the Planning Commission recommend certification of the FEIR (February 2013) and adoption of the Statement of Overriding Considerations for unmitigated significant impacts for Air Quality, Land Use, and Noise, because: "The record supports a Statement of Overriding Considerations pursuant to CEQA in that the Project includes public benefits that outweigh the air quality, land use and noise impacts of the proposed Project." Attachment 2, Draft Resolution for Findings for Statement of Overriding Considerations, "Fact' 11. Exhibit A attached to the Resolution discusses these impacts and lists those public benefits. As to the impacts, as discussed below, the noise impact of phase 2 can be fully mitigated by requiring that the Project be constructed in one phase only or deny the issuance of any certificates of occupancy for the Phase I project unless and until Phase 2 is completed and issued such certificates. More importantly, the public benefit is illusory as compared to these impacts. The primary public benefit are the fees paid in comlection with the proposed Development Agreement. That is, this is a sale of the City and the peace and quiet of its residents for cold hard cash. The Council has sought to operate the City as a business; this is the actual sale of a portion of the City and the quiet enjoyment of its residents and businesses to benefit the applicant and others in the City. This sale should not be approved. As to problematic analysis in the FEIR of other impacts, we discuss those shortcomings below. III. The City Cannot Certify the FEIR (February 2013) Because Several Unaddressed Environmental Impacts Require Further Public and Environmental Review. 13 Probably the most important and yet unanalyzed impacts of the Project are the impacts on land use raised during the public hearings and the public review process. During the 2006 General Plan Update, the City spent much time and money developing a plan for the John Wayne Airport Area (the "Airport Area "). Figures LU -22 and -23 showed substantial areas for residential development that would be integrated and intertwined into an overall residential village within the other uses in the Airport area including office, manufacturing, and service uses. In contrast, the Project conflicts with this vision. It takes virtually all of the residential allotment in the Airport Area and crams these roughlyl,250 residential units into tall towers which the Airport Land Use Commission has found inconsistent with the Airport Land Use Plan for John Wayne Airport. The plan provides for almost an independent, stand alone development which will not be integrated into the rest of the Airport Area. As the Chairman of the Planning Commission said: 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 The Hon. Mayor Curry Members of the City Council • 3 • February 26, 2013 "Chair Toerge referenced the General Plan showing a circulation system that connects to Von Karman Avenue stating that he felt that it was a significant and important component. That it was minimized in the Integrated Community Development Plan with a desire by both parties to not cross boundaries. He referenced Figure LU -23 in the General Plan that provided unrestricted access through the area but the proposed plan provided emergency access only. He felt that the project has moved away from what was originally approved in the General Plan. He expressed concerns regarding cut -off of pedestrian connectivity during Phase 1, Chair Toerge commented that several issues are significantly different than what was originally approved in the General Plan." Attachment 9, Minutes of the October 4, 2012 Meeting of the Planning Commission, page 4, your Staff Report handwritten page 334. The Project was never changed to address these concerns. These are significant and unmitigated land use impacts for several reasons.. First, as the General Plan recognizes, "The Airport Area encompasses the properties abutting and east of John Wayne Airport (JWA) and is in close proximity to the Irvine Business Complex and University of California, Irvine. This area includes a mixture of low -, medium -, and high -rise office uses as well as research and development and high technology businesses." General Plan, Land Use Element, page 3 -4. As the City of Irvine found out in the Irvine Business Complex, the introduction of new residential units in such an area is fraught with problems including land use compatibility problems. For the Project, these problems include noise impacts as a result of the construction and operation of the Project on adjacent office and business uses. Second, the Land Use Element Policy No. LU3.3 provided that for Airport Area: "[R]e -use of underperforming industrial and office properties and development of cohesive residential neighborhoods in proximity to jobs and services. General Plan, Land Use Element, page 3 -9. L-Iowever, as indicated in Chair Toerge's comments, the Project does not provide for the "development of cohesive residential neighborhoods." It creates one large neighborhood island of residential in a sea of "underperforming industrial and office properties." As the FEIR recognizes, the Project provides no impetus or precedent setting action for further redevelopment in the Airport Area, See DEIR, page 10 -2. This was not the promise of the updated General Plan Land Use Element. Residential was to be introduced strategically and carefully throughout the Airport Area, not isolated to a 25 acre residential island. Third, and importantly, Land Use Element Policy LU 6.15 -3 provides: "Require that all development be constructed in conformance with the height restrictions set forth by Federal Aviation Administration (FAA), Federal Aviation Regulations (FAR) Part 77, and Caltrans Division of Aeronautics, and that residential development be located outside of the 65 dBA CNEL noise contour specified by the 1985 JWA Master Plan. (Imp 2.1, 3.1, 4.1, 14.3)" 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 6.50.5550 Fax: (949) 6501181 The Hon. Mayor Curry Members of the City Council -4, February 26, 2013 Here, the ALUC has determined that the Project is not in conformance of such restrictions