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HomeMy WebLinkAbout12 - PC Appeal for 2240 University Drive - CorrespondenceRecieved After Agenda Printed Item No. 12 March, 25, 2014 CSA STRATEGIES ® ®® March 24, 2014 Honorable Mayor and Members of the City Council City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Subject: Newport Jewish Center Appeal of the Planning Commission's Decision to Approve Conditional Use Permit No. UP2013 -023 for 2240 University Drive (PA2013 -206) Dear Honorable Mayor and Member of the City Council; This letter is submitted on behalf of the Newport Jewish Center as written testimony prepared by CSA Strategies in support of the Conditional Use Permit No. UP2013 -023 application ( "CUP ") as filed by the Stein Holdings LLC and the Newport Jewish Center ("Center" or "Newport Jewish Center") for the building located at 2040 University Drive, Newport Beach, California ("Building"). CSA Strategies was commissioned by the Newport Jewish Center to review 1) the CUP application filed by the Newport Jewish Center; 2) the City's General Plan, Zoning Map and Ordinance; 3) the City of Newport Beach Municipal Code; 4) the provisions of the California Environmental Quality Act ( "CEQA ") and the Guidelines for the Implementation of CEQA ( "CEQA Guidelines "); 4) the Agenda Reports and attachments of the January 23, 2014 Planning Commission's public hearing on the proposed CUP application and the March 25, 2014 City Council public hearing on the appeal of the CUP; and 5) all other relevant data and materials, and to provide an independent analysis of the CUP application and the single objection that has been raised by Mr. Gary Jabara of Mobilitie, LLC. I understand that the January 23, 2014 Planning Commission's unanimous approval of the CUP was appealed to the City Council on February 6, 2014 by Mobilitie, LLC ( "Mobilitie ") represented by Mr. Gary Jabara ("Jabara"). I further understand that Mr. Jabara and Mobilitie recently purchased, completed tenant and exterior improvements, and has moved their corporate offices into the building located at 2220 University Drive which is located immediately adjacent and east of the Newport Jewish Center Building within Bay Corporate Plaza. The Bay Corporate Plaza ( "Complex ") is located at the most easterly extension of University Drive, east of Irvine Avenue. The Bay Corporate Plaza complex consists of five (5) individual parcels. Of the five (5) parcels four (4) are developed with multi-story buildings (one on each parcel), one of which is occupied by the Newport Jewish Center and another is occupied by Mobilitie. The fifth parcel consists of landscaping and 255 parking spaces which are provided for the non - exclusive use ( "common area parking ") of the occupants of the four buildings. The Complex is overseen by the Bay Corporate Plaza Association ( "Association ") and governed by CC & R's that were recorded in 1982. The owners of each of the four building parcels are on the Board of Directors of the Association. The Complex is managed by Anza Management which is an on -site manager company operated by the owner of Parcel 1. The building on Parcel 2 is vacant current on the market to be sold. I have reviewed the Agenda Item No. 12 Agenda Report ( "Agenda Report") for consideration by the City Council on this matter and as prepared by the Planning Division of the City of Newport Beach Community Development Department , together with all of the relevant attachments. This letter is therefore intended to be supplemental to that Agenda Report in order to establish a comprehensive administrative record. The contents of this letter and the Attachments are consistent with the contents of the Agenda Report. March 24, 2014 Page 2 of 90 My analyses of the relevant materials have led to the written comments that are set forth in Attachment "A" hereto. These comments are offered to the City Council for their consideration and are herein formally incorporated into the administrative record of this public hearing of March 25, 2014. My comments have led to the following opinions and conclusions: 1. The proposed use and activities that would be permitted by CUP No. UP2013 -023 appear to be consistent with the City of Newport Beach General Plan; 2. The proposed uses and activities that would be permitted by CUP No. UP2013 -023 appear to be allowed within the applicable zoning district of General Office and appear to comply with all applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the proposed uses and activities that would be permitted by CUP No. UP2013 -023 are compatible with the allowed uses in the vicinity of 2240 University Drive; 4. The site location of 2240 University Drive and which is part of Bay Corporate Plaza appears to be physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. The operation of the proposed uses and activities that would be permitted by CUP No. UP2013 -023 at the location of 2240 University Drive appear to not be detrimental to the harmonious and orderly growth of the City, nor 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 use. 6. The use of the Class I CEQA Categorical Exemption appears to be in compliance with the City's procedures and requirements with regards to the environmental review of projects and appears to be in compliance with the California Environmental Quality Act, the Guidelines for the implementation of the CEQA Guidelines, and the City of Newport Beach Council Policy Manual Number K -3 which addresses the City's Implementation Procedures for the California Environmental Quality Act. 7. The parking and trip generation associated with the proposed uses and activities of the Building in compliance with CUP No. UP2013 -023, including, but not limited to the Conditions of Approval and the Parking Management Plan, will not be detrimental to the occupancy and use of the adjacent buildings located within the Bay Corporate Plaza, will not have an adverse effect on the current parking facilities and will not have any effects overall that would be considered significant impacts or consequences associated with the approval of the CUP. 8. There is adequate substantial evidence in the administrative record to support the findings required of a conditional use permit as provided for in Section 20.52.020 (F) of the Municipal Code. 9. There does not appear to be any substantial evidence in the administrative record that would preclude or prevent the City Council from approving the CUP No. UP2013 -023 and the Conditions of Approval, and accepting and certifying the use of the Class 1 Categorical Exemption. 10. Based on the parking and trip generation study that was completed, the Conditions of Approval associated with CUP No. UP2013 -023, the required Parking Management Plan, the City Council Agenda Report as prepared by the City of Newport Beach Planning Staff, and the contents of this letter and Attachment "A ", it appears that the Newport Jewish Center use of the Building and the activities associated therewith will not infringe on the rights of the owners of the properties within the Bay Corporate Plaza, and will not March 24, 2014 Page 3 of 90 create an annoyance or nuisance that will interfere with the quiet enjoyment of each of the owners and tenants of the respective lots and parcels within the Complex. Based on the above, I and the representatives of the Newport Jewish Center strongly believe that in addition to the Staff Report presented to the Planning Commission, Planning Commission Resolution No. 1930 and the findings of the Planning Commission, and the City Council Agenda Report prepared by the Planning Department for Agenda Item #12 for the City Council Meeting of March 25, 2013, there appears to be ample and substantial evidence, including, but not limited to the data, and quantitative and/or qualitative analysis contained herein that would support the City Council making similar findings which would validate the denial of the appeal, justify the upholding of the Planning Commission's approval, and support the City Council's approval of the CUP, Conditions of Approval, and the certification of the Class 1 Categorical Exemption for the Newport Jewish Center. It is important to note as you read through these comments, that contrary to the allegations made by Mobilitie and Mr. Jabara, the Newport Jewish Center is not and cannot be compared to a traditional Jewish temple, such as Temple Beth Yahm or a church ministry, such as Mariners or Saddleback Church or Our Lady Queen of Angels Catholic Church of Newport Beach. Rather, the Newport Jewish Center is a community center with adult education programs and religious services, and is a multi- faceted educational outreach and special needs organization, serving the local constituency of Newport Beach with a small local community congregation. Further, as was so eloquently stated in the March 19, 2014 letter from Mr. Philip Levy, counsel to the Newport Jewish Center to Mr. Ross, counsel to Mr. Jabara: "I assure you, The Newport Jewish Center will be an excellent neighbor, with an extraordinarily light parking and traffic'foot print' While I believe you already know this, The Jewish Center does not wish to let even this opportunity pass without again attempting to meet with Mr. Jabara and put to rest any and all legitimate concerns he may have to the Jewish Center as a neighbor." In my opinion, it appears that the details that are stated herein provide the City Council with a clear understanding of the CUP, addresses all of the concerns and objections raised by Mr. Jabara and Mobilitie, and fully supports the, request of the Newport Jewish Center to gain the approval by the City Council of the CUP application. For reference, I have attached my credentials as the foundation for the preparation of this document. I believe that I have the experience and skill -set to be able to review the materials and provide the independent professional and technical analysis, opinions, and conclusions as set forth herein. I will be available to answer any questions or offer any additional comments at the public hearing on March 25, 2014. Thank you for your consideration and assistance. Sincerely, CSA Strategies W&WV/14& xaVo z Mr. Marshall B. Krupp President/CEO marshal lkruppkcsacompanies. com MBK:mbk Letter — Newport Jewish Center Written Testimony 2014 -03 -25 March 24, 2014 Page 4 of 90 Attachment A Attachments B -1 through B -8 CC: Ms. Leilani I. Brown, City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Rabbi Reuven Mintz Newport Jewish Center 2240 University Drive Newport Beach, California 92660 Ms. Brenda Wisneski, Deputy Community Development Director City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Ms. Leonie Mulvihill, Assistant City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 _ Mr. Stephen Abraham Law Offices of Stephen E. Abraham 1592 Pegasus Street Newport Beach, California 92660 Mr. Philip A. Levy Law Offices of Philip A. Levy 20 Rainbow Lake Irvine, California 92614 Ms. Carol Mentor McDermott, AICP Entitlement Advisors, LLC 5000 Birch, Suite 400 Newport Beach, California 92660 March 24, 2014 Page 5 of 90 Attachment A Newport Jewish Center - 2240 University Avenue PA2013 -206 Conditional Use Permit No. UP2013 -023 Appeal to the City Council of Panning Commission Decision of January 23, 2014 Appeal Allegations The appeal of the Planning Commission's January 23, 2014 decision approving the Conditional Use Permit No. UP2013 -023 ( "CUP ") was filed by Mr. Gary Jabara on behalf of Mobilitie, LLC. This appeal followed a letter and oral presentation offered at the Planning Commission's January 23, 2014 public hearing by Mr. Barry Ross, legal counsel to Mobilitie and Mr. Jabara. It is noted that of all of the testimony in the administrative record on the CUP, only Mr, Ross, representing Mr. Jabara and Mobilitie was opposed to the approval of the CUP, and objected and appealed the Planning Commission's decision. Mr. Jabara is identified as Founder /Chief Executive Officer of Mobilitie and has represented himself as the owner of the building at 2220 University Drive, identified as Parcel 4. The building at 2220 University Drive is fully occupied by Mobilitie. It is located immediately east of the building occupied by the Newport Jewish Center which is located on Parcel 3. In consideration of the proposed CUP, the materials contained herein address a number of topics, including the allegations in the appeal. The allegations are set forth in the appeal filed as signed by Mr. Jabara on February 6, 2014. The appeal documentation consisted of a one (1) page application which sets forth the following allegations without any supporting or detailed documentation: 1. This is the wrong zone for this use 2. The traffic and parking issues have not been properly considered 3. The propose use will violate the use restrictions in the CC & R's 4. The proposed use is not exempt from environmental review due to significant traffic and parking impacts 5. The findings required for the CUP have not been satisfied. The appeal further refers to the letter that Mr. Ross introduced into the Planning Commission's public record dated January 23, 2104 to support the appeal. The appeal application and the letter are attached hereto for reference. I know of no other data or analysis that has been submitted to the City by Mr. Jabara and/or Mobilitie, or their representatives, or have been made available to the public that supports the allegations. Further, there is no substantial evidence to support the conclusion that the CUP is not exempt from environmental review due to significant traffic and parking impacts. A thorough analysis of the contents contained herein, the City Council Agenda Report, and the Observed Parking and Trip Generation Study prepared by RK Engineering and dated March 14, 2014 ( "RK Engineering Study ") clearly shows that there is adequate and substantial evidence that the appeal and the allegations contained therein are not warranted. Newport Beach Community Development Department Recommendations It appears that the Planning Division of the Community Development Department, the Transportation and Development Services Division of the Public Works Department, and the Office of City Attorney have spent considerable time and resources to conduct a thorough analysis of the CUP application filed by the Newport March 24, 2014 Page 6 of 90 Jewish Center and the appeal filed by Mobilitie and Mr. Jabara. It appears that considerable focus was been directed to each of the allegations that were offered by Mr. Ross in his letter to the Planning Commission dated January 23, 2014 and the allegations that were offered by Mobilitie and Mr. Jabam in the appeal application dated February 6, 2014. Additional studies and analysis have been prepared to provide the City Council with a comprehensive record so that the City Council can make an informed decision. It appears that the City Council Agenda Report (Agenda Item No. 12) prepared for the City Council's March 25, 2014 meeting provides a valuable and comprehensive presentation of the facts in this matter based on data, and quantitative and/or qualitative analysis, and is in compliance with the City's General Plan, Municipal Code, and City Council policies. The Agenda Report also presents the Staff's recommendations as follows: a. Conduct a de novo public hearing; b. Find that the action is not subject to the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Guidelines; and c. Adopt Resolution No. 2014 -27, A Resolution of the City Council of the City of Newport Beach Upholding the Decision of the Planning Commission and Approving Conditional Use Permit No. UP2013 -023 for a Religious Assembly Use and a Joint use of Parking Located at 2240 University Drive (PA2013 -206) (Staff Report Attachment No. CC 1). The Newport Jewish Center has indicated that they fully support these recommendations and that they seek the City Council's concurrence. The Newport Jewish Center further has requested that the CUP be approved and that the appeal be denied. Coordination and Collaboration with Mobilitie The Newport Jewish Center has made every attempt to reach out to Mobilitie and Mr. Jabara to address the issues and concerns that has been brought forward. As a neighbor of Mobilitie and an anticipated member of the Bay Corporate Plaza Association, the representatives of the Newport Jewish Center have been persistent, diligent and consistent with their attempts to meet with Mr. Jabara and representatives of Mobilitie to understand their concerns and determine what could be done, other than abandoning the CUP application, that would address the objections raised by Mr. Jabara. These attempts have been consistently rejected and ignored by Mr. Jabara and all others affiliated with Mobilitie. Instead, Mr. Jabara has threatened the Newport Jewish Center and the City with litigation, pending the outcome of the City Council's decision. The allegations and assertions, along with the unwillingness of Mobilitie and Mr. Jabara to meet with the representatives of the Newport Jewish Center appears to be focused on their position that the "activities of a Jewish religious center ", as a part of the Bay Corporate Plaza complex, is environmentally, operationally and financially detrimental to the business of Mobilitie, without Mr. Jabara or Mobilitie even having a full understanding and clarity of what the Newport Jewish Center activities are and how they will be conducted. It appears that this. is based a factually incorrect and erroneous understanding by Mr Ross and a rigid biasness on the part Mr. Jabara, and is simply not supported by the administrative record. The following summarizes some of the communications to seek meetings with Mr. Jabara and the representatives of Mobilitie which were consistently rejected by Mr. Jabara and his representatives: 1. The Newport Jewish Center has been in escrow with Stein Holdings LLC the current owner of the Parcel 3 building since 2013. Mr. Stein and the Newport Jewish Center filed the CUP application with the City on September 30, 2013. March 24, 2014, Page 7 of 90 2. In late 2013, Mr. Stein reached out to Liana Almazan, property managers for Mr. Jabara and advised her of the pending sale of his building, the intentions of the Newport Jewish Center, and sought conversations with Mr. Jabara. 3. On December 13, 2013, Mr. Jabara sent a return email to Mr. Stein expressing his concerns and objections to the use of the building for the Newport Jewish Center. He stated his concerns and indicated his "willingness" to meet with Mr. Stein. 4. On December 16, 2013, Mr. Stein responded with an email asking Mr. Jabara for his available times to meet and indicated that representatives of the Newport Jewish Center (the new owners of the building) wanted to meet with Mr. Jabara. 5. On December 16, 2013, Mr. William Meehan, legal counsel for Mr. Jabara sent an email and letter to Mr. Stein detailing Mr. Jabara's opposing position and indicating that all correspondences to Mr. Jabara were to be sent to Mr. Meehan. 6. On December 17, 2013, Ms. Amber McLean sent an email to Mr. Stein on behalf of Mr. Meehan, along with an attached letter indicating that if Mr. Stein had any questions he should contact Mr. Meehan. The attached letter dated December 17, 2013 set forth the continued objections of the use of the Building by the Newport Jewish Center based on a number of unsubstantiated allegations and assertions. 7. On December 20, 2013, Ms. Carol McDermott, planning consultant for the Newport Jewish Center sent an email to Mr. Meehan requesting a chance to meet with Mr. Meehan on December 23, 2013 or January 9, 2013. 8. On December 20, 2013 Ms. McDermott sent an immediate follow -up email to Mr. Meehan encouraging Mr. Meehan to meet with representatives of the Newport Jewish Center. 9. On January 10, 2014, Ms. McDermott sent an additional email to Mr. Meehan again requesting to meet with Mr. Jabara and /or Mr. Meehan to discuss the activities of the Newport Jewish Center and the objections of Mr. Jabara. 10. On January 15, 2014, Ms. McDermott sent an email directly to Mr. Jabara expressing the interest of the representatives of the Newport Jewish Center to meet and fully describe the Center's proposal and advising him that he may have received the Public Hearing notice for the January 23, 2014 Planning Commission meeting on the matter. She offered to meet with Mr. Jabara and provide a briefing on the CUP prior to the public hearing. 11. Following the Planning Commission Public Hearing on the consideration and approval of the CUP application and after hearing Mr. Barry Ross speak on behalf of Mr. Jabara opposing the CUP, Rabbi Reuven Mintz sent an email to Mr. Ross seeking to meet with Mr. Ross and Mr. Jabara to address Mr. Jabara's concerns. 12. On January 29, 2014, Mr. Ross sent an email to Rabbi Mintz indicating that he would forward the request of Rabbi Mintz to Mr. Jabara. 13. On February 10, 2014, after not hearing from Mr. Meehan or Mr. Jabara, Ms. McDermott called Ms. Liana Almazan and left a message, but did not receive a return call. 14. In an attempt to gain further information and understanding of the allegations set forth in the appeal, I sent a letter dated March 5, 2014 to Mr. Jabara, with copies to Mr. Christos Karmis, President of Mobilitie, Inc.; Mr. Barry Ross, counsel for Mobilitie, Inc. and Mr. Jabara; Mr. Milford Dahl, Jr., counsel to Mobilitie and Mr. Jabara; Mr. David Kiff, City Manager of the City of Newport Beach and Rabbi March 24, 2014 Page 8 of 90 Reuven Mintz of the Newport Jewish Center summarizing my knowledge of the situation and requesting a meeting between Mr. Jabara, myself, representatives of Mr. Jabara's team, and representatives of the Newport Jewish Center team. 15. On Friday, March 7, 2014 Mr. Philip Levy, Counsel for the Newport Jewish Center, contacted Mr. Dahl regarding legal matters relating to this matter. Mr. Levy sought a meeting between the parties to attempt to reconcile these matters. 16. Also, on Friday, March 7, 2014, I spoke by telephone with Mr. Dahl and he agreed that he would discuss my request with Mr. Jabara and Mr. Meehan (Mr. Dahl's counsel colleague) and reply back to me. He agreed that the ball was in his court to pursue the meeting request and obtain a reply from Mr. Jabara. 17. On March, 17, 2014, Mr. Dahl contacted Mr. Levy and advised Mr. Levy that Mr. Jabara had no interest in meeting and again further advised Mr. Levy of the objections of Mr. Jabara. 18. Also, on March 17, 2014, Mr. Dahl called me and advised me that Mr. Jabara did not have any interest in meeting with me or members of the Newport Jewish Center team to discuss the possible resolution of this matter. Mr. Dahl indicated that Mr. Jabara felt that the use of the Building by the Newport Jewish Center was not a compatible use with his Mobilitie offices and that he wanted to see what the decision of the City Council and the Court would be. He also reinforced Mr. Jabara's position that the activities of the Newport Jewish Center would significantly and adversely reduce the value of the Mobilitie building resulting in Mr. Jabara losing millions of dollars. I informed Mr. Dahl that the Newport Jewish Center would be willing to meet with Mr. Jabara at any time prior to or after the decision of the City Council to preclude the necessity for litigation which would be of value to the City, to Mr. Jabara and to the Newport Jewish Center. As a result of the March 17, 2014 telephone call, representatives of the Newport Jewish Center have been unable to meet with Mr. Jabara to address this matter. 