and, without amendment to the General Plan, the City proposes to override the ALUC's determination. The draft Resolution which Staff recommends to override the ALUC's determination snakes no findings that the Project complies with LU 6.15 -3. Indeed, the inconsistency is apparent. Hence, the Project requires a General Plan Amendment for the Project to go forward. Because the Project is isolated, fails to integrate the proposed residential uses in the Airport Area and requires a General Plan Amendment regarding the Project's inconsistency with the ALUP, the Project continues to create significant and unmitigated land use impacts that the City must address. The FEIR fails to do so. Although the Project lies within the jurisdictional boundaries of the Sant Ana Unified School District ( "SAUSD "), it is near the Newport Mesa Unified School District ( "NMUSD "). Both Districts commented on the DEIR, and both found fault with the DEIR. As a result, the City corrected these issues in the FEIR. Unfortunately, the corrections do not hilly address the issues. First, Table 5.12 -6 shows that SAUSD is overcapacity for permanent class rooms; the FEIR seems to imply that with portable classrooms is merely at capacity. Nonetheless, the Project will affect this capacity. The DEIR suggests that one avenue for such mitigation is to expand the boundaries of NMUSD. According to the FEIR, the DEIR failed to provide a complete account of how such boundary adjustments are made. The FEIR correctly notes the numerous factors which affect such decisions. However, the FEIR fails to take into account and appreciate NMUSD's comment that "One significant consideration is the agreement of the school districts involved as to whether the proposed shift is acceptable. It is a rare instance when any change in school district boundaries occurs without the agreement of the boards of education of both districts. No such discussions have occurred to date between NMUSD and SAUSD." FEIR, 2 -9. Given the comments of both Districts, it is unclear that such agreement would occur. Thus, the Project will have significant impacts on SAUSD and if the boundary adjustment occurred, impacts on NMUSD. SAUSD also noted that the DEIR omitted several projects in the cumulative projects list. The FEIR adds several projects in Irvine and corrects the location of a project in the SAUSD boundary. Table 5.12 -2 shows that SAUSD suffers significant cumulative impacts with the Project: It is substantially overcapacity with the cumulative impacts with the Project for all levels: elementary is - 178; intermediate is -516; and high school is -87. Indeed, it is unclear that the FEIR correctly speculates at the Project's student generation rates: elementary is 50; intermediate is 15; and high school is 52. More likely, the Project will generate students to a similar rate as residential uses throughout the District which will result in an additional and significant impact on intermediate level schools. Nonetheless, the FEIR concludes that such impacts are mitigated by the payment of school impact fees. However, it is unclear that for the first wave of such students, the mitigation measures will 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650.1181 The Hon. Mayor Curry Members of the City Council .5. February 26, 2013 be in place. Indeed, likely it will mean simply more portable classrooms which is in and of itself an impact on schools. Further, given that the FEIR includes substantially new information which was available to the City prior to issuance of the DEIR but was not in the DEIR, the City should recirculate the FEIR for further review and comment so that the public and the Districts can fully assess and consider the Project's full impacts on area schools and the Districts. C. The FEIR acknowledges that the DEIR's list of cumulative projects was incomplete and failed to include a project already built, occupied, and mitigated. One of the omitted projects was the Scholle Project at Fairchild and Jamboree with 107,211 square feet of office. It is particularly surprising that this project was omitted given that the City of Newport Beach received over $400,000 traffic mitigation for this Project which moneys aided in the widening of the Jamboree Bridge over SR 73. The other omitted project is the Irvine Technology Center which includes 1,035 residential units and over 8,500 square feet of commercial uses. Further, we understand from conversations with the City of Irvine Planning Staff that this project may increase to over 1,800 residential units. Overall, the DEIR failed to consider over 1,035 residential units and over 115,000 square feet of commercial uses. These omissions required the City to cause to be prepared a revised Traffic Study which is Appendix E to the FEIR. However, this revised Traffic Study and the FEIR faile to provide a clear and full explanation of the changes. For instance, the FEIR includes redlined changes for this new information. However, all of the original tables are in strike in their entirety and and all of the new tables are in redlining in their entirety. It is impossible to determine what changes were made without comparing entry by entry. The redlining and strike is supposed avoid this burdensome review. It is unreasonable for the public to conduct such a review. The FEIR must be corrected and recirculated for public review and comment. Further, the revised Traffic Study and the FEIR appear to use inaccurate traffic generation rates for existing traffic. The revised Traffic Study notes that the site currently has the following uses in the following square footages: "4311 Jamboree, with 115,375 square feet of office use and 11,300 square feet of light industrial use; and 4321 Jamboree, with 52,947 square feet of office space and 258,505 square feet of industrial use." So, 4311 Jamboree which is Phase I is roughly fifty (50 %) percent office and fifty (50 %) percent industrial. 4321 Jamboree which is Phase 2 is less than twenty (20 %) office and more than eighty (80 %) industrial. Although these are different uses, neither the FEIR nor the revised Traffic Study shows any difference for these uses or provides any explanation for not differentiating these uses. However, in "Comparison of Office /Business- Related Trip Generation Rates" by Howard Stein and Cary Vick in the ITE 1989 Compendium of Technical Papers, the authors note that trip generation for light industrial is much lower than for general office: they note that for light industrial, 2.3 employees work in 1,000 square feet; this is compared to the office use which had 4.3 employees per 1,000 square 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 The Hon. Mayor Curry Members of the City Council - 6 - February 26, 2013 feet. Of course, what this does is that it wildly inflates by more than doubling the traffic allegedly generated for existing uses as compared to the proposed Project. This is incorrect. The FEIR and the revised Traffic Study must correctly account for current traffic so that the decisionmakers and the public can fully understand the traffic impacts of the proposed Project. IV. Conclusion: the FEIR Must be Revised and Recirculated. The Project has many unaddressed, unanalyzed and unmitigated significant impacts. The FEIR fails to address fully the significant and unmitigated noise impacts. It exacerbates the Project's land use impacts. It also contains new and incomplete information regarding potential students and exacerbates existing problems in area schools. Further, the FEIR and the revised Traffic Study include incorrect information regarding existing traffic and fail to assess correctly the traffic impacts of the Project. For all of these reasons, the FEIR must be revised and recirculated for further public review and comment. Thank you for the opportunity to comment on the captioned matter. Please provide me with notices regarding the captioned matter. We will provide further and additional comments on the captioned matter in a timely mariner. Of course, should you have any questions, please do not hesitate to contact me. RCH /kw cc: Leilani Brown, City Clerk Sincerely, 14 Newport Center Drive, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650 -1181 Law Offices of Robert C, Hawkins 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650-1181 FK AX COYER SH]POKET TRANSMITTED TO: NAME FAX NUMBER PHONE NUMBER Leilani Brown, City Clerk (949) 644 -3039 From: Robert C. Hawkins Client/Matter: Friends Date: February 26, 2013 Documents: Comments on Uptown FEIR and related documents Pages: 6 * COMMENTS: Original will follow as indicated. The information contained in this facsimile message is information protected by attorney - client and/or the attorney /work product privilege. It is intended onlyfor the use of the individual named above and the privileges are not waived by virtue of this having been sent. byfacsimile. If the person actually receiving this facsimile or any other reader of the facsimile is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, at- copying of the communication is strictly prohibited. Ifyou have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via U.S. Postal Service. ° NOT COUNTING COVER SHEET. IF YOU DO NOT RECEIVE ALL PAGES, PLEASE TELEPHONE US IMMEDIATELY AT (949) 650 -5550. 02/26/2013 3:25PH FAX 9496501181 HAWKTHS IAW nPPTeGs Law Offices of Robert C, Hawkins 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949)650.5550 Fax: (949) 650.1161 TRANSMITTED TO, NAME? _ - - - - U. vvvi PHONF. NUMBER * ** TX Result Report Leilarti Brown, City Clerk (949) 644 -3039 TX complete. Job No. 0057 Address 6443039 flame Start Time 02/26 03:21 Pm Call Length 03'39 Sheets 7 Result 0r, Law Offices of Robert C, Hawkins 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949)650.5550 Fax: (949) 650.1161 TRANSMITTED TO, NAME? FAX NUMBER PHONF. NUMBER Leilarti Brown, City Clerk (949) 644 -3039 From: Robert C. Hawkins Client/Matter: Friends Date: February 26, 2013 Documents: Comments on Uptown FETR and related documents Pages: 6 * COMMPNTS: Original will follow as indicated. Item 10 02 -26 -2013 Page 1 of 3 CORRESPONDENCE APPLICANT SHOPOFF "S RESPONSE TO COMMENTS Responses to John Adams Letter dated February 26, 2013: 1. Traffic Study: The Traffic Impact Analysis for the project appears to have several deficiencies and as a result the conclusions of the analysis may not be accurate. (see attached peer review by Kunzman Associates, Inc.) The City tra ffrc engineer and Kirnley Horn Associates, who prepared the Uptown Newport traffic study, can respond to the technical aspects of the comments. However, the Kunzrnan letter does not provide any specific deficiencies or errors in the Uptown Newport traffic study, and no revision or further study of the Uptown NeN +port traffic is warranted. 2. Traffic: The project will create a twelve fold increase in traffic. The EIR indicates daily trip generation for this project is as follows: Existing Use: 747 Proposed Total: 9,047 Net New Trips: 8;286 The proposed project results in an increase of 8,286 trips, which is a twelve -fold increase. This increase in traffic will significantly impact the ability of Courthouse Plaza tenants to access the Birch Street driveway from the Courthouse Plaza parking lots. This will result in damage to property value. Solution: Reduce trip generation on the Birch Street Easement to the existing levels. This can be accomplished by reducing project density and controlling access at Birch Street. While there is an increase in the number of trips, the project does not cause a signifcant delay or impact the use of the Birch Street Driveway for Courthouse Plaza: The Level of Service for the Driveway is a `B ", and the change in delay time to exit the driveway is from 11.3 seconds to 13.2 seconds, and increase of only]. 