19. On March 19, 2014, Mr. Ross sent me an email in response to my March 5, 2014 letter to Mr. Jabara, wherein he again reinforced the position that Mobilitie LLC did not wish to meet with me or discuss the Newport Jewish Center. It is important to note that Mr. Ross appears to be suggesting in his letter that the outcome of the City Council's decision will lead to the points that he intended to present to a judge of the Superior Court of Orange County. In essence, the decision to pursue litigation appears to be already made. The letter states: "My client, Mobilitie, LLC has requested that I respond to your letter dated March 4, 2014. Mobilitie, LLC does not wish to meet with you to discuss the Chabad Jewish Center of Newport Beach. This is not a reflection on you, your letter or your client. Rather, Mobilitie, LLC wishes to pursue its first amendment rights to petition the government to address its grievances concerning the placement of a religious institution in the commercial office park that is zoned for commercial use by the City of Newport Beach and restricted to a commercial use by Section 11.1 of the CC &R's that govern Bay Corporate Plaza. At this juncture, I do not wish to discuss the points that I presented to the Planning Commission, as well as the additional points that I will present to the City Council and/or the points that I may ultimately present to a judge of the Orange County Superior Court. At the appropriate time, I will present the appropriate points." Throughout this entire timeframe, Mr. Jabara and representatives of Mr. Jabara and Mobilitie have chosen to not meet, and have ignored all requests to meet with the Newport Jewish Center, Rabbi Mintz, Carol McDermott, or any other representatives of the Newport Jewish Center. Instead, Mr. Jabara and representatives of Mobilitie have made allegations that are not supported by evidence in the record, have erroneously stated the activities of the Newport Jewish Center, and have speculated the consequences that they believe would affect them as a result of the Newport Jewish Center being a tenant in the Parcel 3 Building. This speculation has not been supported by any data, or quantitative and /or qualitative analysis that would support the speculations. March 24, 2014 Page 9 of 90 The most serious of these speculations is that the Newport Jewish Center being a "religious use" and tenant adjacent to Mobilitie would diminish the property values of the Mobilitie building and the Bay Corporate Plaza complex. It appears to be unfortunate that Mr. Jabara has attempted to differentiate the impacts of a "religious" tenant with the impacts of a "non- religious" tenant, and measured that in term of property values. This appears to be further exacerbated by the fact that the allegations and assertions made by Mr. Jabara and Mobilitie through their representatives are based on erroneous and factually incorrect information that misrepresents the CUP application and conclusions reach in the analysis of the application. I understand that others in the Community have been approached by representatives of the Newport Jewish Center to seek their assistance in scheduling a meeting with Mr. Jabara. I understand that to date Mr. Jabara has been unresponsive and has rejected all meeting requests. Finally, it appears that the unsupported allegations and assertions appear to be intended to mislead the City and to misrepresent the facts and conclusions, and might be considered to be self- serving and based on motives that may not be fully disclosed in the documentation that has been offered to date by Mobilitie and Mr. Jabara. Copies of entails and letters as have been discussed herein are attached for reference De Novo Public Hearing Chapter 20 -64 of the City's Municipal Code provide the procedures for appealing a Planning Commission decisions. Section 20.64.0303 (C) (3) provides that the appeal is to be heard "de novo ", as follows: "Conduct of Hearing a. Review of an appeal from a decision of the Zoning Administrator or Commission shall be de novo. Review of an appeal from a decision of a Hearing Officer shall be whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing. On review, the Council may sustain, reverse, or modify the decision of the Commission or Hearing Officer, or remand the matter for further consideration, which remand shall include either specific issues to be considered or a direction for a new hearing. b. The review authority is not bound by the decision that has been appealed or limited to the issues raised on appeal. c. The review authority shall hear testimony of the appellant, the applicant, and any other interested party. d. The review authority shall consider the same application, plans, and project- related materials that were the subject of the original decision, unless otherwise deemed relevant by the review authority." Mr. Jabara and Mobilitie Threat of Litigation It is highly noted that on February 7, 2014, a day after the appeal was filed on February 6, 2014, Mr. Jabara and Mobilitie through their attorney, Mr. Milford Dahl, Jr. of the law firm of Rutan and Tucker filed a Complaint for Declaratory Relief with the Superior Court for the County of Orange County, California (Case #30-2014 - 00703360-CU-CO-CJC) against Stein Holdings, LLC (owner of the Building) and the Newport Jewish Center (prospective owner of the Building) raising similar allegations as set forth in the appeal of the CUP to be considered by the City Council. The litigation seeks a judicial determination of the rights and duties of the Stein Holdings LLC and the Newport Jewish Center with respect to the use of the property pursuant to the CC &R's. The complaint is attached hereto and incorporated herein by reference. March 24, 2014 Page 10 of 90 This litigation was filed even before the City Council was given a reasonable opportunity to consider the appeal application at their March 25, 2015 public hearing. In a letter sent to me by Mr. Ross dated March 19, 2014, he again references the intent of Mr. Jabara and Mobilitie to pursue additional litigation in Orange County Superior Court pending the outcome of the City Council's March 25, 2014 public hearing. I have also been informed that Rutan and Tucker may have a conflict of interest with the City of Newport Beach in this matter. It is noted, that although Mr. Ross is not affiliated with Rutan and Tucker, it is understood that Mr. William Meehan of Rutan and Tucker is legal counsel to Mr. Jabara and Mobilitie, and Mr. Milford Dahl of Rutan and Tucker is legal counsel in the current legal matter brought against Mr. Stein and the Newport Jewish Center. It would appear that Mr. Roos and the firm of Rutan and Tucker are collaborating in these matters as evidenced by the fact that the recitals in the complaint filed by Mr. Dahl are equivalent to the allegations and assertions offered in the January 23, 2014 letter to the Planning Commission by Mr. Ross at their public hearing and the content of the appeal application. The Newport Jewish Center continues to believe that the administrative record provides substantial evidence to support that findings that have been offered in the Agenda Report and the proposed resolution of the City Council entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF THE PLANNING COMMISSION AND APPROVING CONDITIONAL USE PERMIT NO. UP2013 -023 FOR A RELIGIOUS ASSEMBLY USE AND A JOINT USE OF PARKING LOCATED AT 2240 UNIVERSITY DRIVE (PA2013- 206) ". The Newport Jewish Center believes that there is adequate data, and quantitative and /or qualitative analysis to enable the City Council to make an informed decision and support the CUP application. In that regard, the Newport Jewish Center has agreed to Condition of Approval #20 which reads as follows: #20 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 Newport Jewish Center including, but not limited to, the UP2013 -023 (PA2013 -206). 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. It has been and continues to be the intention and desire of the Newport Jewish Center that this matter be resolved in the best interests of all of the parties involved to preclude unnecessary litigation. It is the desire of the Newport Jewish Center that this matter comes to a successful conclusion with the City Council's decision on March 25, 2014. And, the Newport Jewish Center continues to be open to being a good neighbor with the all of the owners of the properties and the tenants of the Bay Corporate Plaza. It is unfortunate and disappointing that rather than respecting and recognizing the responsibilities and duties of the City Council to make an informed decision and discern the facts in this matter, it appears that Mr. Jabara and Mobilitie have already chosen to litigate the City Council's decision in the Courts even before the public hearing has been opened and the City Council has had an. opportunity to hear all of the testimony and evidence. One has to question the real motivation behind the opposition by Mr. Jabara and Mobilitie with regards to the CUP application. March 24, 2014 Page 11 of 90 However, the Newport Jewish Center is prepared to defend the decision of the City Council and bring the necessary resources to the table to sustain the decision of the City Council and the CUP sought by the Newport Jewish Center. It is unfortunate that Mr. Jabara, as the single opponent to the CUP has taken such an aggressive approach towards this matter, rather than sitting down with the Newport Jewish Center and the City to resolve this matter in an amicable way, as has been previously discussed. CUP Required Findings Section 20.52.020 (F) of the Municipal Code and the process of the approval of the CUP as set forth in the Municipal Code requires the City Council to make the following findings: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. In addition, the City Council must approve and certify the environmental document as being in compliance with the City's environmental procedures and the California Environmental Quality Act ( "CEQA ") and the Guidelines for the Implementation of CEQA ( "CEQA Guidelines "). In my opinion, the contents contained herein, the City Council Agenda Report as prepared by the City's staff, and the Study prepared by RK Engineering provide substantial evidence to enable the City Council to make the findings with regards to the CUP and the Class 1Categorical Exemption. The City Council Agenda Report as prepared by the City's staff and the RK Engineering Study are incorporated herein by reference. General Plan and Zoning The Bay Corporate Plaza is located in Statistical Area J5 as shown on Figure LU 10 of the City of Newport Beach General Plan. The property has a General Plan land use designation of CO -G - General Commercial Office. The General Plan land use designations of the adjoining properties are as follows: North - Single -Unit Residential Detached (RS -D) South - Open Space (OS) East - Single -Unit Residential Detached (RS -D) West - Public Facilities (PF) The City of Newport Beach Zoning Map designates the subject property to be Office General. The Zoning designations of the adjoining properties are as follows: North - Single Unit Residential (R -1 -6000) South - Planned Community (PC44) March 24, 2014 Page 12 of 90 East - Single -Unit Residential (R -1 -6000) West - Public Facilities (PF) The current uses of the property consist of a General Office Complex consisting of four (2) two story office buildings, parking facility and associated landscaped area. The adjoining current land uses are as follows: North - Residential Dwellings South - Upper Newport Bay Regional Park East - Residential Dwellings and open space West - YMCA of Orange County Newport –Mesa Family YMCA There does not appear to be a conflict between the proposed use of the Building under the CUP, the General Plan and Zoning Map designations of the Property and the surrounding properties, and the current uses of the Property and the surrounding properties in terms of general compatibility. This is further discussed herein in terms of the Zoning Code and General Plan provisions, Conditional Use Permit Process The Newport Jewish Center has submitted the appropriate City of Newport Beach application to obtain a conditional use permit for the proposed use of the second floor of the 2240 University Drive building (Parcel 3 of the Bay Corporate Plaza) ( "Building") in accordance with the City of Newport Beach Municipal Code. The property is designated Office General (OG) on the Zoning Map of the City. It is also designated General Commercial Office (CO -G) on the City's General Plan. Section 20.20.010 of the Municipal Code describes the purpose of commercial zoning districts and defines the "OG" zoning as follows: "20.20.010 Purposes of Commercial Zoning Districts. The purposes of the individual commercial zoning districts and the manner in which they are applied are as follows:... B. OG (Office — General) Zoning District. The OG Zoning District is intended to provide for areas . appropriate for administrative, professional, and medical offices with limited accessory retail and service uses..." Section 20.20.020 of the Municipal Code sets forth the allowed and permitted land uses within the various zones of the City and states as follows; "20.20.020 Commercial Zoning Districts Land Uses and Permit Requirements A. Allowed Land Uses. Tables 2 -4 and 2 -5 indicate the uses allowed within each zoning district and the permit required to establish the use, if any, in compliance with Part 5 of this title (Planning Permit Procedures). B. Prohibited Land Uses. Any table cell with " —" means that the listed land use is prohibited in that specific zoning district. C. Applicable Regulations. The last column in the tables ( "Specific Use Regulations ") may include a reference to additional regulations that apply to the use." Table 4 -5 of Section 20.20.020 describes the "Permitted by Right (P), Conditional Use Permit (CUP), Minor Use Permit (MUP) and Limited Tenn Permit (LTP) uses within the commercial zoning districts and the OG zone. The March 24, 2014 Page 13 of 90 use proposed by the Newport Jewish Center is considered to include assembly /meeting facilities within Table 2 -4. The uses and activities are allowed permitted uses within the OG zone subject to a Conditional Use Permit (CUP) and the provisions of Section 20.52.020 of the Municipal Code. The Newport Jewish Center CUP application provides for a portion of the second floor of the Building to be used for the assembly /meeting facilities as set forth under the category of "Recreation, Education and Public Assembly Uses in Table 2 -4. It is the only place in Table 2 -4 where such assembly /meeting facilities is referenced and allowed within the OG zone. Specifically, it states that such assembly /meeting facilities in the OG zone is permitted pursuant to a CUP, and further defines assembly /meeting facilities as follows: "Small -5,000 sq. ft. or less (religious assembly may be larger than 5,000 sq. ft.)" The Newport Jewish Center proposal includes assembly /meeting facilities of less than 5,000 square feet and is also intended for religious assembly. So clearly, the Newport Jewish Center use proposed is allowed and permitted subject to a conditional use permit and the applicable CUP findings. The size of the area of the assembly /meeting facilities have been specifically limited by the City to include a social hall seating area consisting of no more than 2,016 net square feet of assembly area and a multi - purpose room area of 1,100 net square feet, for a total of 3,116 net square feet of assembly /meeting room area. It is noted that the multi - purpose room is a single room that can be divided by movable partitions into three separate areas. It is also noted that the social hall consists of the 2,016 net square feet of assembly area and 934 net square feet of areas used for literature display, prayer shelves, reading tables, podium and the arch to hold religious items (i.e. Torah) and which is unavailable for assembly seating. It is noted that assembly /meeting facilities are also allowed permitted uses in the OA – Office Airport, OM – Office Medical, and OR - Office Regional zones with a CUP. It is also allowed in other commercial retail zones, mixed use zones, industrial zones, and special purpose zones with various conditional use permits or minor use permits, as applicable. So such assembly /meeting facilities are not uncommon in the office zones of the City. Section 20.52.020 of the Municipal Code provides the procedure and requirements for obtaining a conditional use permit, and states: "20.52.020 Conditional Use Permits and Minor Use Permits. A. Purpose. A conditional use permit or minor use permit provides a process for reviewing uses and associated operational characteristics that may be appropriate in the applicable zoning district, but whose effects on a site and surroundings cannot be determined before being proposed for a specific site. B. Applicability. A conditional use permit or a minor use permit is required to allow certain uses in residential and nonresidential zoning districts identified by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). Also see Section 20.52.030 for conditional use permits in residential zoning districts. C. Review Authority and Related Procedures. 1. Conditional Use Permits. Conditional use permits shall be approved, conditionally approved, or denied by the Commission or by the Hearing Officer as provided in Table 5 -1. 2. Minor Use Permits. Minor use permits shall be approved, conditionally approved, or denied by the Zoning Administrator. The Zoning Administrator may elect to refer any minor use permit application to the Commission for consideration and final action. March 24, 2014 Page 14 of 90 D. Application Filing, Processing, and Review. An application for a conditional use permit or minor use permit shall be filed and processed in compliance with Chapter 20.50 (Permit Application Filing and Processing). The application shall include all of the information and materials specified by the Director, together with the required fee in compliance with the City's fee schedule adopted by resolution. It is the responsibility of the applicant to provide evidence in support of the findings required by subsection (F) of this section (Findings and Decision). E. Project Review and Notice and Hearing Requirements. Each application shall be reviewed by the Director to ensure that the proposal complies with all applicable requirements of this Zoning Code. 1. Conditional Use Permits. The Commission or Hearing Officer shall conduct a public hearing on an application for a conditional use permit before a decision on the application. 2. Minor Use Permits. The Zoning Administrator shall conduct a public hearing on an application for a minor use permit before a decision on the application. 3. Notice and Hearing Requirements. Notice of the hearing shall be provided, and the hearing shall be conducted, in compliance with Chapter 20.62 (Public Hearings). F. Findings and Decision. The review authority may approve or conditionally approve a conditional use permit or minor use permit only after first finding all of the following: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. G. Post - Decision Procedures. The procedures and requirements in Chapter 20.54 (Permit Implementation, Time Limits, and Extensions), and those related to appeals and revocation in Part 6 of this title (Zoning Code Administration) shall apply following the decision on a conditional use permit or minor use permit application." The Newport Jewish Center, through the owner of the Property (Stein Holdings LLC — David Stein), did file an application with the City pursuant to the provisions of Chapter 20.50 of the Municipal Code on September 9, 2013 in accordance with Section 20.52.020 of the Municipal Code. The application included all of the information and materials specified by the Director of Community Development as set forth in the Conditional and Minor Use Permit Information Form of the City of Newport Beach, together with the required fees in compliance with the City's fee schedule which has been adopted by a resolution of the City Council. The Newport Jewish Center also provided materials and evidence in support of the findings required by Section 20.52.020 (F) of the Municipal Code, incorporated herein by reference. March 24, 2014 Page 15 of 90 The City has established written requirements and procedures for the filing and consideration of Minor and Conditional Use Permit applications. These include: 1. Guidelines for Planning Applications 2. Conditional and Minor Use Permit Information 3. Planning Permit Applications 4. Public Hearing Requirements The above written requirements and procedures are incorporated herein by reference. The document that is entitled "Conditional & Minor Use Permit Information" sets forth the documentation, information, materials, data and analysis that are to be submitted by an applicant in conjunction with the submittal of a conditional use permit application. The Newport Jewish Center did submit the conditional use permit application, along with the documentation, information, materials, data and analysis as required by the Director of Community Development. Section 20.50.60 of the Municipal Code states: "20.50.060 Initial Application Review. A. Review for Completeness. The Director shall review each application for completeness and accuracy before it is accepted as being complete. The determination of completeness shall be based on the City's applicable list of required application contents and any additional written instructions provided to the applicant in any preapplication conference, and/or during the initial application review period...." The City's list of required application contents and any additional written instructions provided to the applicant is set forth in the Conditional and Minor Use Permit Information Form and the other City published materials relating to CUP's. On January 9, 2014, the Director of Community Development (through assigned staff) found that the application of the Newport Jewish Center was complete and initiated the information and review process of the CUP that led to the Planning Commission Public Hearing on the CUP on January 23, 2014. The Notice of Complete Filing dated January 9, 2014 is incorporated herein by reference. As previously noted, the reviewing authority (Planning Commission and if appealed, the City Council) may approve or conditionally approve a conditional use permit only after first finding all of the following: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. March 24, 2014 Page 16 of 90 It is noted that the Planning Commission of the City of Newport Beach unanimously approved the CUP on January 23, 2014 after hearing all of the testimony offered in a duly noticed public hearing. They also approved certain conditions of approval, a Parking Management Plan, and Resolution No. 1930 entitled "A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2013 -023 FOR AN ASSEMBLY USE AND A JOINT USE OF PARKING LOCATED AT 2240 UNIVERSITY DRIVE (PA2013- 206) ". The resolution contained facts in support of the findings as required by Section 20.52.020 of the Municipal Code. These finding are addressed further herein. CEQA Review One of the allegations set forth in the appeal application is that "The proposed use is not exempt from environmental review due to significant traffic (trip generation) and parking impacts." This allegation is not supported by data, and quantitative and/or qualitative analysis contained in the appeal application. There is no substantial evidence to support the allegation. Section 20.50.80 of the CEQA Guidelines provides the that the a project, in this case the CUP application is to be reviewed by City in compliance with the California Environmental Quality Act (CEQA. Section 20.50.080 states: "20.50.080 Environmental Review. A. CEQA Review. After acceptance of a complete application, the project shall be reviewed in compliance with the California Environmental Quality Act (CEQA) to determine whether: 1. The project is not a project as defined by CEQA; 2. The project is exempt from the requirements of CEQA; 3. A negative declaration may be issued; 4. A mitigated negative declaration may be issued; or 5. An Environmental Impact Report (EIR) shall be required. B. Compliance with CEQA. These determinations and, where required, the preparation of appropriate environmental documents shall be in compliance with CEQA and applicable Council policies." The project has been reviewed by the City in accordance with the California Environmental Quality Act ( "CEQA") and the Guidelines for the implementation of CEQA ( "CEQA Guidelines "). The City determined that the project is categorically exempt in accordance with the Class 1 exemption as set forth in the CEQA Guidelines. Section 15301 of the CEQA Guidelines defines a Class 1 categorical exemption as follows: "Section 15301. Existing Facilities. Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The types of "existing facilities" itemized below are not intended to be all- inclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of an existing use. Examples include but are not limited to: March 24, 2014 Page 17 of 90 (a) Interior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances;..." The CUP will permit the operation of the uses and activities (including parking) proposed by the Newport Jewish Center, and the repair, maintenance and minor alteration of the interior of the private structure, facilities and building located at 2040 University Drive, Newport Beach. There is no exterior reconstruction, construction or retrofitting improvements that are proposed pursuant to the CUP. What is significant about this categorical exemption is that it applies to a proposed operation or use of an existing facility that is negligible or no expansion beyond that existing at the time of the City's determination. The existing use of the second floor of the Building is general office use and was approved for general office use in 1982 when the Bay Corporate Plaza was approved by the City. Except for the time when the Building may have been partially vacant, it appears that the Building has been used for general office since it was approved by the City. The previous tenant of the area of the second floor was general office use and the current tenant of the second floor area is general office use. There were in .1982 and currently no limitations on the number of persons that could be allowed to occupy the space, except for building and fire code requirements that could be addressed by specific fire safety measures that could be completed internal to the building. These fire code requirements can be considered plumbing and electrical modifications within the examples of a Class 1 categorical exemption. The Class 1 Existing Facilities exemption to CEQA provides a categorical exemption from CEQA review for the "operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features ...." Under this exemption, the City must analyze the difference between the existing setting and the future conditions with the new project or use in place to see whether the change will produce significant "environmental impacts". In this equation, the existing setting is commonly referred to as the "CEQA baseline." The City can view the Building as it was approved as the "baseline ". As an example, it appears based on a review of the utilization of the second floor area, the most recent prior tenant of the second floor had as many as 53 permanent employees occupying the space during normal 8:00 a.m. to 5:00 p.m. business hours. And, this did not include the utilization of two large conference and show rooms which appear to have been used regularly by visitors and guests. It appears also that the second floor area was used after normal business hours in the evening and on weekends. One of the measurements that drive occupancy is the parking demand required for the occupants of the second floor. As is described herein and in the RK Engineering Study, the parking demand for the use as proposed by the CUP is no greater than the parking demand for the occupancy of the prior tenant, and more importantly no greater than the City's parking requirements as set forth in the City's Municipal Code for the Building which were the same requirements that were imposed at the time that the Building was approved by the City. Also, there is no need to expand the current parking facilities that serves the Building as it has been found through data collected and quantitative and/or qualitative analysis as set forth in the RK Engineering Study that there is adequate parking currently available to serve the proposed use of the Building. It appears therefore that the proposed CUP and subsequent use of the Building is negligible and not an expansion of the use beyond that existing at the time of the City's determination of the approval of the Building in 1982. A similar conclusion can be reached with regards to the any traffic (trip generation) increase that might be a measurement against the CEQA baseline. As is set forth in the RK Engineering Study, the trip generation of the proposed uses and activities provided for in the CUP, will not increase trips beyond the baseline using the City's formula for average daily trips. The Merriam- Webster dictionary defines negligible as "so small or unimportant or of so little consequence as to warrant little or no attention ". The Oxford dictionary defines negligible as "So small or unimportant as to be not worth considering; insignificant." March 24, 2014 Page 18 of 90 In a more practical sense, "negligible" refers to the quantities so small that they can be ignored (neglected) when studying the larger effect. A quantity can be said to be negligible when it is safe to ignore (neglect) it in the present case, within the margins for error that have been agreed to be acceptable in that case. Therefore, the consideration of "negligible or no expansion" of the existing uses has been weighed against the prior and existing general office use of the second floor area. It appears that considering the whole of the CUP application and the uses and activities that are proposed to be undertaken pursuant to the CUP, the Conditions of Approval and the Parking Management Plan, the project specific and cumulative consequences will not be significant or important enough to be worth considering in term of the intent and purpose of CEQA and the CEQA Guidelines, and has already been determined by the Secretary of Resources. This is discussed further herein. Inasmuch as the use of the second floor is not expanding the square footage of the floor area, the occupancy does not demand parking beyond the City's parking requirements and the Conditions of Approval, and the use is similar to the general office use that is allowed in the zoning of the property, a conclusion can reasonably be made that the activity is negligible or is not an expansion. In addition, the size of the area of the assembly /meeting facilities have been specifically limited by the City's conditions of approval to include a social hall seating area consisting of no more than 2,016 net square feet of assembly area and a multi - purpose room area of 1,100 net square feet, for a total of 3,116 net square feet of assembly /meeting room area. It is noted that the multi- purpose room is a single room that can be divided by movable partitions into three separate areas. It is also noted that the social hall consists of the 2,016 net square feet of assembly area and 934 net square feet of areas used for literature display, prayer shelves, reading tables, podium and the arch to hold religious items (i.e. Torah) and which is unavailable for assembly seating. Section 15002 of the CEQA Guidelines sets forth the general concepts of the CEQA Guidelines. Section 15002 states: "(a) Basic Purposes of CEQA. The basic purposes of CEQA are to: (1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. (2) Identify ways that environmental damage can be avoided or significantly reduced. (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved... (d) Project. A "project" is an activity subject to CEQA. The term "project" has been interpreted to mean far more than the ordinary dictionary definition of the term. See Section 15378.... (g) Significant Effect on the Environment. A significant effect on the environment is defined as a substantial adverse change in the physical conditions which exist in the area affected by the proposed project. See Section 15382. Further, when an EIR identifies a significant effect, the government agency approving the project must make findings on whether the adverse environmental effects have been substantially reduced or if not, why not. See Section 15091. (h) Methods for Protecting the Environment. CEQA requires more than merely preparing environmental documents. The EIR by itself does not control the way in which a project can be built or carried out. Rather, March 24, 2014 Page 19 of 90 when an EIR shows that a project could cause substantial adverse changes in the environment, the governmental agency must respond to the information by one or more of the following methods: (1) Changing a proposed project; (2) Imposing conditions on the approval of the project; (3) Adopting plans or ordinances to control a broader class of projects to avoid the adverse changes; (4) Choosing an alternative way of meeting the same need; (5) Disapproving the project; (6) Finding that changes in, or alterations, the project are not feasible. (7) Finding that the unavoidable, significant environmental damage is acceptable as provided in Section 15093... (k) Three Step Process. An agency will normally take up to three separate steps in deciding which document to prepare for a project subject to CEQA. (1) In the first step the lead agency examines the project to determine whether the project is subject to CEQA at all. If the project is exempt, the process does not need to proceed any farther. The agency may prepare a notice of exemption. See Sections 15061 and 15062..." Section 15378 of the CEQA Guidelines defines a "project" as follows: (a) "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following: (1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100- 65700. (2) An activity undertaken by a person which is supported in whole or in part through public agency contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (b) Project does not include: (1) Proposals for legislation to be enacted by the State Legislature; (2) Continuing administrative or maintenance activities, such as purchases for supplies, personnel- related actions, general policy and procedure making (except as they are applied to specific instances covered above); (3) The submittal of proposals to a vote of the people of the state or of a particular community that does not involve a public agency sponsored initiative. (Stein v. City of Santa Monica, (1980) 110 Cal. App. 3d 458; Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165); March 24, 2014 Page 20 of 90 (4) The creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment. (c) The term "project" refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term "project" does not mean each separate governmental approval. (d) Where the lead agency could describe the project as either the adoption of a particular regulation under subdivision (a)(1) or as a development proposal which will be subject to several governmental approvals under subdivisions (a)(2) or (a)(3), the lead agency shall describe the project as the development proposal for the purpose of environmental analysis. This approach will implement the lead agency principle as described in Article 4." Clearly, the application for a CUP requires discretionary approval by the City and is considered a "project ". However, the first step in the CEQA process is to determine if the project is "categorically exempt" or is subject to further review pursuant to the CEQA Guidelines. In this case, the CUP has been determined to be categorically exempt by the City. Section 15354 of the CEQA Guidelines defines a "categorical exemption" project as follows; "Categorical exemption" means an exemption from CEQA for a class of projects based on a finding by the Secretary for Resources that the class of projects does not have a significant effect on the environment. Section 15300 of the CEQA Guidelines states: "Section 21084 of the Public Resources Code requires these guidelines to include a list of classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be exempt from the provisions of CEQA. In response to that mandate, the Secretary for Resources has found that the following classes of projects listed in this article do not have a significant effect on the environment, and they are declared to be categorically exempt from the requirement for the preparation of environmental documents." Section 15300.2 (b) of the CEQA Guidelines states: "(c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." There is no substantial evidence to show that the proposed CUP and the uses and activities allowed under the CUP will have a significant effect on the environment due to unusual circumstances. There are no unusual circumstances involved with the use of the Building and the parking facility as proposed in the CUP application. Section 15300.4 of the CEQA Guidelines further states: "Each public agency shall, in the course of establishing its own procedures, list those specific activities which fall within each of the exempt classes, subject to the qualification that these lists must be consistent with both the letter and the intent expressed in the classes. Public agencies may omit from their implementing . procedures classes and examples that do not apply to their activities, but they may not require EIRs for projects described in the classes and examples in this article except under the provisions of Section 15300.2." March 24, 2014 Page 21 of 90 In the normal course of the business of the City, the City has identified various types of projects, such as CUP's (such as the one that has have been applied for in this case) to be considered to be categorically exempt under the City's environmental requirements. Section 15382 of the CEQA Guidelines define "significant effect" as follows" "Significant effect on the environment" means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant." It is the intent of the implementation of CEQA that when a "significant effect on the environment" is identified that it is mitigated. Section 15370 of the CEQA Guidelines defined "mitigation" as follows: "Mitigation" includes: (a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. (e) Compensating for the impact by replacing or providing substitute resources or environments. The use of an environmental document such as a Negative Declaration, Mitigated Negative Declaration or Environmental Impact Report is to be used only if there is a potential that a project may have a significant effect on the environment. It appears that there is no substantial evidence, including, but not limited to, data, and quantitative and /or qualitative analysis that was or has been submitted to the City 1) prior to the consideration of the CUP by the Planning Commission on January 23, 2014; or 2) which was been made a part of the record of the Planning Commission public hearing on January 23, 2104; or 3) which was or has been submitted to the City in conjunction with the filing of the appeal with the City by Mobilitie LLC or Mr. Jabara, that suggests that the uses and activities authorized by the CUP has any specific environmental impacts that would have a significant effect on the environment and which would require the preparation of a Negative Declaration, Mitigated Negative Declaration or Environmental Impact Report, including the application of mitigation measures. Mobilitie and Mr. Jabara have simply filed a letter and an appeal document that has set forth unsupported allegations and assertions containing erroneous and inaccurate information, and conclusory statements unsupported by factual information. The CEA Guidelines provides for the preliminary review of projects to determine the applicable environmental documentation and review process. Section 15060 of the CEQA Guidelines state: "(a) A lead agency is allowed 30 days to review for completeness applications for permits or other entitlements for use. While conducting this review for completeness, the agency should be alert for environmental issues that might require preparation of an EIR or that may require additional explanation by the applicant Accepting an application as complete does not limit the authority of the lead agency to require the applicant to submit additional information needed for environmental evaluation of the project. Requiring such additional information after the application is complete does not change the status of the application. March 24, 2014 Page 22 of 90 (b) Except as provided in Section 15111, the lead agency shall begin the formal environmental evaluation of the project after accepting an application as complete and determining that the project is subject to CEQA. (c) Once an application is deemed complete, a lead agency must first determine whether an activity is subject to CEQA before conducting an initial study. An activity is not subject to CEQA if (1) The activity does not involve the exercise of discretionary powers by a public agency; (2) The activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; or (3) The activity is not a project as defined in Section 15378. (d) If the lead agency can determine that an EIR will be clearly required for a project, the agency may skip further initial review of the project and begin work directly on the EIR process described in Article 9, commencing with Section 15080. In the absence of an initial study, the lead agency shall still focus the EIR on the significant effects of the project and indicate briefly its reasons for determining that other effects would not be significant or potentially significant" Further and in this case, the CEQA Guidelines provide for the review of a project to determine if it is exempt. Section 15061 of the CEQA Guidelines states: "(a) Once a lead agency has determined that an activity is a project subject to CEQA,,a lead agency shall determine whether the project is exempt from CEQA. (b) A project is exempt from CEQA if (1) The project is exempt by statute (see, e.g. Article 18, commencing with Section 15260). (2) The project is exempt pursuant to a categorical exemption (see Article 19, commencing with Section 15300) and the application of that categorical exemption is not barred by one of the exceptions set forth in Section 15300.2. (3) The activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. (4) The project will be rejected or disapproved by a public agency. (See Section 15270(b)). (5) The project is exempt pursuant to the provisions of Article 12.5 of this Chapter. (c) Each public agency should include in its implementing procedures a listing of the projects often handled by the agency that the agency has determined to be exempt. This listing should be used in preliminary review. (d) After determining that a project is exempt, the agency may prepare a notice of exemption as provided in Section 15062. Although the notice may be kept with the project application at this time, the notice shall not be filed with the Office of Planning and Research or the county clerk until the project has been approved. (e) When a non - elected official or decision making body of a local lead agency decides that a project is exempt from CEQA, and the public agency approves or determines to carry out the project, the decision that the project is exempt may be appealed to the local lead agency's elected decision making body, if one exists. A local lead agency may establish procedures governing such appeals." March 24, 2014 Page 23 of 90 In this case, the City has determined that the application for the CUP was and is exempt in accordance with CEQA To further support this determination, one can look to the City of Newport Beach Council Policy Manual. Therein is set forth Policy Number K -3 which addresses the City's Implementation Procedures for the California Environmental Quality Act. Section A of Policy K -3 states: "The intent of this policy statement is to protect the environment of the City of Newport Beach, to comply with the California Environmental Quality Act (CEQA), and to implement the basic principles, objectives, and criteria contained in the Guidelines adopted by the Secretary for Resources pursuant to the provisions of California Environmental Quality Act, as amended. "These implementation procedures are intended to satisfy the requirements of Sec. 15022 of the CEQA Guidelines, and are designed to be used in conjunction with the CEQA statutes and Guidelines. In the event that any provision of this policy is found to be inconsistent with CEQA, the Guidelines or case law, this policy shall be revised to comply with applicable law." Section D of Policy K -3 provides for `Environmental Determinations ". Section D (2) of Policy K -3 states: "CEQA and the Guidelines provide that the following types of projects are exempt from the requirement to prepare an Initial Study unless there are special circumstances that could result in significant environmental effects. a. Statutory Exemptions. Activities that qualify for a statutory exemption as provided under Sec. 15260 et seq. of the Guidelines do not require further environmental review. b. Categorical Exemptions. The various classes of categorical exemptions are contained in Section 15300 et seq. of the Guidelines. The discussion of exceptions contained in Section 15300.2 shall apply particularly to projects and activities that would affect the shoreline, bluffs, wetlands, public views and other sensitive environmental resources. The Community Development Director shall have the authority to interpret the applicability of Categorical Exemptions to particular projects, including City- sponsored activities (e.g., Zoning Code amendments, assessment districts, construction and maintenance of utilities) and privately- initiated applications. c. "General Rule" Exemptions. During the preliminary review of an application, each discretionary project that is not covered under a statutory or categorical exemption shall be evaluated to determine whether it qualifies for an exemption under the general rule contained in Sec. 15061(b) (3) of the Guidelines, which states, "Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." The Guidelines further encourage agencies to adopt a list of project types that would qualify for the general rule exemption. Project types which qualify for this exemption include, but are not limited to: i. Minor changes to the Municipal Code which do not authorize physical development. ii. Minor changes to public infrastructure such as installing trees; replacing or upgrading streetlights, traffic signals, etc.; and other public improvements of a minor nature. iii. Administrative City actions such as budget amendments, professional services agreements, etc, which do not involve projects which affect the physical environment. March 24, 2014 Page 24 of 90 Determination. The Community Development Director shall have the authority to determine the applicability of exemptions for all public and privately initiated projects. Action by the Decision - Making Body. Prior to approval of any project that is exempt from CEQA, such a finding shall be affirmed by the decision - making body. Notice of Exemption. After approval of a project that was found to be exempt, the Community Development Director may prepare and file a Notice of Exemption as provided under Section 15062 of the Guidelines." Section D (3) of Policy K -3 states: "If a project is subject to CEQA and is not exempt under one of the provisions listed under Section D.2, the Community Development Director shall conduct an Initial Study according to the requirements contained in Section 15063 of the Guidelines..." In this case, the proposed CUP is exempt and therefore no Initial Study was or is required. The exemption also precludes the necessity for the preparation of other environmental documentation, such as a Negative Declaration, Mitigated Negative Declaration or Environmental Impact Report, including the application of mitigation measures. Inasmuch as categorical exempted projects have already been determined by the Secretary for Resources as a class of projects that does not have a significant effect on the environment, the definition of significant effect and the procedures for determining significant effect do not apply. However for reference, the provision of Section 15064 of the CEQA Guidelines which sets forth the CEQA requirements for Determining the Significance of the Environmental Effects Caused by a Project has been provided herein, as follows: "(a) Determining whether a project may have a significant effect plays a critical role in the CEQA process. (1) If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment, the agency shall prepare a draft EIR. (2) When a final EIR identifies one or more significant effects, the lead agency and each responsible agency shall make a finding under Section 15091 for each significant effect and may need to make a statement of overriding considerations under Section 15093 for the project. (b) The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data An ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area. (c) In determining whether an effect will be adverse or beneficial, the lead agency shall consider the views held by members of the public in all areas affected as expressed in the whole record before the lead agency. Before requiring the preparation of an FIR, the lead agency must still determine whether environmental change itself might be substantial. (d) In evaluating the significance of the environmental effect of a project, the lead agency shall consider direct physical changes in the environment which may be caused by the project and reasonably foreseeable indirect physical changes in the environment which may be caused by the project. March 24, 2014 Page 25 of 90 (1) A direct physical change in the environment is a physical change in the environment which is caused by mud immediately related to the project. Examples of direct physical changes in the environment are the dust, noise, and traffic of heavy equipment that would result from construction of a sewage treatment plant and possible odors from operation of the plant. (2) An indirect physical change in the environment is a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project. If a direct physical change in the environment in turn causes another change in the environment, then the other change is an indirect physical change in the environment. For example, the construction of a new sewage treatment plant may facilitate population growth in the service area due to the increase in sewage treatment capacity and may lead to an increase in air pollution. (3) An indirect physical change is to be considered only if that change is a reasonably foreseeable impact which may be caused by the project. A change which is speculative or unlikely to occur is not reasonably foreseeable. (e) Economic and social changes resulting from a project shall not be treated as significant effects on the environment. Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant effect on the environment. Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine that the physical change is a significant effect on the environment. If the physical change causes adverse economic or social effects on people, those adverse effects may be used as a factor in determining whether the physical change is significant. For example, if a project would cause overcrowding of a public facility and the overcrowding causes an adverse effect on people, the overcrowding would be regarded as a significant effect. (f) The decision as to whether a project may have one or more significant effects shall be based on substantial evidence in the record of the lead agency. (1) If the lead agency determines there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR (Friends of B Street v. City of Hayward (1980) 106 Cal. App. 3d 988). Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68). (2) If the lead agency determines there is substantial evidence in the record that the project may have a significant effect on the environment but the lead agency determines that revisions in the project plans or proposals made by, or agreed to by, the applicant would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur and there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment then a mitigated negative declaration shall be prepared. (3) If the lead agency determines there is no substantial evidence that the project may have a significant effect on the environment, the lead agency shall prepare a negative declaration (Friends of B Street v. City of Hayward (1980) 106 Cal. App. 3d 988). (4) The existence of public controversy over the environment effects of a project will not require preparation of an EIR if there is no substantial evidence before the agency that the project may have a significant effect on the environment. March 24, 2014 Page 26 of 90 (5) Argument, speculation, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous, or evidence that is not credible, shall not constitute substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. (6) Evidence of economic and social impacts that do not contribute to or are not caused by physical changes in the environment is not substantial evidence that the project may have a significant effect on the environment. (7) The provisions of sections 15162, 15163, and 15164 apply when the project being analyzed is a change to, or further approval for, a project for which an EIR or negative declaration was previously certified or adopted (e.g. a tentative subdivision, conditional use permit). Under case law, the fair argument standard does not apply to determinations of significance pursuant to sections 15162, 15163, and 15164. (g) After application of the principles set forth above in Section 15064(f), and in marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following principle: If there is disagreement among expert opinion supported by facts over the significance of an effect on the environment, the Lead Agency shall treat the effect as significant and shall prepare an EIR. (h) (1) When assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project's incremental effect, though individually limited, is cumulatively considerable. "Cumulatively considerable" means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. (2) A lead agency may determine in an initial study that a project's contribution to a significant cumulative impact will be rendered less than cumulatively considerable and thus is not significant. When a project might contribute to a significant cumulative impact, but the contribution will be rendered less than cumulatively considerable through mitigation measures set forth in a mitigated negative declaration, the initial study shall briefly indicate and explain how the contribution has been rendered less than cumulatively considerable. (3) A lead agency may determine that a project's incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program (including, but not limited to, water quality control plan, air quality attainment or maintenance plan, integrated waste management plan, habitat conservation plan, natural community conservation plan, plans or regulations for the reduction of greenhouse gas emissions) that provides specific requirements that will avoid or substantially lessen the cumulative problem within the geographic area in which the project is located. Such plans or programs must be specified in law or adopted by the public agency with jurisdiction over the affected resources through a public review process to implement, interpret, or make specific the law enforced or administered by the public agency. When relying on a plan, regulation or - program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project's incremental contribution to the cumulative effect is not cumulatively considerable. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding that the project complies with the specified plan or mitigation program addressing the cumulative problem, an EIR must be prepared for the project. (4) The mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project's incremental effects are cumulatively considerable." Section 15384 of the CEQA Guidelines defines "substantial evidence" in the record as follows: March 24, 2014 Page 27 of 90 "(a) "Substantial evidence" as used in these guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence. (b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." There is no data, materials, content or other information contained in the application for the CUP, the Agenda Staff Report to the City Council, or the administrative record of written or oral comments to date, that provides any substantial evidence that a fair argument can be made to support a conclusion that the "project' ' associated with the CUP will have the potential for any significant environmental effect on the environment as defined in the CEQA Guidelines requiring further environmental review, mitigation measures or a statement of overriding. consideration. Further there is no data, materials, content or other information contained in the record that suggests that the uses and activities authorized by the CUP has any specific environmental impacts that would have a potential for a significant effect on the environment and which would require the preparation of a Negative Declaration, Mitigated Negative Declaration or Environmental Impact Report, including the application of mitigation measures. On the contrary, the allegations and assertions offered in the appeal documentation provide arguments, speculation, and unsubstantiated opinions or narrative which is clearly erroneous or inaccurate. This will be further discussed herein. Negligible or No Expansion of Existing Use As noted, the categorical exemption for a Class 1 project is weighed on the basis of "negligible or no expansion of use beyond that existing at the time of the lead agency's determination ". It is also noted that the existing and prior use was general office. The CUP does not propose to increase the square footage of the Building or make any exterior improvement that would expand the footprint of the Building or provide for additional square footage that could be used for the proposed use under the CUP. The Building was original approved by the City and constructed according to City approved building plans to contain 17,885 gross square feet and 16,932 net square feet. The Building is part of a four (4) building complex that was approved to contain 67,951 gross square feet and 64,026 net square feet. Section 20.40.040 of the Municipal Code provides for the off -street parking requirements associated with the Building. Office uses in the OG zone are required to have 1 space per 250 net square feet of net floor area up to the first 50,000 net square feet. Assembly /meeting facilities are required to have 1 parking space per 3 seats or 1 parking space for 35 net square feet for assembly purposes. As stated in the Municipal Code: "These standards shall be considered the minimum required to preserve the public health, safety, and welfare, and more extensive parking provisions may be required by the review authority in particular circumstances. Unless otherwise noted parking requirements are calculated based on gross floor area." In 1982 when the Bay Corporate Plaza development (including the authorized uses) and the site and building construction plans were approved by the City, the parking requirements for the Complex were 256 parking spaces based on 1 parking space per 250 net square feet. The parking requirements for the Building were 67.73 parking spaces which the City at that time rounded up to 68 parking spaces, 32 parking spaces (31.90 parking space) for the first floor and 36 parking spaces (35.83 parking spaces) for the second floor. March 24, 2014 Page 28 of 90 At that time also, the parking actually provided for the Complex to serve Parcels 1, 2, 3 and 4 was 263 parking spaces. The 263 parking spaces consisted of 195 standard parking spaces, 64 compact parking spaces and 4 handicapped parking spaces. There was a surplus of parking spaces of seven (7) spaces. In order to address the implementation of the American Disabilities Act ( "ADA "), handicapped parking has been added to the property over the years since the Complex was constructed and the parking spaces have been reconfigured within the common parking area. This has resulted in a current reconfigured parking facility consisting of 255 parking spaces to serve the Complex which consists of 241 standard parking spaces, six (6) reserved parking spaces, and eight (8) handicapped parking spaces. The current parking spaces are 8 spaces less than the provided parking established in 1982, and 1 space less than the required parking per the City's parking requirement of 1 parking space per 250 net square feet. As has been noted, the Bay Corporate Plaza complex is subject to private Covenants, Conditions and Restrictions ( "CC & R's) that apply to the four (4) parcels that make up the complex. Several provisions of the CC & R's are applicable to the issues relating to parking and use of the buildings. Section 12.1 of the CC & R's states: "Section 12.1 Members' Right of Enjoyment. Every Member shall have a "nonexclusive easement" for use and enjoyment in and to the Community Facilities and such right shall be appurtenant to and shall pass with the interest required to be an Owner to every Lot, subject to all of the easements, covenants, conditions, restriction and other provisions contained in this Declaration, including, without limitation, the following provisions:..." Section 1.10 of the CC & R's defines "Community Facilities" as follows: "Section 1.10 "Community Facilities shall mean all real property, and the improvements thereon, from time to time owned or leased by or subject to easements in favor of the Association or for the common use and enjoyment of the Members. Upon the date of the first conveyance of a Lot to an Owner, the Community Facilities shall be conveyed by Declarant to the Association free of all liens and encumbrances except current real property taxes (which taxes shall be prorated as of the date of conveyance), title exceptions of record and the covenants, conditions, reservations and restrictions contained in this Declaration and the instrument which conveys the Community Facilities to the Association." Section 1.14 of the CC & R's defines "Improvements" as follows: "Section 1.14 "Improvements" shall mean and include structures and construction of any kind, whether above or below the land surface, including but not limited to, Buildings, outbuildings, walls, water lines, sewers, electrical and gas distribution facilities, parking facilities, walkways, fences, hedges, mass plantings, poles, signs and any other structures or landscaping of any type or kind." It is clear by the content of the CC & R's that the parking spaces on the property are to be used in "common" as part of the Community Facilities that are described for the "nonexclusive" use and enjoyment of the owners of the Buildings in the Bay Corporate Plaza complex. The City has established parking requirements for the assembly /meeting facilities. There are several requirements in the Municipal Code which that City has discretion on using. These are described as follows: 1. 1 parking space per 250 net square feet (general office use) 2. 3 seat per 1 parking space (assembly /meeting facility use) 3. 1 parking space per 35 net square feet of assembly /meeting facilities (assembly /meeting facility use) March 24, 2014 Page 29 of 90 As previously noted the total area of the second floor consists of 8,958 net square feet. At 1 parking space per 250 net square feet, the required parking spaces would be 35.83 spaces, or rounded to 36 spaces. Further, the total area of the first and second floor consists of 16,932 net square feet. At 1 parking space per 250 net square feet, the required parking spaces would be 67.73 spaces, or rounded to 68 spaces. At 3 seats per parking space, the 36 parking spaces would allow for 108 seats in the assembly /meeting facilities area (proposed weekday maximum seating). At 3 seats per parking space, the 68 parking spaces would allow for 204 seats in the assembly /meeting facilities area weekday evening and weekend maximum seating. It is noted that the use of the assembly /meeting facilities at the 204 seat level would take place when the first floor is not occupied for general office use. Also as noted the assembly /meeting facilities space consists of 3,116 net square feet (1,100 net square feet for the multi - purpose room and 2,016 net square feet for the assembly /meeting facility portion that can have occupied seating. At 1 parking space per 35 net square feet of assembly /meeting facilities, the required parking spaces would be 89.02 spaces, or rounded to 90 spaces. It is noted that if 90 spaces were available at 3 seats per parking space, the seating capacity would be allowed to be 270 seats. However, this is limited and restricted by the Conditions of Approval and the Parking Management Plan to 207 seats maximum (weekday evening and weekend maximum seating) In order to take the most conservative position consistent with the various parking provisions of the Municipal Code, the parking required when the Complex was approved in 1982, and the current parking available, the City has required the following restrictive Conditions of Approval: 47. The assembly use shall comply with the approved Parking Management Plan, which maybe modified by the Community Development Director or Planning Commission. 48 Daytime assembly use, Monday through Friday, shall be limited to 108 seats, maximum, and shall maintain a minimum of 36 parking spaces, except on the holidays of Rosh Hashanah and Yom Kippur. On such days, the maximum may be increased to 207 seats if the applicant obtains a written agreement securing on -site or conveniently located off -site parking for the additional parking demand commensurate with the increased occupancy at a rate of 1 space per 3 seats. In addition, parking secured shall not create any undue traffic hazards or negatively impact the surrounding area. #9 Evening (after 5:30 p.m.) and weekend assembly use shall be limited to 207 people, maximum. Further, in order to insure that the uses and activities remain consistent with the CUP application to prevent parking or trip generation impacts that have not been considered in the review of the CUP, the City has required the following restrictive Conditions of Approval.- #10 Area used for assembly purposes shall be limited to the multipurpose room and social hall. 411 Educational or day care uses that may classify the space as an E occupancy per the California Building Code shall not be permitted 419 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 beyond what is anticipated with this Conditional Use Permit, 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. This is further reinforced in the Parking Management Plan which states the following restrictive conditions: March 24, 2014 Page 30 of 90 • Areas designated for assembly purposes shall be limited to the multipurpose room and social hall, totaling 3,116 net square feet. Any increase in floor area used for assembly purposes shall not be permitted without first amending this Parking Management Plan and Conditional Use Permit No. UP2013 -026, if deemed necessary by the Community Development Director. • During daytime hours, Monday through Friday, the proposed religious facility shall be limited to a maximum of 108 seats within the multipurpose room and social hall. Any increase in seating shall require an amendment to this Parking Management Plan and Conditional Use Permit No. UP2013 -026, if deemed necessary by the Community Development Director. • During evenings, Monday through Friday, and on weekends, the proposed religious facility shall be limited to a maximum of 207 seats within the multipurpose room and social hall. Any increase in seating shall require an amendment to this Parking Management Plan and Conditional Use Permit No. UP2013- 026, if deemed necessary by the Community Development Director. • During evening hours (after 5:30 p.m.), Monday through Friday, and on weekends, a minimum of 90 parking spaces shall be maintained on -site for the proposed assembly, use. It appears that the City has consistently implemented the parking requirements of the Municipal Code and have limited the occupancy of the assembly /meeting facilities from a conservative perspective to insure that the demand on parking is not detrimental to the "common" area parking associate with the current parking facilities and is congruent with the demands for parking of the building occupancies of the Complex. The following table shows the possible assembly /meeting facility seating that would be allowed based on the calculated parking and rounding up or rounding down of the fractional parking available. March 24, 2014 Page 31 of 90 The CUP Conditions of Approval and the Parking Management Plan sets forth limitations and restrictions on the maximum occupancy of the second floor based on the availability of parking and the demand for parking by the other building based on the parking requirements of the Municipal Code: As such, the maximum seating in the assembly /meeting facilities area would be 108 during the weekday and 207 during the weekday evenings and weekend. There is a parallel relationship between the parking available and the maximum seat restrictions. Although the parking is common to all of the tenants in the buildings on Parcel 1, 2, 3, and 4, the required parking for each building as "fair share" according to the City parking standards based on the 1982 plans as provided is shown as follows against the current parking provided: As noted in the City Council March 25, 2014 Agenda Report (Agenda Item No. 12), the following was presented: "The City's parking requirements are determined by type of use pursuant to Table 3 -10 of Zoning Code Section 20.40.040 (Off - Street Parking Spaces Required), and are not based on level of occupancy. Office uses within the complex are required to provide I parking space for every 250'net square feet of net floor area which equates to 256 parking spaces (64,026 net sq. ft. / 250). The required number of parking spaces may be administratively reduced by the Community Development Director when parking spaces are lost due to ADA (Americans with Disabilities Act) requirements associated with tenant improvements. The office complex has undergone tenant improvements requiring the conversion of parking spaces to loading zones resulting in a minimal loss of parking for ADA purposes. Therefore, the Community Development Director has determined that the existing 255 space parking lot meets the ratio required for the office uses located on this site. " This addresses the 1.10 deficit that has been identified in the table above. Based on the prior use of the Building, the first floor required parking was 32 parking spaces and the second floor parking requirements was 36 parking spaces. The total Building had a requirement of 68 parking spaces of which 68 parking spaces are provide under the current parking configuration. The proposed CUP requires parking under different use configurations, as follows: March 24, 2014 Page 32 of 90 Although the same square footage for the prior general office use is being used for the purposes of the CUP, the utilization and allocation of the square footage of the floor area space is different and the times frames for the demand for parking is also different The conceptual floor plan for the second story square footage is compared to the prior general office use as follows: March 24, 2014 Page 33 of 90 2240 wrsi . _ ate■ �, ��� �e e March 24, 2014 Page 34 of 90 Kitchen Printay 186.69 Kitchen Prinvay 380 Kitchen Secondary/Storage 175.34 Total 362.03 Total 380 17.97 ElectraaVrele hone Room 49.00 ElectricaUrele hone Room 45 Co uter Server Room 140.19 Janitorial/Utility Room 40.00 JatiftoriaMilily Room 40 Story a Room 1 216.54 Storage Room 1 285 Slora eltoom2 79.01 _ Stour eltoom2, 135 OfflceMachine Utility Area 64.20 Total 588.94 Total 505 83.94 Men's Restrooms 123.57 Men's RKCstroom 150 Women's Restrooms 160.64 Woncn's Res[roorrs 280 Total 284.21 Total 430 145.79 Conference Room; Conference Rooms 1 295.41 2 319.13 Social Hall (Dedicated Mawrrmm Seating) '2,016 Social Hall (Dedicated Relig ious Accessories 934 ..._. Libray 560 Chddn;n's Room 650 Multi-Purpose Room 1 406 Multi-Purposelto=2 2 347 Multi-Purpose Room 3 347 Total 614.54 Total 5,260 4,645.46 Lobby/Landing . ....... Lobby/Land 1 197.98 42 239.98 a 333.09 200 533.09 a 200 Landing 446.50 Landing 340 Total 977.57 Total 540 437.5 Halls Halls 1 278.51 1 99 2 243.65 2 108 ........... 3 274.20 3 126 4 232.13 4 648 Total 1,028.49 Total 1 981 47.49 Miscellaneous/Walls/Partitions Total 101.96 Miscellaneous /Walls /Partitions Total 277 175.04 Land Total 8,958.00 53 (land Total 1 Total Second Floor 8,95 &00 250 I i 1 35.83 36 W Total Second Floor 8,958 Total Second Floorless Landing 8,511.501 2501 1 1 1 34.051 341 _.Total Second Floor less Landing 8,618 March 24, 2014 Page 35 of 90 Based on this square footages and the utilization of the space as set forth in the RK Engineering Study, the need for parking varies based on the weekday usage, the weekday evening usage, and the weekend usage requiring the use of the different parking requirements of the City applicable to the utilization of the space. These are the different scenarios that might have to be parked under the worst case scenarios: 1. Office General Use During the Day — This would require parking spaces to serve the 8,958 net square feet of area per the Municipal Code, or 36 spaces, while the available parking would be 36 spaces, equal to the prior General Office use demand. 2. Assembly Use During The Day — Under the worst case scenario, this would require maximum parking spaces under the worst case scenario for 108 seats. There would be no other use of the second floor that required parking. The required parking would be 36 spaces while the available parking would be 36 spaces, equal to the prior General Office use demand. 