9 seconds. While there is traffic from the project that will use the driveway, we have the legal right to use the driveway and the impact is far from being signif cant. 3. Project Density: Project density appears to exceed the maximum density allowed by the General Plan. The General Plan allows for building density of a minimum of 30 units per net acre and a maximum of 50 units per net acre (see attached Pg. 3 -105 from General Plan). Net acre is defined in the General Plan as sites that can be built on (see attached Pg. 14 -36 from General Plan). The project proposes a total of 1,244 units, by utilizing non - buildable /open space lots (i.e. the lettered lots) for the density calculations. The buildable lots (i.e. the numbered lots) from the Tentative Tract Map total 17.78 acres. Therefore, the maximum density allowed should be 1,200 units (17.78 acres x 50 /acres x 35% density bonus = 1,200 units). The minimum density allowed would be 720 units. Solution: Reduce project density to conform to General Plan requirements. ITEM 10 2 -26 -13 Pg g 6` CORRESPONDENCE SHOPOFF'S RESPONSE TO COMMENTS The Net Developable Acreage for Uptown Newport is 18.46 acres. Lettered lots can be included in the Net Developable Acreage. The Net Developable Acreage of 18.46 acres excludes the public parks, public streets, and public paseos. The allowed nuunber of units is 1,244 DU. A detailed analysis of the acreage was performed by Staff and reviewed daring the Planning Commission proceedings. 4. Setbacks and Shadows: Proposed building setbacks adjacent to Courthouse Plaza and Koll Center Newport are only 15 feet. This is significantly less than the surrounding buildings. The project imposes shadows on adjacent buildings. The majority of adjacent buildings in Koll Center Newport are setback approximately 100 to 150 feet from the property lines shared with the project. The project buildings should be required to have similar setbacks. This will minimize the impacts from shading and be more aesthetically compatible with the surrounding business park. Solution: Increase the 15 foot set back from the Courthouse Plaza and Koll Center Newport property line. The Courthouse Plaza buildings are located approximately 85 feet fr-ons the nearest proposed building in Uptown Newport. The closest building in KCN is over 100 feet away. We have agreed to reduced building heights adjacent to the Koll Center Newport and Courthouse Plaza as a concession to reduce shad and shadow impacts on surrounding buildings. Buildings will be limited to 55 feet within 1.15 feet of the Courthouse Plaza property line and within 50 feet of the KCNproperty. 5. NoiseNibration: The project imposes a significant noise and vibration impact on adjacent buildings. The EIR states that vibration levels during Phase 2 will exceed thresholds at the adjacent office buildings to the northeast, which is our Courthouse Plaza project. The EIR states the vibration levels will cause annoyance to the occupants. The impact will be significant on Courthouse Plaza. The loud noise and vibration caused during construction will result in lost tenants and reduced rental rates during construction. This will have significant economic impact on the Courthouse Plaza buildings. Solution: Mitigation of this issue should be solved by the developer. Noise and vibration should be reduced to acceptable levels with sound walls or other methods during construction. The EIR states: `Although. these (vibration) levels would have the potential to cause annoyance at the occupants of these buildings, vibration dissipates rapidly with distance. As vibration equipment moves around the site, annoyance cause by vibration generated by construction equipment would be sporadic and short terns. Therefore, these impacts would be less than significant during Phase 2 construction. " Noise from construction is temporary and is a short -term inxpacl during construction. Long - terns, the project will result in a reduction in noise clue to the phase -out of the Jazz industrial operations. Noise from construction is acknowledged as a significant and unavoidable impact. ITEM 10 2 -26 -13 ,C 4;? CORRESPONDENCE SHOPOFF'S RESPONSE TO COMMENTS 6. Construction Traffic: Construction traffic will significantly impact the Birch Street Easement. The construction of each phase of the project could last several years. This will create significant noise, dust and other issues related to construction traffic. This will have significant economic impact on the Courthouse Plaza buildings. Solution: Require all construction traffic during both phases to be directed to and from Jamboree Road and not allowed to utilize the Birch Street Easement. This was agreed to by the Planning Department (see attached Pg. 390 from agenda documents and attached EIR comments) We have every legal right to use the Birch Street access drive for construction traffic. It is currently used by Jazz Semiconductor for delivery of materials and outgoing product as well as access for employees and visitors. We see no need to restrict construction traffic oil the Birch Street access drive. 7. Birch Street Easement: The project proposes modification and construction on the Birch Street Easement that it does not have the right to construct. In addition, the project attempts to convert a private driveway easement for public traffic use. (see attached letter from Cadden & Fuller) The project proposes the modification and installation of various improvements across the Birch Street Easement and Birch Street frontage. The project developer does not have the right to construct or modify improvements in the easement area. This is a private driveway easement. The developer does not have the right to increase traffic or burden the easement beyond traffic neutral. The proposed project funnels a street system with unlimited public access to apartment, retail stores and public parks through a narrow private driveway easement. The result is an attempt to convert a private driveway for public traffic use. Solution: The project should be considered absent any proposed improvements or modifications on the Birch Street Easement. The Birch Street Easement should not be considered a primary access point for the project. The project should be designed to utilize the two Jamboree Road access points as primary access for the project. This can be accomplished by controlled access at Birch Street. access for the project. This can be accomplished by controlled access at Birch Street. The easement over the access drive provides for a: "non - exclusive easement for passage in, over and along the real property ... including the right to maintain driveways, roadways, sidewalks and passageways on said property. " There is nothing