3. Assembly Use During the Weekday Evening - Under the worst case scenario, this would require maximum parking spaces under the worst case scenario for 207 seats. There would be no other use of the second floor that required parking. There would also be no use of the first floor that required parking. The required parking for the activities on the second floor would be 68 spaces, while the available parking would be 68 spaces, equal to the prior General Office use demand for the entire building 4. Assembly Use During the Weekend - Under the worst case scenario, this would require maximum parking spaces under the worst case scenario for 207 seats. There would be no other use of the second floor that required parking. There would also be no use of the first floor that required parking. The required parking for the activities on the second floor would be 68 spaces, while the available parking would be 68 spaces, equal to the prior General Office use demand for the entire building Different configurations of the utilization of the second floor may occur. However, in all possible cases the CUP restrictions and conditions of approval would place a limit on the occupancy to 108 during the weekday and 207 during the weekday evening and weekend. Therefore the demand f6r parking spaces would be equal to or less than the worst case scenarios as described above. It is noted that because the first floor will generally not be occupied during the use of the second floor for assembly purposes, the available parking allocation for the first floor can be added to the available parking for the second floor to provide the required parking for the 208 seats that are potentially occupied under the worst case scenario. Although the Building share of the 255 parking spaces is 67.44 parking spaces, the City permits the fractional use of parking spaces to determine occupancy based on the 1982 approved plans for the Complex. In order to maintain consistency in how the City has calculated the parking, the Newport Jewish Center believes that the weekday evening and weekend parking maximum as set forth in the Conditions of approval may be reduced from 207 seats to 204 seats. This is based on 68 parking spaces (first floor parking of 32 spaces and the second floor parking of 36 spaces) times 3 seats per space for a total of 204 seats. However the seating may be accepted at 207 seats based on the 90 parking space requirements as set forth in the Parking Management Plan. Based on that parking calculation, there would be an excess of parking spaces of 63 parking spaces (90 parking spaces at 3seats per parking space = 270 seats versus 69 parking spaces at 3 seats per parking space = 207 seats). Observed Parking and Trip Generation Study One of the allegations set forth in the appeal request is that "The traffic and parking issues have not been properly considered ". The allegation is not supported by data, and quantitative and/or qualitative analysis contained in the appeal application. The supporting materials do not provide the necessary substantial evidence to support the allegation. March 24, 2014 Page 36 of 90 Although not required by the City; the CEQA or the CEQA Guidelines; the City's Guidelines for Planning Applications, the Conditional and Minor Use Permit Information Form and the Planning Permit Applications Form; the City's Council Policy Number K -3 which addresses Implementation Procedures For The California Environmental Quality Act; and the City's General Plan and Municipal Code, Newport Jewish Center commissioned the preparation of the RK Engineering Study to validate that the proposed use under the CUP would meet the test of the Class 1 categorical exemption of a project involving negligible or no expansion of an existing use as its relates to parking and trip generation. Although there are no physical modifications to the Building's exterior that would have an effect on the environment, the parking and trip generation patterns of the use and activities of the Building under the CUP might change the prior patterns of the parking and trips associated with the Building and the Bay Corporate Plaza complex such that a RK Engineering Study might be warranted, although not required. A professional and technical independent Study was prepared by RK Engineers dated March 14, 2014 and presented to the City of Newport Beach to be included in the administrative record of the CUP's consideration by the City Council. The RK Engineering Study was conducted in accordance with the City of Newport Bach procedures and requirements, standard engineering principals, procedures and requirements, and the guidelines of the Institute of Transpiration Engineers (1117'). In addition, the study procedures and the draft RK Engineering Study were reviewed by the City's Engineering Department prior to it being finalized to insure that the RK Engineering Study was conducted in a manner that was acceptable to the City's standards, procedures, and requirements. The RK Engineering Study is incorporated herein by reference. Observed Parking and Trip Generation Study Conclusions The RK Engineering Study speaks for itself and sets forth the following conclusions: 1. Bay Corporate Plaza is projected to have a surplus of approximately 41 parking spaces during the peak observed hours of the weekday. 2. The proposed Saturday and Sunday activities are projected to have a surplus of 132 and 139 parking spaces during the peak operating hours. 3. The peak hours of operation by the Newport Jewish Center are not in conflict with other existing general office tenants at Bay Corporate Plaza. Therefore, the proposed use will not create a parking deficiency on the site. 4. The proposed development will generate fewer trips than the previous land use (General Office) during the weekday AM and PM peak hours. 5. Due to the trip generation analysis, it can be concluded that the trips generated by the Newport Jewish Center should not negatively affect traffic during the weekday AM and PM peak hours. On a cumulative basis and considering the trip generation of the entire Bay Corporate Plaza complex, there is substantial evidence to show that the daily trips on Saturday and Sunday with the proposed CUP use and activities are less than the weekday daily trips with the proposed CUP use and activities. Further that the Saturday and Sunday daily trips without the proposed CUP use and activities are less than the weekday daily trips without the proposed CUP use and activities. Finally, the weekday daily trips with the proposed CUP use and activities are less than the weekday daily trips without the proposed CUP use and activities. Therefore, it appears that it can be concluded that the impact of the proposed CUP use and activities in conjunction with the trips of the other buildings in the Bay Corporate Plaza complex will have less of a consequence on the traffic (trip generation) associated with University Drive and the intersection of University Drive and Irvine Avenue, then if the Bay March 24, 2014 Page 37 of 90 Corporate Plaza was entirely used for general office uses. It is noted that the standard practice of the City is to evaluate trip generation and traffic impacts based on weekday observations and calculations only. March 24, 2014 Page 38 of 90 Trip Generation Bay Corporate Plaza' Bay Corporate Plaza Trip Generation WITH Proposed Project Address Tenant Land Use Sizes Weekday AM Peak Hour (7:00 AM - Snap AM) Weekday PM Peak Hour (4:00 PM - 6:00 PM) Weekday Daily Trips Saturday Daily Trips Sunday Dally Trips 2220 University Drive Mobilitie LLC General Office Building 11,343 SF 18 17 125 28 12 2240 University Drive First Floor General Office Building 8,695 SF 14 13 96 21 9 2240 University Drive Second Floor Newport Jewish Center (Church) 9.190 5F 5 5 84 95 337 2260 University Drive Vacant' General Office Building 24,701 SF 39 37 272 61 - 26 2280 University Drive I Anza Management General Office Building 14,022 SF 1 22 1 21 1 155 1 34 15 Total 1 98 1 93 1 732 1 239 399 Bay Corporate Plaza Trip Generation WITHOUT Proposed Project Address Tenant land Use Sizes Weekday AM Peak Hour (7:00 AM - 9:00 AM) Weekday PM Peak Hour (4:00 PM - 6:00 PM) Weekday Daily Trips Saturday Daily Trips Sunday Daily Trips 2220 University Drive Mobilitie LLC General Office Building 11,343 SF 18 17 125 28 12 2240 University Drive First Floor General Office Building 8,695 SF 14 13 96 21 9 2240 University Drive Second Floor Newport Jewish Center (General Office) 9,190 SF 15 13 101 23 10 2260 University Drive Vacant' General Office Building 24,701 5F 39 37 272 61 26 2280 University OfivY I Ann Management 1 General Office Building 1 14,022 SF 1 22 21 1 155 34 15 Total 1 108 101 1 749 167 72 Bay Corporate Plaza Trip Generation Comparison Weekday AM Peak Hour 7:00 AM - 9:00 AM) Weekday PM Peak Hour (4:00 PM - 6:00 PM) Weekday Daily Trips Saturday Daily Trim Sunday Daily Trips With Proposed Project (Newport Jewish Center) 98 93 732 239 399 Without Proposed Project (General Office Use) 108 101 749 167 72 Difference -10 -8 -17 72 327 'Trip generation based on the project description and ITE Trip Generation Manual The previous tenant of the building was general office use, and thus the trip generation for the previous use is shown. March 24, 2014 Page 39 of 90 A footnote that may want to be taken into consideration has to do with the weekend Saturday and Sunday daily trips. It is noted in the RK Engineering Study that the use of ITE synagogue trip generation rates were not used in the RK Engineering Study due to the small sample of size and limited data. Instead, in accordance with the City's standard practices, the ITE church (ITE Code 560) trip generation rates were used. However, because weekend church activities are primarily on Sundays and synagogue activities are primarily on Saturdays, the distribution of trip generation rates may be actually reversed for the two days. This would affect Table 11 of the RK Engineering Study and the results of Table 12 of the RK Engineering Study. It would also affect the table shown above. However, the modifications would not have a significant effect on the conclusions as show in the following table. The CUP contains conditions of approvals, including the provisions of a Parking Management Plan. Condition of Approval #8 states: "8. Daytime assembly use, Monday through Friday, shall be limited to 108 seats, maximum, and shall maintain a minimum of 36 parking spaces, except on the holidays of Rosh Hashanah and Yom Kippur. On such days, the maximum may be increased to 207 seats if the applicant obtains a written agreement securine on -site or conveniently located off -site parking for the additional parking'demand commensurate with the increased occupancy at a rate of 1 space per 3 seats. In addition, parking secured shall not create any undue traffic hazards or negatively impact the surrounding area". (Emphasis added) Consistent with the intent of the CUP Conditions of Approval and the Parking Management Plan, the Newport Jewish Center has negotiated and did execute on March 20, 2014 a Parking Agreement with YMCA of Orange County Newport-Mesa Family YMCA (2300 University Avenue, Newport Beach), for the provision of overflow parking as may be necessary in the future. As noted, the YMCA is located immediately adjacent to the Building and there is pedestrian access between the YMCA parking facility and the Building so as to preclude the necessity for visitors to the Newport Jewish Center to have to walk around the YMCA parking facility to the front of their property and walk through the Bay Corporate Plaza parking facility. In addition, a similar parking agreement with the Newport Beach Golf Course, LLC (3 100 Irvine Avenue, Newport Beach) for additional overflow parking has been negotiated and that Agreement was executed on March 14, 2014. The Agreement provides for shuttle and valet service as may be needed. March 24, 2014 Page 40 of 90 In addition, during the time that parking is required for holidays or events where the maximum occupancy of the social hall /assembly occurs, the Newport Jewish Center has provided that a designated representatives and temporary signage located on -site shall be provided in the parking area to direct and designate where parking is available in order to minimize any inconvenience to the office tenants of the other buildings. The agreements with the Newport Beach Golf Course and the YMCA are attached hereto and incorporated herein by reference. In addition, a map and photo of the two facilities are attached hereto and incorporated herein by reference. Although the RK Engineering Study could not verify (based on the parking survey counts) the Mobilitie assertion that they have a current demand for approximately 100 parking spaces servicing approximately 100 employees, RK Engineering did account for and add into the worst case scenario parking demand analysis the 93 parking spaces that would be required by the Municipal Code for the occupancy of the vacant building on Parcel 2 and the 42 parking spaces required by the Municipal Code for the occupancy of the Mobilitie building, including weekday demand, weekday evening demand, and weekend demand. Additional Traffic (Trip Generation) Considerations It is noted, that in 2006 the City of Newport Beach conducted a traffic analysis of the intersection of University Drive and Irvine Avenue (NS/EW) and concluded that the intersection operated at the following Level of Service ( "LOS "): Existing Lanes (AM) LOS F Existing Lanes (PM LOS F General Plan Lanes (AM) LOS C General Plan Lanes (PM) LOS C Level of Service is a measurement used in the management of street infrastructure to measure its "fit for purpose ". LOS is also used to analyze streets and highways by categorizing traffic flow with corresponding safe driving conditions. The City of Newport Beach General Plan defines the various Levels of service as follows: • LOS "A" - Minimal delay (less than 10 seconds on average) is experienced. • LOS `B" - Vehicles at signalized intersections experience between 10 and 20 seconds of delay on average, while vehicles on the side street STOP controlled approaches at unsignalized intersections experience between 10 and 15 seconds of average delay.] • LOS "C" - Delays at signalized intersections range from 20 to 35 seconds and from 15 to 25 seconds for side street / STOP controlled traffic at unsignalized intersections. • LOS "D" - Delays at signalized intersections range from 35 to 55 seconds and from 25 to 35 seconds for side street / STOP controlled approaches at unsignalized intersections. • LOS "E" - Delays at signalized intersections range from 55 to 80 seconds on average, while delays for side street / STOP controlled traffic at unsignalized intersections range from 35 to 50 seconds. • LOS "F" - All vehicles at signalized intersections can be expected to wait through more than a single signal cycle with average delays in excess of 80 seconds, while delays to side street / STOP controlled approaches at unsignalized intersections will exceed 50 seconds on average. March 24, 2014 Page 41 of 90 The General Plan of the City of Newport Beach states: "The City of Newport Beach has traditionally set LOS "D" as its goal for intersection performance, whenever possible." The City of Newport Beach General Plan sets forth the following goal: "CE 2.1 A roadway system that provides for the efficient movement of goods and people in the City of Newport Beach, while maintaining the community's character and its residents' quality of life." Further, the City of Newport Beach General Plan sets forth the following policy: "CE 2.1.1 Level of Service Standards Plan the arterial roadway system to accommodate projected traffic at the following level of service standards: A. Level of Service (LOS) "D" throughout the City, unless otherwise noted..." The City of Newport Beach is currently considering amendments to the City's General Plan Land Use Element. In conjunction with that amendment process, the City is conducting an updated traffic analysis of the intersections throughout the City including the intersection of University Drive and Irvine Avenue. The base data and analysis is not currently available for public review. However, preliminary conclusions were presented to the City of Newport Beach Advisory Committee on February 4, 2014 with regards to certain intersection deficiencies based on several scenarios. That presentation showed that the following Levels of Service: General Plan Base Line Existing Lanes (AM) LOS C Existing Lanes (PM) LOS E General Plan Lanes (AM) LOS A General Plan Lanes (PM) LOS C General Plan Project Existing Lanes (AM) LOS C Existing Lanes (PM) LOS E General Plan Lanes (AM) LOS A General Plan Lanes (PM) LOS C The February 2, 2014 preliminary conclusions show that the intersection traffic rating of University Drive and Irvine Avenue has improved since 2006 based on the scenarios presented. Therefore, as long as the project traffic generation of the Bay Corporate Plaza complex with the proposed project is equal to or less than the traffic generation rate of the complex without the proposed project and assuming the maximum occupancy of general office use of the Complex, the traffic impacts on University Drive and the intersection of University Drive and Irvine Avenue would not be considered adverse on that street segment or that intersection. Is noted that the City does not maintain traffic counts or intersection LOS ratings for weekend street segments and intersections based on the fact that the weekend traffic counts and LOS conclusions are typically less than weekday traffic counts and LOS conclusions due to the fact that the street segments and intersections are not March 24, 2014 Page 42 of 90 impacted by the high generation consistent rates associated with home -work traffic generations typical of weekday traffic generation. In addition weekend counts are typically consistent as is weekday counts. "GP Lanes" this means lanes recommended for widening (some of which have been widened and some of which have not, but for purposes of the study assumed to be all widened per the voter approved 2006 General Plan. "General Plan Baseline" means the baseline that exists today. "General Plan Project" means the proposed General Plan amendments analyzed in the 2014 EIR and includes all of the variously requested land use amendments, some of which may be withdrawn prior to approval of this Land Use Element Amendment. It appears that even with the uses and activities provided for in the CUP application, the Level of Service of the intersection of University Drive and Irvine Avenue will comply with Policy CE 2. 1.1 of the General Plan based on the preliminary conclusions that were presented to the City of Newport Beach Advisory Committee on February 4, 2014. Indirect Positive Impact of the Proposed CUP Use The proposed CUP use has an indirect positive effect on the City's overall traffic (trip generation) conditions based on the fact that the Newport Jewish Center was previously located at 2865 East Pacific Coast Highway, Corona Del Mar and conducted similar activities as is proposed for the 2240 University Drive Building. These prior activities had similar traffic (trip generation) generation and parking demands on Pacific Coast Highway and the surrounding neighborhood streets. The relocation of these uses to the Bay Corporate Plaza has had a beneficial impact on Pacific Coast Highway and the surrounding neighborhood street by eliminating the trip generation and parking demands in that area. Although the beneficial effects have not been calculated, the mere fact that the use has been eliminated from the Pacific Coast Highway location would suggest that there has been a positive effect realized as a result of the removal of the trips and the demand for parking. Traffic Phasing Ordinance The City has adopted a Traffic Phasing Ordinance ( "TPO ") that is contained in. Chapter 15.40 of the Municipal Code. Section 15.40.020 of the Municipal Codes states: "15.40.020 Objectives. The City Council has adopted this chapter to achieve the following objectives A. To provide a uniform method of analyzing and evaluating the traffic impacts of projects that generate a substantial number of average daily trips and/or trips during the morning or evening peak hour period; B. To identify the specific and near -term impacts of project traffic as well as circulation system improvements that will accommodate project traffic and ensure that development is phased with identified circulation system improvements; C. To ensure that project proponents, as conditions of approval pursuant to this chapter, make or fund circulation system improvements that mitigate the specific impacts of project traffic on primary intersections at or near the time the project is ready for occupancy; and D. To provide a mechanism for ensuring that a project proponent's cost of complying with traffic related conditions of project approval is roughly proportional to project impacts." Section 15.40.040 of the Municipal Code defines "project" for purpose of the TPO as follows: "Project" means "project" as defined in the California Environmental Quality Act (Public Resources Code § 21000 et seq.), the CEQA Guidelines, and relevant decisional law without regard to whether any March 24, 2014 Page 43 of 90 environmental document is required for the project. The term "project' shall also mean any application for a building or grading permit for development that would generate more than three hundred (300) average daily trips.,, Although the Newport Jewish Center CUP is a "project' as defined by the CEQA Guidelines, it is not an application for a building or grading permit for development. The TPO provides that specific traffic studies in accordance with specific requirements shall be prepared, unless exempted from the TPO. Exempted projects are described in Section 15.40.030 (C) as follows: "C. Exemptions. The following projects are exempt from the provisions of this chapter: 1. Any project that generates no more than three hundred (300) average daily trips. This exception shall not apply to individual projects on the same parcel or parcels of property, such as changes in land use or increases in floor area, that in any twenty -four (24) month period cumulatively generate more than three hundred (300) average daily trips; 2. Any project that, during any morning or evening peak hour period, does not increase trips by one percent or more on any leg of any primary intersection; 3. Any project that meets all of the following criteria: a. The project would be constructed on property within the sphere of influence of the City of Newport Beach and that is within the jurisdiction of the County of Orange or an adjacent city as of the effective date of this ordinance; and b. The project is subject to a vesting tentative or parcel map, development agreement, pre - annexation agreement and/or other legal document that vests the right of the property owner to construct the project in the County or adjacent city; and c. The property owner enters into a development agreement, pre - annexation agreement, or similar agreement with the City of Newport Beach: (1) That establishes the average daily trips generated by the project ( "baseline„), (2) That requires the property owner to comply with this chapter prior to the issuance of any permit for development that would, in any twenty -four (24) month period, generate more than three hundred (300) average daily trips above the baseline for the project, and (3) That makes this chapter applicable to the project immediately upon annexation; d. The City Council determines, prior to annexation that the environmental document prepared for the project fully complies with CEQA and the CEQA Guidelines The RK Engineering Study shows that the permitted uses of the Building that would be allowed under the CUP would generate no more than the following average daily trips: Weekday Average Daily Trips 84 Weekend Average Daily Trips (Saturday) 95 Weekend Average Daily Trips (Sunday) 337 Based on these conclusions, the average [weekly] daily trips would be 121.71 trips ((5 days x 84+ Saturday (95) + Sunday (337))/7 days = 121.71 average daily trips). March 24, 2014 Page 44 of 90 Based on these conclusions, the average [weekday 5 -day] daily trips would be 84 trips ((5 days x 84)/5 days = 84 average daily trips). Based on these conclusions, the average [weekend 2 -day] daily trips would be 216 trips ((Saturday trips plus Sunday trips /2 days = 216 average daily trips). In addition it is noted that the standard City engineering practices is to calculate average daily trips based on total trips Monday through Friday divide by five (5) days. Based on the City's standard practice, the five (5) day weekly average daily trips are 84 trips. All three (3) evaluation techniques of determining average daily trips have results that are less than 300 average daily trips. The CUP is therefore exempt from the provisions of the Traffic Phasing Ordinance. CUP Findings One of the allegations set forth in the appeal request is that "The findings required for the CUP have not been satisfied ". This allegation is not supported by data, and quantitative and/or qualitative analysis contained in the appeal application. In addition, the appeal documentation does not provide necessary substantial evidence to support the allegation. Section 20.52.020 (F) provides the "review authority may approve or conditionally approve a conditional use permit or minor use permit only after first finding all of the following: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use." The following provides substantial evidence that supports the findings that are required. Finding #1- The use is consistent with the General Plan and any applicable specific plan. The City of Newport Beach current General Plan was adopted on July 25, 2006 and approved on November 7, 2006. The General Plan states: "The Newport Beach General Plan is a document adopted by the City Council that serves several purposes: Provides a vision and framework for Newport Beach's long -range physical and economic development and resource conservation that reflects the aspirations of the community March 24, 2014 Page 45 of 90 • Provides strategies and specific implementing actions that will allow this vision to be accomplished • Establishes a basis for