in the Grant of Easement that limits the intensity of use of the non - exclusive Easement; in fact, the Grant of Easement is very broad and contains no restrictions as to the use of the Easement. On)- attorney, Greg Powers is available to provide additional response to Mr. Adam's letter. CORN .L4� Q ��1�7tU RV p;kall dVrTll`.RSg LllaC 100 WILSHIRL BOULEVARD. SUITE 700 • SANTA MONICA, CALIFORNIA 90403 (3 10) 234 -2525 February 26, 2013 "RECEIVED AFTER AGENDA Ms. Rosalinh Ung YRlie t Associate Planner 3 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Re: Uptown Newport project Newport Beach, California Dear Ms. Ung: Our company is the owner of 5000 Birch Avenue, a nearly 300,000 SF multi- tenant office building in the Koll Center Newport (KCN) business park, which is immediately adjacent to the Uptown Newport project. As owners of a commercial office building that abuts the Conextant property, we have followed the Shopoff development proposal with keen interest and concern over the potential impact upon our property. To that end, we have participated with other concerned KCN property owners to encourage the city and Shopoff to modify design plans for Uptown Newport so that it blends into the existing development setting. Koll Center North is one of the premiere Southern California business parks, with its low density site plan, ample building separation and strong architecture. These design features have led to high property values throughout the KCN, and the owners naturally wish to preserve these values. Recently, a group of KCN property owners have met with The Shopoff Group to address specific design parameters that will minimize the deleterious effects of the Uptown Newport project on the immediately adjacent properties. Some progress has been made through these meetings but there remain significant differences between the parties. We encourage the city to require the parties to resolve their differences before granting approval of the Uptown Newport Project. As substantial and long -time property owners and taxpayers in the city of Newport, we are deserving of the opportunity to work with an adjoining property owner to incorporate design issues that will minimize the negative impacts on our existing properties. Unfortunately, Cornerstone representatives will not be able to attend this evening's city council meeting but we want to convey our strong objection to approving Uptown Newport as currently designed. With your support, we feel there is ample ground for a meeting of the minds on the new project's design treatments next to KCN. The Shopoff Group's project should not be granted approval without satisfying the adjacent owner's reasonable design solutions. Thank you in advance for your consideration of our concerns. Sincerely, c? o Cornerstone Partners IV, LLC cc 4m0 3 Sandy Throo t m Vice President V o 10 - 2 -Z�o-13 MEYER PROPERTIES 4320 VON KARMAN AVENUE a NEWPORT BEACH, CALIFORNIA 92660 (949) 562 -0500 o FAX (949) 562 -0515 February 25, 2013 Michael F. Henn, Councilmember Tony Petros, Councilmember Rush N. Hill, 11, Councilmember Leslie Daigle, Councilmember Edward D. Selich, Councilmember Nancy Gardner, Councilmember Keith D. Curry, Councilmember City Council of Newport Beach 100 Civic Center Dr. Newport Beach, CA 92660 Dear Council Members: On behalf of 'Meyer Properties and a group orconcemed Koll Center Newport owners, I am submitting a traffic analysis peer review recently completed by Kunzman Associates. It is our contention that the Planning Commission's recommendation to certify the CEQA document was inappropriate. The Kunzman analysis points out serious defects in the Uptown Newport Project traffic study completed by Kimley -Horn and Associates in November of 2012 thereby rendering the study inadequate in complying with the California Environmental Quality Act (CEQA). Health, Safety and general welfare issues exist with the current plan. This is evidenced notjust by our group but is further emphasized by letters you have received from both the Airport Land Use Commission, CalTrans, the Newport Mesa School District and the Santa Ana School District. Allowing payment of in lieu fees as a substitute for the needed parkland and impact fees as a substitute for classrooms will prove detrimental to the community. Additionally, the EIR states that unmitigatable noise and air quality impacts are created by this plan. It is further our contention that the Planning Commission of the City of Newport Beach has not followed due process in its advancement of the Uptown Newport application. The Commission recommended approval of a parcelized and fragmented project that is inconsistent with General Plan's goal of an "integrated plan ". Instead, the plan before you is phased, subdivided and lacks connectivity and integration of both form and function. Further, the Conurdssion relies on easements within a common area of an private property association in which this project has no legal rights and could therefore be construed by our association as a taking of our property. Finally, it should be noted that none of the Koll Center Newport stakeholders were represented on the City's Development Agreement Review Committee which we believe is a breach of due process. We were hopeful that these and other serious issues could have been resolved through meetings with the developer of Uptown Newport, but, regrettably, that has not happened. The February 15 °i letter to Mr. Shopoff summarizes these issues and is attached for your consideration. We are requesting the City further examine the apparent failure to comply with CEQA and the due process of law. Sincerely, Meyer Properties % 4 James R. Hasty Senior Vice President KCN Group 0 Page 2 c KLINDOAN ASSOCIATES, INC. OVER 35 YEARS OF ENCELLENT SERVICE February 19, 2013 Mr. Bryan Bentrott DEXUS PROPERTY GROUP 4000 Westerly Place, Suite 100 Newport Beach, CA 92660 Dear Mr. Bentrott: INTRODUCTION The firm of Kunzman Associates, Inc. is pleased to provide this traffic impact analysis peer review of the Traffic Impact Analysis for the Uptown Newport Proiect prepared by Kimley -Horn and Associates, Inc. (November 2012). The traffic impact analysis generally follows standard practice for the City of Newport Beach and Irvine traffic study guidelines. COMMENT 1 Page 7. Provide a discussion within the body of the text regarding the future road shown on Figure 4. Will this roadway be limited to emergency vehicles only or provide access to the project site from Von Karman Avenue? Ike 17 ILi 4I LM Page 7. The unsignalized project driveway on Jamboree Road should be included in Figure 4 and the Level of Service analysis for all scenarios. It should be noted that the Level of Service worksheet for the intersection is already included in Appendix B for some scenarios. This new project driveway will be limited to right turns in /out and left turns in only from Jamboree Road and the Levels of Service during the peak hours should be included in the traffic study. COMMENT 3 Page 17. The traffic count worksheets are mainly from Year 2011. However, one intersection is from March 2010 (intersection #18). Explain. Traffic counts should be taken within 1 year of the preparation of the traffic study. COMMENT 4 Page 18. Figure 6 should be corrected for the following intersections to be consistent with Appendix B: Intersection #2 — WB free right turn lane Intersection #5 — EB defacto right turn lane 1111 TOWN & COUNTRY ROAD, SUITE 34 ORANGE, CALIFORNIA 92868(714) 973 -8363 W W W.TP,AFF IC-ENOI NEER.COM Mr. Bryan Bentrott DEXUS PROPERTY GROUP February 19, 2013 Intersection #18 — WB left turn lane Intersection #21 —EB shared left /right turn lane Intersection #32 — WB through and defacto right turn lane Intersection #42 — NB shared left /right turn lane The existing lane configurations should be the same when comparing the Intersection Analysis Worksheets and the figure showing the existing lane geometrics in the study area. COMMENTS Page 21. The Institute of Transportation Engineers (ITE), Trip Generation, 9th Edition, 2012 should be referenced for Tables 2 and 3. The latest trip generation manual should be used in the calculation of the project trips. COMMENT 6 Page 25. The project trip distributions should be separated for residential vs. commercial land uses. Home based trip distribution patterns are not identical to shopping based trip distribution patterns. The separate trip distributions for residential and commercial land uses will result in project traffic volumes that are different from those depicted in the traffic study. COMMENT 7 Pages 26 and 27. The trip distributions should show adequate detail to track the percentages to the project site. The detailed percentages will be necessary before conducting a detailed review of the project traffic volumes close to the project site. COMMENT 8 Page 39. Table 7 shows Levels of Service that are lower for Year 2018 TPO without project conditions vs. existing conditions. Explain. The Levels of Service are typically higher for future traffic conditions from existing traffic conditions, unless further detail is provided to show the reason why Levels of Service during the peak hours would come down in the future. Cdi7I Lt51411101 Page 45. Project No. 5 is a cumulative project located at the project site. Explain. It appears that a double- counting of trips has occurred for the land uses projected at the location of the proposed development. f�Mki116to" Page 71. Provide an explanation in the body of the report describing why only these freeway mainline segments were analyzed. Typically a threshold is applied to determine which freeway mainline segments are required for analysis within a traffic study. W W W.TRAFF IC-ENGI NEER.COM 2 a Mr. Bryan Bentrott DEXUS PROPERTY GROUP February 19, 2013 COMMENT 11 Appendix B. Provide explanation for why future traffic volumes are lower than existing traffic volumes (i.e., Intersection #1 AM peak hour — existing vs. Year 2018 TPO without project). The traffic volumes are typically higher for future traffic conditions from existing traffic conditions, unless further detail is provided to show the reason why traffic volumes would come down in the future. CONCLUSION Based on the deficiencies noted in the comments above, the traffic study conclusions may not be accurate. It has been a pleasure to service your needs on this project. Should you have any questions or if we can be of further assistance, please do not hesitate to call at (714) 973 -8383. Respectfully submitted, KUNZMAN ASSOCIATES, INC. Q� '0 A Carl Ballard, LEED GA Principal Associate #5287 S /PpF ESS /p�\ P• G7 y M w No.TR0056 Z d OF CAU�\� KUNZMAN ASSOCIATES, INC. William Kunzman, P.E. Principal W W W.TRAFFIC—ENGINEER.COM 3 MEYER PROPERTIES 4320 VON K.ARMAN AVENUE c NEwPoRT BEACH, CALIFORNIA 92660 (949) 562 -0500 o FAX (949) 562 -0515 February 15, 2013 William A. Shopoff President The Shopoff Group 2 Park Plaza Suite 700 Irvine, CA 92614 Re: Uptown Newport Project Dear Bill: Our group met this morning in an attempt to focus on the issues both parties have discussed and to prioritize what is most important to us. In this regard, we have the following comments: Retail — to be a minimum of 6,000sf devoted to food service, should include one sit down restaurant. An active leasing program of one - year from stabilized occupancy(90 %)of the Phase I residential development. Building Setbacks — to be a minimum of 35'from the Koll Center Newport and Courthouse Plaza property lines, excepting along the the Jazz /Conexant parking structure which could be a 5' setback. Building Heights — to be a maximum of 55' for structures close to the KCN and CP property line. Building Massing — In order to avoid continuous uninterrupted building planes along the project perimeter, it is appropriate that in addition to the current measures discussed in the Block Massing section of the Uptown Newport Design Guidelines, that Figure 3 -25 Horizontal Massing Breaks be modified so that all the building segments adjacent to neighboring properties be labeled as red (1 major and I minor break required). Please refer to the attached exhibit. Landscaping - in order to help soften the boundary and provide appropriate screening of the buildings, in addition to the current I easures discussed in the Community Edge Conditions section of the Uptown Newport Design Guidelines, that mature trees be planted at a minimum spacing of 30 feet along the project perimeter. In addition, where feasible along the project perimeter, existing mature trees should be maintained. Vehicular Access — access to Von Karman should be limited to emergency vehicles only. Pedestrian Access — none unless a Reserve Fund is established by the developer or the city to cover the added cost burden on Koll Center Newport, if so, two locations that would have minimal effect on parking and be the least likely for an accident to occur. Affordable Units — eliminate low and very low income units or limit them to seniors. We hope this information proves helpful and we look forward to working together to formalize a recordable agreement acceptable to -both parties. Sincerely, Meyer Properties James B. Hasty Senior Vice President cc: Koll Center Newport Group Courthouse .Plaza Group 0 Page 2 In the event that the Project utilizes a density bonus of less than 35 %, then the Affordability Requirements would be reduced pro -rata with the reduction of market rate units through an amendment to this AHIP. IV. Methods to meet Affordability Requirements The Owner shall meet its Affordable Housing Requirements by developing the affordable units on site. o „+ «„ SeGtiGR _20.K.071) Af thA Qt„ M6lRiGip@l Cede, Affordable units sgatlmav be dispersed throughout the Planned Community or u4e- sclusterediRg a#eFdable waits in one or more sections of the Planned Community is appFeved by the V. Definitions The City's Affordability Requirements and Affordable Housing Requirements set out certain definitions and descriptions to assist in the implementation of the requirements, many of which are indicated below. These definitions and descriptions will be utilized in the interpretation of the requirements under this AHIP: A. Affordable Housing Agreement (AHA). Section 20.32.100 of the Density Bonus Code requires that an applicant that seeks a density bonus shall enter into an Affordable Housing Agreement ( "AHA ") with the City. Section 19.54.020(A) of the Inclusionary Code states that the AHA shall provide legal restrictions by which the affordable units shall be restricted to ensure that the units remains affordable to very low -, low -, or moderate- income households, as applicable. With respect to rental units, rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner - occupied units, resale controls shall be in the form of resale restrictions, deeds of trust, and /or other similar documents recorded against the applicable property. B. Affordable Housing Cost. Pursuant to State of California Health & Safety Code Section 50052.5, affordable housing costs for any owner - occupied for -sale affordable units shall be as follows: a. The affordable housing costs for very low- income households shall not exceed thirty (30) percent of fifty (50) percent of area median income for Orange County adjusted for household size appropriate for the unit. b. For low- income households the affordable housing costs shall not exceed thirty (30) percent of seventy (70) percent of area median income for Orange County adjusted for household size appropriate for the unit. For those low- income households with incomes above seventy (70) percent of area median income the maximum affordable housing cost may be increased to thirty (30) percent of the income of the household. c. For moderate - income households the affordable housing costs shall not be less than twenty -eight (28) percent of the gross income of the household nor exceed thirty -five (35) percent of one hundred ten (110) percent of Orange County area median income adjusted for household size appropriate for the unit. Furthermore, for those moderate - income households with incomes above one hundred ten (110) percent of area Uptown Newport AHIP (Draft l,I m%'�^,'= January 29, 2013) Page 5 fro -12&1 I3 Uptown Newport Project Response to Comments John S. Adams & Associates Letter, dated February 25, 2013 Response to Comment 2 This comment repeats the Final EIR Comment 01 -2, submitted by the same firm. The Final EIR provided a detailed response to this comment. The issue of actual driveway counts vs. the full potential trip generation for the existing site was also addressed in detail in the Traffic Study on page 22. The trip- making potential for the site, assuming full occupancy and operation, would be 5,083 daily trips. Response to Comment 6 This comment repeats the Final EIR Comment 01 -5. The Final EIR provided a response to this comment, indicating that the approach and departure routes for construction vehicles would be via Jamboree Road, and that no construction traffic would use the Birch Street easement. Construction traffic was also addressed on pages 91 and 92 of the traffic study, which also stated that construction traffic would approach and depart the site via Jamboree. Traffic Study (Kunzman Letter dated February 20, 2013) Response to Comment 1 The dashed line representing a future connection to Von Karman was anticipated in prior study efforts, but is not proposed as part of the Uptown Newport project, and should have been deleted from the figures for this study. None of the analysis assumed this roadway, and no analysis results would be affected by this roadway. Response to Comment 2 The City Traffic Impact Analysis requirements do not typically require analysis of unsignalized intersections. The unsignalized driveway on Jamboree Road was not identified in the approved scope of work as a study intersection. The traffic counts that were taken at this driveway were used to quantify the existing traffic levels currently being generated by the existing uses on site. The existing site currently has an uncontrolled driveway on Jamboree Road. The proposed project will be moving this driveway approximately 150 feet northerly on Jamboree and we are restricting left -turns out of the site which would cause the intersection to operate better than existing with less conflicting movements. -t - Response to Comment 3 This intersection is not a City of Newport Beach primary intersection. The City does not typically require analysis of unsignalized intersections. The counts were originally provided by the City only because of the intersection proximity to the project site. When the project went on hold, and then was re- started, it was determined that new counts were not needed for this location. Response to Comment 4 Some intersection configurations have changed since the traffic analysis was originally started. In cases where the lane configuration figure and the analysis worksheets differ, the resulting Level of Service at the intersections are either unchanged, or there is more intersection capacity than what was assumed, and the Level of Service would actually be better than reported. Response to Comment 5 The 9th Edition of the Trip Generation publication was not released at the time the traffic analysis was conducted. A quick comparison of the 8th and 91h Edition for the land uses shows: - Apartment (ITE Code 220) — No change - Specialty Retail (ITE Code 814 / 826) — No change - Quality Restaurant (ITE Code 931) — No change - Shopping Center (ITE Code 820) (Used only for the AM peak) — 8th Edition — 1.00, 91h Edition — 0.96 There would be no change in project trip generation. Response to Comment 6 The commercial trips represent 2 to 7 % of the total project trips, and because of the small amount of commercial square footage, the trips would be expected to either draw from on -site or from the nearby local uses, and not be a regional draw. By carrying the commercial trips to the full extent of the study area, the analysis is actually more conservative. Response to Comment 7 The distribution and assignment of project traffic was conducted using the Traffix analysis software. Project turning movements at each intersection are shown on the report figures, and are also shown in chart format in the Traffix output worksheets in the appendices. Trip distribution assumptions were presented to and reviewed and approved by City staff before the analysis was conducted. -2- Response to Comment 3 This intersection is not a City of Newport Beach primary intersection. The City does not typically require analysis of unsignalized intersections. The counts were originally provided by the City only because of the intersection proximity to the project site. When the project went on hold, and then was re- started, it was determined that new counts were not needed for this location. Response to Comment 4 Some intersection configurations have changed since the traffic analysis was originally started. In cases where the lane configuration figure and the analysis worksheets differ, the resulting Level of Service at the intersections are either unchanged, or there is more intersection capacity than what was assumed, and the Level of Service would actually be better than reported. Response to Comment 5 The 9t' Edition of the Trip Generation publication was not released at the time the traffic analysis was conducted. A quick comparison of the 8th and 9ffi Edition for the land uses shows: - Apartment (ITE Code 220) — No change - Specialty Retail (ITE Code 814 / 826) — No change - Quality Restaurant (ITE Code 931) — No change - Shopping Center (ITE Code 820) (Used only for the AM peak) — 81h Edition — 1.00, 91h Edition — 0.96 There would be no change in project trip generation. Response to Comment 6 The commercial trips represent 2 to 7% of the total project trips, and because of the small amount of commercial square footage, the trips would be expected to either draw from on -site or from the nearby local uses, and not be a regional draw. By carrying the commercial trips to the full extent of the study area, the analysis is actually more conservative. Response to Comment 7 The distribution and assignment of project traffic was conducted using the Traffix analysis software. Project turning movements at each intersection are shown on the report figures, and are also shown in chart format in the Traffix output worksheets in the appendices. Trip distribution assumptions were presented to and reviewed and approved by City staff before the analysis was conducted. -2- Response to Comment 8 The TIA explains on page 22 that: " .. the proposed project will result in a shift of traffic patterns to and from the site" and that" ... while the proposed project will result in an overall increase in daily trips,, there will be a reduction of trips on some intersection movements and an increase on others in each of the morning and evening peak hours" The slight improvement in LOS at some intersections is further explained on page 40, and again on page 49, which says, 'The project- related impact of the project at some of the study intersections would be negative (an improvement in ICU), once again reflecting the reduction in existing office trips, which would more than offset the trips that would be added as a result of the proposed residential development in the evening peak hour at some intersections. As a result, some intersections would improve slightly as a result of the project." Response to Comment 9 This is incorrect. Project #5 is the Koll Project site, which is adjacent to the Uptown Newport project site. Response to Comment 10 The freeway analysis was carried to beyond the intersection study area, and through enough major interchanges and freeway junctions to allow project traffic to dissipate into the adjacent developments along the way. The project traffic was shown to not cause degradation in freeway operations under any scenario. Response to Comment 11 Future year traffic forecasts were developed in two different ways, depending on the jurisdiction in which the intersection is located. - For intersections in the City of Newport Beach, future traffic forecasts are developed using the traffic Growth Plus Approved Projects methodology required by the Traffic Phasing Ordinance (TPO). This methodology does not account for changes in traffic that could occur as a result of changes in land use, congestion, or new improved infrastructure. - For intersections in the City of Irvine, Irvine provided forecast data from the Irvine Traffic Analysis Model (ITAM). This gravity model is more sensitive to area -wide changes and may re- direct traffic in response to changes in land use, congestion, or new / improved infrastructure. -3-