judging whether specific development proposals and public projects are in harmony with Plan policies and standards • Allows City departments, other public agencies, and private developers to design projects that will enhance the character of the community, preserve and enhance critical environmental and historical resources, and minimize hazards • Provide the basis for establishing and setting priorities for detailed plans and implementing programs, such as the Zoning Code, Capital Improvement Plans, facilities plans, and specific plans" The General Plan provides vision, guidance and direction for the growth and development of the City through the establishment and implementation of goals and policies. It is these goals and polices that are used as the measurement for consistency in the decision - making processes of the City. There are no specific plans that are applicable to the CUP application or the Bay Corporate Plaza Complex. The General Plan designates the property as General Commercial Office (CO -G). This is identified on the General Plan Map and on Figure LU10 Statistical Areas Gl, J145, Kl and K2. Table LUl sets forth the land use categories of the General Plan. The General Commercial Office (CO -G) land use designation is described as follows: "The CO -G designation is intended to provide for administrative, professional, and medical offices with limited accessory retail and service uses. Hotels, motels, and convalescent hospitals are not permitted." Based on the consistent zoning designations and the content of the Municipal Code with regards to allowed permitted uses in the CO -G land use designation and the Office General (OG) zone, it appears that the proposed CUP is in consistent with the land use designations of the General Plan. The State of California General Plan Guidelines (2003) ( "Guidelines) as promulgated by the California Governor's Office on Planning and Research, sets forth direction with regard to the preparation, adoption and implementation of general plans. The Guidelines state, in part: "The general plan is largely implemented through zoning and subdivision decisions. In 1971, the Legislature made consistency with the general plan a determinative factor for subdivision approvals. Since then, lawmakers have continued to add consistency requirements to California's planning and land use laws. Other statutes, while not mandating consistency, require findings or a report on whether various local actions conform to the general plan... The California Attorney General has opined that "the term `consistent with' is used interchangeably with `conformity with "' (58 Ops.Cal.Atty.Gen. 21, 25 (1975)). A general rule for consistency determinations can be stated as follows: "An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment." The city or county is responsible for determining whether an activity is consistent with the general plan. A city council's finding of a project's consistency with the plan would be reversed by a court if, based on the evidence before the council, a reasonable person could not have reached the same conclusion (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223). In Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Board of Supervisors (1998) 62 Cal.App.4th 1332, the court held that "[The] nature of the policy and the nature of the inconsistency are critical factors to consider:" A project is clearly inconsistent when it conflicts with one March 24, 2014 Page 46 of 90 or more specific, fundamental, and mandatory policies of the general plan (Families Unafraid, supra). However, any given project need not be in perfect conformity with each and every policy of the general plan if those policies are not relevant or leave the city or county room for interpretation (Sequoayah Hills Homeowners Association v. City of Oakland, (1998) 23 Cal.App 4th 704 (1993))." The Guidelines further defines "consistency" as follows: "Consistency; Consistent with: Free from significant variation or contradiction. The various diagrams, text, goals, policies, and programs in the general plan must be consistent with each other, not contradictory or preferential. The term "consistent with" is used interchangeably with "conformity with." The courts have held that the phrase "consistent with" means "agreement with; harmonious with. " The term "conformity" means in harmony therewith or agreeable to (Sec 58 Ops.Cal.Atty.Gen. 21, 25 [1975]). California law also requires that a general plan be internally consistent and also requires consistency between a general plan and implementation measures such as the zoning ordinance. As a general rule, an action program or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment." Prior content herein has provided substantial evidence to show that the Newport Jewish Center uses and activities are consistent with the General Plan land use designation and the zoning designation for the property, and that the zoning designation is consistent with the General Plan land use designation. Further, substantial evidence herein shows that the Newport Jewish Center uses and activities are consistent with the CC & R's and that the CC & R's are consistent with the General Plan land use designation and the zoning designation. To further establish that the Newport Jewish Center CUP application is consistent with the General Plan, a number of goals and policies have been identified in the Newport General Plan which may be directly or indirectly related to the uses and activities identified in the CUP application. The following goals and policies are set forth in the General Plan and may be considered in the approval of the CUP permitted use of the Building. Consistency has been established through the Comments offered. Goal LU 2 A living, active, and diverse environment that complements all lifestyles and enhances neighborhoods, without compromising the valued resources that make Newport Beach unique. It contains a diversity of uses that support the needs of residents, sustain and enhance the economy, provide job opportunities, serve visitors that enjoy the City's diverse recreational amenities, and protect its important environmental setting, resources, and quality of life. Comment: The Newport Jewish Center has been a part of the living, active, and diverse environment of the Community for more than 13 years, and has complemented the lifestyles and enhanced neighborhoods, without compromising the valued resources that make the City of Newport Beach unique. Its previous location was at 2865 East Pacific Coast Highway, Corona Del Mar. The Newport Jewish Center is part of the diversity of uses that support the needs of residents, provides some job opportunities, and serves visitors in the Community. It does not appear that the Center adversely affects the important environmental setting, resources, and quality of life of the Community. In particular, the Newport Jewish Center will not adversely affect the Upper Newport Bay or the Upper Newport Bay Nature Preserve based on the fact that the occupancy is to be located in an already constructed building that is part of a previously developed complex of buildings, and the uses and activities of the Newport Jewish Center will be conducted entirely within the building. March 24, 2014 Page 47 of 90 Policy LU 2.1 Resident- Serving Land Uses Accommodate uses that support the needs of Newport Beach's residents including housing, retail, services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community natural resources and open spaces. (Imp Comment: The Bay Corporate Plaza complex provides an appropriate place that spiritual activities can occur. The activities will be conducted within the Building and the parking and trip generation required for the use will be equal to or less than the general office use permitted for the Building. It appears to be in balance with the community natural resources and opens spaces associated with the Upper Newport Bay Nature Reserve and the surrounding community. Policy LU 2.2 Sustainable and Complete Community Emphasize the development of uses that enable Newport Beach to continue as a self - sustaining community and minimize the need for residents to travel outside of the community for retail, goods and services, and employment. (Imp 1.1, 24.1) Comment: The Newport Jewish Center was previously located at 2865 East Pacific Coast Highway, Third Floor, Corona Del Mar, California It appears that the Center required larger and more flexible space for their use and activities. For several years they searched and sought options that would 1) be within their financial parameters, 2) provide the facilities that would meet the needs of the Center, and 3) serve the needs of the local community of Newport Beach residents. Limited opportunities met the criteria that they sought, particularly the financial criteria. The Chabad organization network that the Newport Jewish Center is affiliated with designates community- oriented locations where such Centers may locate so that such Centers are distributed to meet the population needs of the local communities they serve. The Newport Jewish.Center that is located in the City of Newport Beach serves the residents of the Newport Beach community. To not find a location in the City of Newport Beach would require the Newport Jewish Center to discontinue providing services to the City of Newport Beach residents who use the services of the Center. The location of the Center in the Bay Corporate Plaza prevents Newport Beach residents from having to travel to other Centers outside the community, including such locations as the Tustin, Irvine, Seal Beach, Laguna Hills, Laguna Niguel, Laguna Beach, Irvine and Huntington Beach to name a few. Goal LU 5.2 Commercial centers and districts that are well- designed and planned, exhibit a high level of architectural and landscape quality, and are vital places for shopping and socialization. Comment: The uses and activities of the CUP and the Condition of Approval do not appear to change the high quality image of the Bay Corporate Plaza. The subject building's exterior will remain as it was originally constructed and no exterior improvements will be made to the structure. Signage will be provided in accordance with the City's sign regulations and the provisions of the CC & R's. The building will continue to be used in a manner that provides a quality working environment for the occupants of the March 24, 2014 Page 48 of 90 building and the surrounding buildings. The use and activities of the Newport Jewish Center by its own definition is a vital place in the community for socialization. Goal LU 5.4 Office and business districts that exhibit a high quality image, are attractive, and provide quality working environments for employees. Comment: The uses and activities of the CUP and the Condition of Approval do not appear to change the high quality image of the Bay Corporate Plaza. The subject building's exterior will remain as it was originally constructed and no exterior improvements will be made to the structure. Signage will be provided in accordance with the City's sign regulations and the provisions of the CC & R's. The building will continue to be used in a manner that provides a quality working environment for the occupants of the building and the surrounding buildings. Goal LU 5.6 Neighborhoods, districts, and corridors containing a diversity of uses and buildings that are mutually compatible and enhance the quality of the City's environment. Comment: The CUP and Conditions of Approval do not require any construction or reconstruction of the exterior of the subject building or the common area parking facilities. All of the tenant improvements that are required on the interior of the building and on the second floor are typical of office building tenant improvements. There are no special construction requirements with the exception of the installation of an elevator for ADA access and the installation of fire safety systems for the assembly use. The use of the buildings and the tenant improvements will not change the existing design of the property or the buildings, thereby maintaining the prior and ongoing compatibility of the buildings and property with the surrounding neighborhood. Policy LU 5.6.1 Compatible Development Require that buildings and properties be designed to ensure compatibility within and as interfaces between neighborhoods, districts, and corridors. (Imp 2.1) Comment: The CUP and Conditions of Approval do not require any construction or reconstruction of the exterior of the subject building or the common area parking facilities. All of the tenant improvements that are required on the interior of the building and on the second floor are typical of office building tenant improvements. There are no special construction requirements with the exception of the installation of an elevator for ADA access and the installation of fire safety systems for the assembly use. The use of the buildings and the tenant improvements will not change the existing design of the property or the buildings, thereby maintaining the prior and ongoing compatibility of the buildings and property with the surrounding neighborhood. The location of the CUP activities is compatible with the surrounding uses of the YMCA and the other office buildings within the Bay Corporate Plaza. The building's relationships with the residential homes to the north of the building will remain the same as if the building were to be used for general office use. There are no new streets associated with the CUP use and activities that would have an effect on the surrounding neighborhoods. March 24, 2014 Page 49 of 90 Goal LU 6.1 A diversity of governmental service, institutional, educational, cultural, social, religious, and medical facilities that are available for and enhance the quality of life for residents and are located and designed to complement Newport Beach's neighborhoods. Comment: It appears that the uses and activities sought through the CUP and Conditions of Approval have been requested in order to provide a religious facility that serves the community and which would enhance the quality of life for those of the Jewish faith. It is also offered to serve and enhance the quality of life for special needs children and young adults in the community and the surrounding communities through the Friendship Circle program sponsored by the Newport Jewish Center. The Friendship Circle program is a non - denominational service to the community and the surrounding communities at no cost to the families who benefit from the service. The uses and activities of the Newport Jewish Center by definition are focused on enhancing the quality of life for the residents of the City of Newport Beach. Policy LU 6.1.1 Adequate Community Supporting Uses Accommodate schools, government administrative and operational facilities, fire stations and police facilities, religious facilities, schools, cultural facilities, museums, interpretative centers, and hospitals to serve the needs of Newport Beach's residents and businesses. (Imp 1.1, 2.1) Comment Without requiring any major reconstruction and reconfiguration of the Bay Corporate Plaza or the subject building, the CUP and the Conditions of Approval appear to accommodate the religious use that has been sought by the applicant to serve the needs of the City of Newport Beach residents and businesses. In addition, the specific use of the building for the activities of Friendship Circle appear to provide a service to the Community and the surrounding community in terms of serving special needs children and young adults without placing any demands on the adjoining land uses, buildings and activities. All of the activities of the Newport Jewish Center are conducted inside the building, with the exception of the parking of vehicles by visitors. The Friendship Circle program is a non - denominational service to the Community and the surrounding communities at no cost to the families who benefit from the service. Policy LU 6.1.2 Siting of New Development Allow for the development of new public and institutional facilities within the City provided that the use and development facilities are compatible with adjoining land uses, environmentally suitable, and can be supported by transportation and utility infrastructure. (Imp 1.1, 14.2,22.1— 23.2) Comment: The religious use and activities of the building is in accordance with the limitations and restrictions of the CUP and the Conditions of Approval providing a service to the community. The CUP and the Conditions of Approval, including the limitations and restrictions on the occupancy of the building appear to be compatible with the adjoining land uses. There does not appear to be any environmental issues with regards to the use, particularly traffic (trip generation) and parking based on the RK Engineering Study. Additionally, University Drive and the intersection of University Drive and Irvine Avenue appear to be of an adequate configuration and capacity to support the proposed CUP uses based on the data, and quantitative and/or qualitative analysis set forth in the RK Engineering Study. The use and activities of March 24, 2014 Page 50 of 90 the building do not appear to require any additional transportation and utility infrastructure beyond the capacity of the current transportation and utility infrastructure. Goal CE 7.1 An adequate supply of convenient parking throughout the City. Comment: The CUP Conditions of Approval and the Parking Management Plan, together with the limitations and restrictions on the occupancy of the building maintains an adequate supply of convenient parking for the Bay Corporate Plaza without placing any additional burden on the supply of convenient parking. for the surrounding area and the City. In addition, the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on -street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. Policy CE 7.1.1 Required Parking Require that new development provide adequate, convenient parking for residents, guests, business patrons, and visitors. (Imp 16.10) Comment: This is not a new development requiring new construction. However, the focus of the CUP and the associated Conditions of Approval have been on ensuring that there is provided adequate and convenient parking for the occupants, business patrons and visitor of all of the buildings within the Bay Corporate Plaza complex. Based on the City's Municipal Code parking requirements, 256 parking spaces meets the demand of the buildings and is in compliance with the Municipal Code. Due to ADA reconfigurations, it appears that the current parking count is 255. The parking has been designed so that there are adequate and convenient standard and handicapped parking spaces for all of the buildings in the complex. The design, configuration and layout of the parking facilities appear to be in compliance with the City requirements. In addition, the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on -street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. Policy CE 7.1.7 Shared Parking Facilities Consider allowing shared parking in mixed use and pedestrian oriented areas throughout the City. (Imp 2.1, 8.1, 8.2, 16.10) Comment: The approval of the Bay Corporate Plaza complex in 1982 by the City established four (4) separate parcels or properties which were ultimately under separate ownership. There was provided through the CC & R's specific provisions that would maintain the common area parking by the nonexclusive use of the property owners and tenants of the buildings. This concept of share parking appears to have effectively operated over the years that the complex has been in existence. The CUP maintain this concept of common area parking and the restrictions and limitations of occupancy of the building has been driven by the "fair share" allocation of parking that is further driven by the square footage of the building on Parcel 3 and the weekday, weekday evening and weekend use and occupancy. In addition, March 24, 2014 Page 51 of 90 the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on- street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. Policy CE 7.1.8 Parking Configuration Site and design new development to avoid use of parking configurations or management programs that are difficult to maintain and enforce. (Imp 2.1, 7.1, 8.1) Comment: The CUP Conditions of Approval provide for specific restrictions and limitation in term of the occupancy of the Building in order to insure that the common area parking of the Bay Corporate Plaza is not impacted beyond the "fair share" of the total parking of 255 parking spaces. In addition, there is currently provided adequate on- site parking in accordance with the current Municipal Code to serve the demand of all of the building which make -up the Bay Corporate Plaza complex. Additionally, a Parking Management Plan has been required as a Conditional of Approval which establishes restrictions and limitations relative to off - street parking. All of the Conditions of Approval and the limitations on occupancy appear to be intended to ensure that the parking configurations and the management programs can be maintained and enforced by the City and the owners of the properties by seeking compliance with the Conditions of Approval, CUP limitations, and the provisions of the CC & R's. Based on a review of the General Plan land use designations, the goals and policies of the General Plan, and the intent of the General Plan to attain the vision of the City, it appears that the CUP and the Conditions of Approval are consistent with the General Plan land use designations and are further consistent with the relevant General Plan goals and policies. It appears that the uses and activities set forth in the CUP application is consistent with the General Plan goals and policies in that when considering all of the aspects of the CUP application, the Newport Jewish Center uses and activities can be found to further the relevant goals, policies and objectives of the General Plan and will not obstruct their attainment. Finding #2 - The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. The use is an allowed permitted use with the approval of a CUP, subject to the findings of the CUP. The use has been planned in a way that it does not violate any provisions of the Zoning Code, specifically parking traffic (trip generation) and environmental review. The construction of the tenant improvement will be in compliance with the Building Codes of the City of Newport Beach, and all occupancy requirements such as ADA requirements and fire safety will be provided in conjunction with the implementation of the tenant improvements. The uses and activities have been proposed to be in compliance with all regulations and requirements of the City so as to not create any nuisances or harm to adjacent properties, buildings and occupants. Finding #3 - The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. The uses and activities that are the subject of the CUP and the Conditions of Approval have been proposed so as to be compatible with the allowed uses within the vicinity of the building. The occupancy has been restricted and limited based on the "fair share" of the common area parking. By limited and restricting the occupancy, size, and operational characteristics of the proposed use, the use has been coordinated with the other buildings and uses so as to be compatible. The use is complimentary and similar and on a much smaller scale to the use of the adjoining YMCA and fits the general area of land uses and infrastructure. Most March 24, 2014 Page 52 of 90 importantly, the use proposed is an allowed use pursuant to the General Plan and the Zoning Ordinance. The assembly /meeting facilities seating and occupancy has been limited and restricted in size to that which could be accommodated by the net square footage of the floor area and the demand in comparison to the availability of parking. In addition, the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on- street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. There does not appear to be any design, location, size or operational characteristic that would make the use incompatible with the allowed uses in the vicinity. Finding #4 - The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. It appears that the proposed use will be conducted entirely within the square foot area of the current building on Parcel 3. There is no need to expand the building to accommodate the uses. The occupancy has been limited and restricted by the availability of current parking on -site. There is no need to add or expand the parking facilities. The City has provided a Condition of Approval that addresses additional parking that may be required at limited times during the year by requiring a Parking Management Plan. The Parking Management Plan does not require the physical expansion of off -site facilities and properties. In addition, the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on- street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. Finally, it appears that there is adequate infrastructure for the proposed use. No expansion or construction associated with the provision of public and emergency vehicle access and public services and utilities is required for the proposed use. Finding #5 - Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. There does not appear to be anything detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in area surrounding the proposed use. The most speculative concerns might be in the area of parking and traffic (trip generation). However, the RK Engineering Study substantiates that the parking demand of the proposed use and activities and the traffic (trip generation) associated with the proposed use and activities would not be detrimental to the property owners and tenants of the Bay Corporate Plaza and the other users of University Drive, and would not 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 use. The Parking Management Plan adequately addresses the limitations and restrictions on parking so that the parking demands of the Newport Jewish Center are accommodated by the Bay Corporate Plaza parking facilities. In addition, the Newport Jewish Center has negotiated and executed Parking Agreements with the YMCA which is adjacent to the Bay Corporate Plaza and the Newport Beach Golf Course to provide overflow parking as may be needed to prevent the unnecessary use of University Drive on- street parking and to insure that at all times require parking for the Newport Jewish Center will not have an impact on the Bay Corporate Plaza parking facilities. Erroneous or Inaccurate Appeal Documentation In the letter submitted to the Planning Commission on January 23, 2014 by Mr. Barry Ross, counsel to Mr. Jabara and Mobilitie, he stated erroneous and inaccurate information and testimony which appeared to be intended to March 24, 2014 Page 53 of 90 support the filing of the appeal on behalf of Mr. Jabara.. Contained herein are the comments offered in that January 23, 2014 letter ( "Ross Comments ") and response comments ( "Response Comments ") which are intended to address the Ross Comments. For reference, "Chabad" as stated herein refers to the Newport Jewish Center. Generally it is noted that the comments of Mr. Ross are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. Ross Comment: "The Bay Corporate Plaza Association consists of four similar two -story office buildings and an adjacent parking lot. The building at 2280 University Drive is owned by Elizabeth M. Johnson and occupied by Anza Property Management and several other commercial tenants. The next building at 2260 University Drive is vacant and has been vacant for several years. It is currently listed for sale. The next building at 2240 University Drive is owned by Stein Holdings, LLC. This is the building that the Chabad Jewish Center ( "Chabad ") wishes to occupy and use as a synagogue. The next building is the property of my client, Mobilitie, LLC. Mobilitie has been renovating the building for more than one year and just occupied the renovated building this past week..." Response Comment: Noted Ross Comment: " Mobilitie's business consists of telecommunications. The business has approximately 100 employees and utilizes approximately 100 parking spaces. In addition, Mobilitie's customers and vendors conduct about 10 to 15 visits by car per day. Mobilitie's employees generally work Monday through Friday, including Friday night and Saturday. On Friday night, there are approximately 10 to 50 employees. On Saturday, there are approximately 10 to 50 employees...." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. On March 12, 2014, there was a meeting held of the Bay Corporate Plaza Association. In attendance was Don Johnson (Association President) and Erin Sanders representing the ownership of the 2260 University Drive building, Russell Stein and Rabbi Reuven Mintz representing the ownership of the 2240 University Drive building; and Liana Almazan, the property manager and representing Mobilitie, LLC, Mr. Jabara, and the ownership of the 2220 University Drive building and also Chester Bragado, CPA representing Mobilitie and Mr. Jabara. At the end of that meeting, Mr. Johnson asked Mr. Braqado and Ms. Almazan how many employees Mobilitie has at the remodeled building. Mr. Almazan answered "approximately 40" and then Mr. Bragado added that he thought it was "around 45 employees ". In addition, the parking counts conducted by RK Engineering on February 22, 2014, February 25, 2014, March 12, 2014, and March 13, 2014 concluded the observed parking demands of the parking facilities during the weekdays and weekends. The counts appears to suggest that the "approximately 100 employees" requiring "approximately 100 parking spaces" was and is factually incorrect, erroneous and inaccurate of the actual parking demands of Mobilitie when compared to the actual parking demands of the current tenants of all of the buildings on the property. March 24, 2014 Page 54 of 90 According to the 1982 Bay Corporate Plaza building plans, the "fair share" parking allocated to the Mobilitie building was established by the City as 42 parking spaces in accordance with the City's parking requirements of 1 parking space per 250 net square feet. Based on this data, the use of the Mobilitie building at approximately 100 parking spaces (as represented by Mr. Ross) is 158% of this "fair share" allocation and would have a significant and detrimental impact on the other buildings and tenants of the Complex, particularly during the peak demand weekday hours resulting in Mobilitie having an unfair advantage of the use of the parking facilities. The limitation and restrictions of the occupancy in the Newport Jewish Center Building is specifically focused on maintaining the "fair share" allocation in comparison to what Mr. Ross has suggested that Mobilitie is not doing, including protecting the other tenants and buildings of the Complex by providing for off -site street parking through the use of the YMCA and the Newport Beach Golf Course Parking Agreements. In addition, the actual on -site parking counts based on the surveys by RK Engineering do not reflect the operating hours that was stated in this Ross Comment. However, the RK Engineering calculations of parking demand did included the use of 42 parking spaces by Mobilitie for the evening hours and the weekend hours to account for the potential parking that would be required based on Mobilitie conducting business beyond normal weekday working hours. The data of the RK Engineering parking counts, including the days and times of those counts are set forth in the RK Engineering Study, which is incorporated herein by reference. Ross Comment: "No one at the City of Newport Beach asked Mobilitie about Chabad or its parking requirements. Mobilitie never consented or approved of the use of Chabad at the Bay Corporate Plaza Association. You have in your staff report as attachment No. PC5 a letter from Bay Corporate Plaza Association signed by Donald P. Johnson as secretary/treasurer which states in part: "The majority of the Association members do not feel that the occasional evening or weekend use of the parking area by the Jewish Center is likely to create any overuse or otherwise cause the need for specific allocation of parking among members." Mobilitie, a member of the Association, was never asked by Bay Corporate Plaza Association for its input regarding Chabad or its parking requirements. Further, Mobilitie was never invited to a meeting of Bay Corporate Plaza Association to discuss this issue. Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegations or the comments offered. There appears to be evidence based on an interview with Mr. Don Johnson that Mobilitie and Mr. Jabara were asked to participate in the decision of the Association with regards to the Association's position on the CUP application. Email communications appear to have been sent to Ms. Liana Almazan, the manager of the Mobilitie seeking Mobilitie's position on the proposal by the Newport Jewish Center. Neither Ms. Almazan nor Mr. Jabara responded to that request. Instead, it appears that Mobilitie and Mr. Jabara chose not to respond and no response was received by Mr. Johnson. That being said, Mr. Johnson also contacted the owner of Parcel 2 and confirmed their support for the CUP. The CC & R's provide that Parcel 1 has a voting percentage of 21 %, Parcel 2 has a voting percentage of 36 %, Parcel 3 has a voting percentage of 26 %, and Parcel 4 has a voting percentage of 17 %. The owners of Parcel 1, 2, and 3 all indicated to Mr. Johnson their support for the CUP. Their vote resulted in 83% of the Association votes in support of the CUP. Based on this vote, it appears that Mr. Johnson sent the letter of support. March 24, 2014 Page 55 of 90 Ross Comment: "There are several reasons why the proposed Conditional Use Permit should be denied. These reasons are discussed below. 1. THIS IS THE WRONG ZONE FORA SYNAGOGUE, A CHURCH OR A MOSQUE. The property is zoned OG ( "Office /General "). This is defined in Section 20.20.101 of the Newport Beach Municipal Code as follows: "The OG Zoning District is intended to provide for areas appropriate for administrative, professional and medical offices with limited accessory retail and service uses." A religious institution does not fit within the description of the OG Zone. While a religious institution may be permitted in an OG Zone pursuant to a Conditional Use Permit, which the City has discretion to issue, the City should exercise its discretion to deny the application for a Conditional Use Permit because a religious institution is not appropriate in this particular OG Zone. Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. The authority to allow assembly /meeting facilities in the OG zone has already been addressed in these comments. In addition, the OG zone permits religious assembly /meeting facilities and there is a definition in the Municipal Code that clearly provides that such religions facilities are allowed in the OG zone with a CUP. It is the discretion of the City Council to approve or deny the application of the CUP, and they must do so based on the evidence in the record with regards to the findings that are required by Section 20.52.020 (F) of the Municipal Code. These findings have been discussed in previous sections of this content and shows that there is substantial evidence that supports the approval of the CUP based on the support of the findings. The Ross Comment provides no data, and quantitative and/or qualitative analyses that support the contention that a religious institution described in the CUP application does not fit within the description of the OG Zone. Further there is no data, and quantitative and/or qualitative analyses that support the contention that a religious institution is not appropriate in this particular OG Zone or location. As noted, the CUP approval in the OG zone for the assembly /meeting facilities use is subject to certain findings being met as are described in the Municipal Code. It is the City Council who has the discretion to review the administrative record and based on that record make those findings if they are supported by data, and quantitative and/or qualitative analysis. In the event those findings can be made, then the use pursuant to the CUP can and should be authorized and is in compliance with the provisions of the OG zoning district. The City Council does not appear to have the discretion to deny the CUP if the administrative record supports the findings. There is nothing in the Municipal Codes which suggest that the findings of compatibility of uses should be or is based on whether the use is "religious" or not. There is no rational reason for restricting a "religious" use as opposed to a "secular" use if the findings of the Municipal Code can be validated. In this case, there appears to be nothing inherently different between the intensity of Newport Jewish Center use and the general office use of the Building. March 24, 2014 Page 56 of 90 Ross Comment: "1 THE PARKING AND TRAFFIC ISSUES HAVE NOT BEEN PROPERLY CONSIDERED BY YOUR STAFF. Contrary to the information in your staff report, Chabad does not conduct group activities just on Friday night and Saturday. To the contrary, Chabad has three religious services per day. In addition, Chabad has "Mommy and Me" classes during the week. Although not mentioned in your staff report, most Chabad's have schools, including pre - schools. The school activity will involve children and more vehicles on and around the premises. Since there is no area designated for a school playground, there will no place for children to play outside, other than in the parking area. This is a formula for disaster." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. This Ross Comment actually completely misrepresents the activities and uses of the Newport Jewish Center. The factually correct statement of the Center's activities is identified in the RK Engineering Study and was used to determine the parking demands and traffic (trip generation) impacts, if any. As an example, the Center does not do "three religious services per day ". The Center does not have a "school or a pre - school" that has been included as a defined activity, and does not intended to have a school or pre- school in the future. Contrary to what Mr. Ross said, most Chabad Centers do not have pre - schools or other schools. More importantly, in this case there simply is no place for that activity to occur on the property, indoors or outdoors. There are no children that will be in the Building or on the site for the purpose of school activities or school playground activities. And, no children will be playing in the parking area which would create a "formula for disaster ". Any concern that Mr. Ross may have with the potential of schools or day care as part of the use of the Newport Jewish Center is address through the restrictions of Condition of Approval #I I which states: "# I I Educational or day care uses that may classify the space as an E occupancy per the California Building Code shall not be permitted." The Ross comments are simply speculations, erroneous, and factually incorrect based on the fact of the administrative record of the CUP, and sets forth false claims and accusations. Ross Comment: "While your staff report seems to indicate that parking will not be a problem, the staff report does not take into consideration the fact that Mobilitie's building has been vacant for more than one year during the renovation period. Also, the building at 2260 has been vacant for several years; it is currently for sale. When 2260 sells and becomes occupied by commercial tenants, combined with the parking requirements of Mobilitie, there will not be adequate parking for Chabad or anyone else." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. The RK Engineering Study has been prepared to address the parking demand and the traffic (trip generation) impacts taking into consideration the occupancy of all of the buildings in the Bay Corporate Plaza and has March 24, 2014 Page 57 of 90 reached specific conclusion therein. The RK Engineering Study is incorporated herein by reference. The RK Engineering Study, including parking counts was conducted following Mobilitie fully occupying the 2220 University Drive building and was fully operating. In addition, the 2260 University Drive building was assumed in the RK Engineering Study to be fully occupied and the parking analysis assumed the maximum number of parking that would be required based on the requirements of the Municipal Code. Therefore, the comment presented by Mr. Ross is factually incorrect. Ross Comment: "3. THE PROPOSED USE WILL VIOLATE THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS ( "CC &R's ") RECORDED JULY 12, 1983. Section 11.3 of the CC &R's is entitled Nuisances. It states in part" ... nor shall anything be done thereon which may be, or may become, an annoyance, nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Owners of his respective Lot." • Further, Section 11.6(e) states that the Board may adopt rules for the regulation of the admission and parking of vehicles, including, without limitation, commercial vehicles, and employee and Owner parking within the Covered Property." This appears to be a situation where the Board would be required to adopt a rule specifically allowing for the excessive use of parking by Chabad. Mobilitie would object to the Board taking any such action. Further, Section 12.1 of the CC &R's states that each owner is entitled to share the nonexclusive use of the parking area. There are no parking spaces designated to a particular owner. This parking arrangement would be disrupted by the excessive parking requirements of Chabad." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegations or the comments offered. The RK Engineering Study has been prepared based on the "fair share" allocation of parking that is provided for in the CC & R's and the parking provisions of the Municipal Code in consideration of the nonexclusive use of the parking area. The RK Engineering Study has been prepared to address the parking demand and the traffic (trip generation) impacts taking into consideration the occupancy of all of the buildings in the Bay Corporate Plaza and has reached specific conclusion therein. The RK Engineering Study is incorporated herein by reference. Further, to insure that the activities of the Center do not violate the CC & R's and do not create an annoyance, nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the owners of their respective lots, the City has provided a Condition of Approval of the CUP that provides for the use and implementation of a Parking Management Plan in compliance with certain limitations and restrictions on the occupancy of the Center's building. Ross Comment: "4. THE PROPOSED USE IS NOT EXEMPT FROM ENVIRONMENTAL REVIEW DUE TO THE SIGNIFICANT TRAFFIC AND PARKING IMPACTS. The traffic and parking impacts created by Chabad have not been properly analyzed. There has been no accurate or comprehensive analysis of traffic or parking impacts. In fact, the analysis of the traffic and parking impacts is incomplete and misleading Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. March 24, 2014 Page 58 of 90 The RK Engineering Study has been prepared to address the parking demand and the traffic (trip generation) impacts taking into consideration the occupancy of all of the buildings in the Bay Corporate Plaza and has reached specific conclusions therein. The RK Engineering Study is incorporated herein by reference. Further response comments are contained herein and is hereby referenced relating to designating the CUP as a Class 1 Categorical Exemption. Ross Comment: "5. THE WRONG PARTY SUBMITTED THE APPLICATION. Chabad is not the owner of the 2240 University Drive property. The owner is Stein Holdings, LLC, which purchased the property on May 29, 2012 from JDC Enterprises, LLC by document number 2012- 000303 -632. Therefore, Chabad should not be the applicant in connection with this proposal." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegations or the comments offered. In actuality, on September 30, 2013, Mr. David Stein, the owner of Parcel 3 signed the Property Owner's Affidavit and the Planning Permit Application on behalf of the Applicant, Newport Jewish Center. The application appears to be in in full compliance with the Municipal Code and it was accepted as being complete by the Director of Community Development. In addition, at the January 23, 2014 Planning Commission public hearing on the CUP, the City Staff and the Planning Commission verified that the application was complete. The application is included herein by reference. Ross Comment: "6. A RELIGIOUS INSTITUTION IS GENERALLY SUBJECT TO THE SAME REQUIREMENTS FOR A LAND USE PERMIT AS ANY OTHER APPLICANT; THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000 (RLUIPA) DOES NOT GIVE CHABAD AN EDGE OVER NON - RELIGIOUS USERS. Foursquare Gospel v. City of San Leandro (2011) 673 F. 3d 1059; Los Angeles V. Sahag- Mesrob Armenian Christian School (20 10) 188 Cal.App. 4th 85.1; Scottish Rite Cathedral Ass_ n of Los Angeles v, City of Los Angeles (2007) 156 Cal App. 4th 108. " Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegations or the comments offered. There does not appear to be any attempt by the Newport Jewish Center to seek an edge over non - religious users. On the contrary, the Center has complied with all of the provisions of the Municipal Code, the General Plan, and the Zoning Ordinance in the same way that non - religious users would be required to comply. The Center has not sought any variances with regards to the use of the Building. The Center commissioned the preparation of the RK Engineering Study to address and identify if there would be any demands created by the Center on the common area parking and traffic (trip generation) generated impacts in the same way that a non - religious uses would address parking and traffic (trip generation) under similar conditions. The Center has paid all fees and has participated in all procedural requirements and has not sought any waivers or time variances associated with the consideration of the CUP. March 24, 2014 Page 59 of 90 Ross Comment: "7. THE FINDINGS REQUIRED FOR A CONDITIONAL USE PERMIT HAVE NOT BEEN SATISFIED. Pursuant to Section 20.52.020 of the Newport Beach Municipal Code, the Planning Commission must make the following findings in order to approve a conditional use permit: (1) The use is consistent with the eg neral plan and the applicable specific plan; The use is not consistent with the general plan in that the use is a religious institution and the general plan calls for commercial office use." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. This is factually incorrect. The General Plan provides for a variety of uses within the OG land use designation, including religious and non - religious assembly /meeting facilities activities. The Zoning Ordinance also provides for religious and non - religious assembly /meeting facilities activities. Additional response comments are addressed herein under the discussion of Conditional Use Permit Findings. Ross Comment: A religious institution or "assembly" use is generally not allowed in a commercial office zone unless a Conditional Use Permit is issued. There is no reasonable basis for the issuance of a Conditional Use Permit in this case. Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. The reasonable basis for the issuance of the CUP is that it complies with the General Plan and the Zoning Ordinance, the General Plan Land Use designation and Zoning Map designation for the property, the findings for the issuance of a CUP can be met, the parking and the traffic (trip generation) impacts have been evaluated and addressed, and the use is categorically exempt under the CEA Guidelines. There does not appear to be any rationale based on the administrative record to suggest that there is substantial evidence that would support the denial of the CUP. Additional response comments are addressed herein under the discussion of Conditional Use Permit Findings. In the event the City Council were to deny the CUP after the administrative record was established that the CUP is in compliance with the General Plan and the Zoning Code, and all of the findings were made in the affirmative in support of the application, the denial might be considered to be a discriminatory action focused on a "religious" activity setting a new questionable standard for the consideration and approval of similar CUP's. March 24, 2014 Page 60 of 90 Ross Comment: "(3 ) The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; The anticipated use by Chabad is not compatible with the allowed uses in the vicinity, namely commercial office space." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. On the contrary, the proposed use and activities of the Center will all be conducted within the second floor of the Building. Except for knowing that the Center occupies the Building, the vehicle and pedestrian activities will be the same as the pedestrian and vehicle activities of the other buildings in the Bay Corporate Plaza, much of which will occur at different times and days than the weekday activities that are typical of office building use activities. In addition, the adjoining use to the west is the YMCA, which provides services to the community which could be compared to the same way that the Center provides services to the community. Additional response comments are addressed herein under the discussion of Conditional Use Permit Findings. Ross Comment: "(4) The site is physically suitable in terms of design, location, shape, size, operating characteristics and the provision of public emergency vehicle (e.g., fire and medical) access and public service and utilities; and A commercial office park is unsuitable for a religious institution, which will have childcare facilities, "Mommy and Me" classes, pre - school and regular school, without any yard or open space for children to play other than in the parking lot. Further, the use by Chabad will result in parking and traffic congestion on the site." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegations or the comments offered. The City Council Agenda Report accurately states the intended Newport Jewish Center use of the second floor of the Building, wherein the City states: "...No increase in floor area is proposed, and the existing 7,974 net square feet of general office uses on the first floor remain. The interior renovations consist of a multipurpose room, social hall, and administrative offices, with remaining floor area designated for a children's room, kitchen, library, and storage. The multipurpose room will be used for support groups, workshops, and education classes with the social hall used for lectures, community gatherings, and religious services (periods of worship)...." There is no substantial evidence that the commercial office park is unsuitable for a religious institution. Further there is no substantial evidence that the proposed use will include childcare facilities, pre - school and regular school. Therefore, there is no need for any yard or open space for children to play and there will be no children playing in the parking area. There is no substantial evidence that the Center will result in parking and traffic (trip generation) congestion on the site. The RK Engineering Study has been prepared to address the parking demand and the traffic (trip generation) impacts taking into consideration the occupancy of all of March 24, 2014 Page 61 of 90 the building in the Bay Corporate Plaza and has reached specific conclusions therein. The RK Engineering Study is incorporated herein by reference. It is important to note that the Newport Jewish Center did not include in the application for the CUP a pre- school or regular school that would be included and authorized in the event the CUP was approved. The comment by Mr. Ross misrepresents the application and the intended use of the Newport Jewish Center. Additional response comments are addressed herein under the discussion of Conditional Use Permit Findings. Ross Comment: use. The proposed use will be detrimental to the harmonious and orderly growth of the commercial center and might create a hazard to children who are attending functions at Chabad. Further, there will be increased traffic congestion and unavailability of parking spaces for not only Chabad, but also for the other commercial residents of the Bay Corporate Plaza Association." Response Comment: The comments are conclusory statements unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegations or the comments offered. The RK Engineering Study has been prepared to address the parking demand and the traffic (trip generation) impacts taking into consideration the occupancy of all of the building in the Bay Corporate Plaza and has reached specific conclusion therein. The RK Engineering Studyis incorporated herein by reference. Further, there is no substantial evidence which supports the conclusion that the proposed use and activities will be detrimental to the harmonious and orderly growth of the commercial center (nor is any growth proposed) and might create a hazard to children who are attending functions at the Newport Jewish Center. Further, there is no substantial evidence that the proposed use and activities will increase traffic (trip generation) congestion and that there will be unavailable parking spaces for not only the Newport Jewish Center, but also for the other commercial residents of the Bay Corporate Plaza Association. Additional response comments are addressed herein under the discussion of Conditional Use Permit Findings. In general, most all of the comments made by Mr. Ross were erroneous and factually incorrect, and appear to have been intended to mislead the Planning Commission and the City Council an attempt to gain a denial of the CUP permit as it was being considered by the Planning Commission on January 23, 2014 and now by the City Council on March 25, 2014. It appears that the comments made by Mr. Ross were offered as an attempt to mislead the Planning Commission in their discernment of the oral and written testimony. It is interesting to note that Mr. Ross did not provide the Planning Commission with the letter prior to the Planning Commission's meeting so that the Planning Commission would have ample time and opportunity to review and consider it with any responses from the Staff. These statements simply appear to have been intended to establish a record for ligation purposes with factually incorrect and erroneous information. The comments of Mr. Ross appear to be focused on the "religious" nature of the use that is proposed by the CUP. There is no rational reason for restricting a "religious" as opposed to a "non- religious" activity in this case. There is nothing inherently different between the intensity of the Newport Jewish Center in comparison to the general office occupancy of the Building. Again, one has to question the real motivation behind the opposition by Mr. Jabara and Mobilitie with regards to the CUP application as represented by Mr. Ross. March 24, 2014 Page 62 of 90 The effort of Mr. Ross to mislead, confuse, and misrepresent the data, and quantitative and/or qualitative analysis associated with the CUP application appears to be self - serving and prejudicial, and with what appears to be the sole focus on litigation as again expressed in the letter prepared by Mr. Ross dated March 19, 2014. CC & R's Use Restrictions and Wrong Zone for the Use One of the allegations sets forth in the appeal request is that "The proposed use will violate the use restrictions in the CC & R's ". It appears that the Newport Jewish Center's compliance with the CC & R's is not a topic of consideration that is applicable to the City Council's denial or approval of the CUP. However, for purposes of information, the following addresses this allegation. A second allegation set forth in the appeal request is that "this is the wrong zone for this use" Neither allegation is supported by data, and quantitative and/or qualitative analysis contained in the appeal application that should have provided necessary substantial evidence to support the allegations. The Bay Corporate Plaza was approved by the City in or about 1982. At that time the zoning of the property was designated on the City's Zoning Map as one of several Commercial Uses. The specific use was "APF — Administrative, Professional Financial ". This has been verified based on the 2010 Updated Zoning Map, incorporated herein by reference. The then current Zoning Code provided for the uses that were permitted in the "APF" designated zones. It appears that a number of times after 1982, the City's Zoning Map and the Zoning Code were amended. In 2010, the City conducted a "Comprehensive Zoning Code Update" and amended the Municipal Code. This updated resulted in major changes to the Zoning Code to insure that it was current and consistent with the General Plan. As stated in a document of the Newport Beach Planning Department entitled "Comprehensive Zoning Code Summary of Changes" dated October 2010, the following was recognized in the section entitled "Changes to Zones": "Existing commercial zones (RSC, RMC and APF) have been diversified. The existing retail zones (RSC and some RMC areas) are now the CC (Commercial Corridor), CG Commercial General), CN (Commercial Neighborhood), CM (Commercial Recreational and Marine) and the CV (Commercial Visitor- Serving). The existing office zone (APF) becomes the OA (Office — Airport), OG (Office — General), OM (Office — Medical) and the OR (Office — Regional)" The "Comprehensive Zoning Code Summary of Changes" dated October 2010 is incorporated herein by reference. The 2010 Comprehensive Zoning Code Update appears to have transitioned the zoning designation of the property from APF to OG (Office- General). The APF zoning restrictions were contained in Chapter 20.15 of the pre -2010 Zoning Code which expired November 24, 2010. Section 20.15.010 of the pre -2010 Zoning Code stated, in part: "Specific commercial districts are as follows:... Administrative, Professional, and Financial (APF) District. Provides areas which are predominantly offices, but which also accommodate support retail and service uses..." March 24, 2014 Page 63 of 90 Section 20.15.020 of the pre -2010 Zoning Code set forth the following "land use regulations ": "20.15.020 Commercial Districts: Land Use Regulations The following schedule establishes the land uses defined in Chapter 20.05 as permitted or conditionally permitted in commercial districts, and includes special requirements, if any, applicable to specific uses. The letter "P" designates use classifications permitted in commercial districts. The letter "L" designates use classifications subject to certain limitations prescribed under the "Additional Use Regulations" which follows. The letters "UP" designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91. The letters "PD/U" designate use classifications permitted on approval of a use permit issued by the Planning Director, as provided in Chapter 20.91. The letters "PIUP" designate use classifications which are permitted when located on the site of another permitted use, but which require a use permit when located on the site of a conditional use. Letters in parentheses in the "Additional Regulations" column refer to "Additional Use Regulations" following the schedule. Where letters in parentheses are opposite a use classification heading, referenced regulations shall apply to all use classifications under the heading." "Religious Assembly" was a use that was stated in the table set forth in Section 20.15.020 as being allowed in the APF zone subject to certain limitations which were identified as L-1 l under the "Additional Use Regulations ". In addition, "Offices, Business and Professional" uses were allowed as use classifications that were permitted in the APF zone without any limitations. The L -11 limitations stated "Limited to facilities occupying less than 5,000 square feet; use permit required." The latest version of Title 20 of the Municipal Codes sets. forth the Planning and Zoning Code of the City of Newport Beach that was adopted in 2010. This is contained in the City's Municipal Code and was adopted pursuant to a Comprehensive Zoning Code Update of the City of Newport Beach Zoning Code by City Council Ordinance No. 2010 -21 on October 26, 2010. The current zoning of the property is addressed in Ordinance No. 2010 -21 and the current zoning map and applicable regulations are incorporated therein by reference. Ordinance No. 2010 -21 is incorporated herein by reference. It appears clear therefore, that the pre -2010 Zoning Code which was referred to in the CC & R's did permit the uses and activities that are proposed in the CUP applications. The property which was previously required to comply with the APF zoning requirements, currently is required to comply with the OG zoning requirements. It is noted however, that although the zoning transition occurred at the level of the City of Newport Beach, the CC & R's were not modified or amended accordingly by the Bay Corporate Plaza Association. Therefore, the CC & R's are not literally in sync with the current zoning requirements, but are figuratively in sync. Therefore, it appears thatthe content of the CC & R's that applied to the land use restrictions of the City in 1982 is now appropriately limited by the land use restrictions pursuant to Ordinance No. 2010 -21 adopted in 2010. Section 11.1 of the CC & R's sets forth the land use limitations for the property, as follows "Section 11.1 - Permitted Uses. All Lots in the Covered Property shall be used for no purpose other than administrative, professional and commercial purpose as permitted by the City's zoning ordinance, except for the Community Facilities on which there may be placed landscaping and parking areas. All business operations shall be performed and carried out entirely within a Building in such a manner that the enclosed operations and uses do not cause or produce a nuisance to other portions of the Covered Property." It appears that the land use limitations of the CC & R's provide that the uses permitted were to be for no other purpose than "administrative, professional and commercial purpose as permitted by the City's zoning ordinance" and were to be "performed and carried our entirely within a building". It also appears that Section 11.1 of the CC March 24, 2014 Page 64 of 90 & R's was directing the permitted land uses to the APF zoning requirements in effect at that time. The permitted administrative, professional and commercial purposes were identified and described in the Zoning Ordinance that was in effect in 1982. The parallel provisions that are applicable today in 2014 are the uses that are described in Chapter 20.20 of the current Zoning Ordinance which provides for the OG (Office General -Use) and which was adopted by Ordinance No. 2010.21. The 2010 Comprehensive Zoning Code Update appears to have transitioned the zoning designation of the property from APF to OG (Office- General). While the CC & R's were not specifically amended, the content of the CC & R's that stated "no purpose other than administrative, professional and commercial purpose as permitted by the City's zoning ordinance" and which then referred to the APF zoning requirements, in 2010 and thereafter now referred to the OG zoning requirements. Section 20.20.010 of the Municipal Code describes the purpose of commercial zoning districts and states the following with regards to the OG zoning district: "OG (Office — General) Zoning District. The OG Zoning District is intended to provide for areas appropriate for administrative, professional, and medical offices with limited accessory retail and service uses. It is noted that the administrative and professional purposes are incorporated therein Section 20.20.020 (A) states: "A. Allowed Land Uses. Tables 2 -4 and 2 -5 indicate the uses allowed within each zoning district and the permit required to establish the use, if any, in compliance with Part 5 of this title (Planning Permit Procedures)." Tables 2 -4 set forth difference categories of uses that are allowed within the various land use districts. In addition to Office- Business, Office- Corporate, Office - Medical and Dental and Office - Professional, the OG zone allows for Assembly/Meeting Facilities, including religious assembly pursuant to a CUP. Section 20.70.020 of the Municipal Code sets forth the definition of specific terms and phases used in the Municipal Code. The following assembly /meeting facility definition is set forth therein: "Assembly /meeting facilities, public or private (land use)" means a facility for public or private assembly and meetings. May include incidental serving of alcoholic beverages. Illustrative examples of these uses include: 1. Banquet rooms. 2. Civic and private auditoriums. 3. Community centers. 4. Conference /convention facilities. 5. Meeting halls for clubs and other membership organizations. 6. Places of worshiR, including limited associated accessory uses (i.e., religious school activities that are not full -time and residences for clergy (see "Caretaker residence "), and excluding schools with regular daily sessions. 7. Sports stadiums and arenas. S. Yacht clubs. March 24, 2014 Page 65 of 90 Also includes functionally related internal facilities (i.e., kitchens, multi -pMose rooms, storage, etc.). Does not include conference and meeting rooms that are accessory and incidental to another principal use and typically used only by on -site employees and clients, and that occupy less floor area on the site than the principal use they support. Does not include sports or other commercial entertainment facilities (see "Commercial entertainment and recreation "). Does not include funeral homes and mortuaries (see "Funerals homes and mortuaries"). Related on -site facilities including day care centers and schools are separately defined (see "Day care, general" and "Schools, public and private') ". (Emphasis added) Based on this definition, it appears that the proposed uses that are identified in the CUP are clearly allowed and are permitted use within the OG zone and is permitted under the provisions of the CC & R's, as the zoning ordinance has been revised and amended. The various functionally related internal facilities, including, but not limited to the offices, kitchen, library, children's room, storage, restrooms, lobby, waiting area, chair storage, general storage utility rooms and corridors are all permitted as accessory uses to the primary use of assembly /meeting facilities pursuant to the Municipal Code. Therefore, it appears that the office uses proposed in the CUP and the assembly /meeting facilities proposed in the CUP are authorized pursuant to the zoning designations and Zoning Ordinances of the City, and are "permitted by the City's zoning ordinance" as set forth in the CC & R's. This appears to be consistent with the provisions of the CC & R's, as the Municipal Code and the Planning and Zoning Ordinance has been amended since the CC & R's were prepared and recorded in 1982. Therefore, even if the City Council did have the obligation to find that the CUP is in compliance with the CC & R's, there appears to be substantial evidence to show that the CUP is in compliance with the CC & R's as adopted in 1982 and is in compliance with the current Planning and Zoning Ordinance adopted by the City pursuant to Ordinance No. 2010 -20. Based on the fact that the CUP office use and the assembly /meeting facilities are allowed uses within the zone pursuant to the Municipal Code, it appears that if the City Council can make the findings that are required by Section 20- 52.020 (F) of the Municipal Code, then the inclusion of the office use and assembly meeting facilities which would be allowed under the CUP is "not the wrong zone for the uses ". Additional Mobilitie Allegations In the various correspondences offered by Mr. Jabara, Mobilitie and their representatives, several allegations and assertions stand out. These include the following: 1. The anticipated use of the property for evening and weekend activities attracting large groups of individuals would serve to interfere with potential future use by prospective new tenants within the 2220 University Drive building. Response: The comment is a conclusory statement unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegation or the comment offered. There is nothing contained herein that provides any understanding of how the Newport Jewish Center would "interfere" with the future use by the prospective tenants within the 2220 University Drive Building. There is nothing contained in herein that acknowledges the limitations and restrictions on the occupancy of the Newport Jewish Center in the evenings and on weekends pursuant to the CUP Conditions of Approval. 2. The anticipated use of the property and the proposed night and weekend use of the premises could compromise the safety and security of the complex in general. Response: The comment is a conclusory statement unsupported by factual information. There is no data, and quantitative and /or qualitative analysis that supports the allegation or the comment offered. There is nothing March 24, 2014 Page 66'of 90 contained herein describing how the proposed night and weekend use will compromise the "safety" and "security" of the complex. It is totally unclear how a Jewish "religious" indoor activity can result in "safety" and "security" issues. 3. The anticipated use of the property will potentially result in diminished property values. Response: The comment is a conclusory statement unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegation or the comment offered. There is nothing contained herein that shows how the Newport Jewish Center and the Jewish "religious indoor activities will result in a diminished property value or even what that diminished value might be. 4. The anticipated use of the property will pose an after hour security risk. Response: The comment is a conclusory statement unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegation or the comment offered. There is nothing contained here in describing how the proposed night and weekend use will compromise the "safety" and "security" of the complex. It is totally unclear how a Jewish "religious" indoor activity will pose an after hour "security risk ". 5. The anticipated use of the property will result in the imposition of excess common area fees. Response: The comment is a conclusory statement unsupported by factual information. There is no data, and quantitative and/or qualitative analysis that supports the allegation or the comment offered. There is nothing contained herein that provides any data or analysis that supports the contention that the use of the property will result in the imposition of excess common area fess, or even what additional costs and maintenance will be required as a result of the use of the Newport Jewish Center conducting activities that are part of Jewish religious activities. The common areas fees relate to the operation, maintenance and improvement of the common areas (i.e. landscaping and parking facilities) and the administration of the Association. There is nothing offered to show that the Newport Jewish Center uses and activities, including the use of the parking facilities would cause common area fees to increase any different than if the Building was used for general office. The allegations and objections are simply not supported by the evidence in the record and are speculative in nature. Again, one has to question the real motivation behind the opposition by Mr. Jabara and Mobilitie with regards to the CUP application. Further Environmental Review As previously noted, the proposed CUP uses and activities have been determined to be categorically exempt in accorditlg with Section 15301 of the CEQA Guidelines. This has been substantiated by prior comments contained herein and by the administrative record. Based on that determination, no further environmental review is required or necessary. However, to validate that there are no other environmental topics that should have been reviewed as a part of the consideration of the proposed use and the CUP, the following provides a general environmental summary. It is based on the contents of the City's Environmental Information Form I. AESTHETICS Describe whether the project could potentially obstruct any scenic vista or view open to the public, or create an aesthetically offensive site open to public view. Could the project block any private views? Describe exterior lighting that is proposed for the project and means that will be utilized to reduce light and glare impacts on surrounding properties. March 24, 2014 Page 67 of 90 Comment: The proposed CUP and proposed uses and activities that would be conducted pursuant to the CUP will required no exterior changes or modifications to the current physical conditions of the Bay Corporate Plaza complex or the subject building. Therefore, there are no impacts associated with aesthetics. II. AGRICULTURE & FOREST RESOURCES Describe any agricultural and /or forest land resources presently located at the project site. Describe any changes to this resource as a result of the implementation of the proposed project. Comment: Not Applicable III. AIR QUALITY Describe any air emissions or odors that could result from the project, including emissions during construction, and any measures that are proposed to reduce these emissions. There are no air emissions or orders that could result from the proposed use or activities. Any vehicle emissions are equal to or less than the emission that would be generated by the permitted use of the building as Office General based on the traffic (trip generation) generation analyses set forth in the RK Engineering Study. IV. BIOLOGICAL RESOURCES Describe the existing vegetation on the site, and any trees or large shrubs that are to be removed. Identify any fish or wildlife that inhabits the site. Comment: None V. CULTURAL RESOURCES Please indicate whether any archaeological or paleontological surveys have been done on the site. Could the project result in any adverse physical or aesthetic effects to any building, structure, or object having historical, cultural, or religious significance? Comment: None VI. GREENHOUSE GAS EMISSIONS Describe any greenhouse gas emissions that could result from the project, including emissions during construction, and any measures that are proposed to reduce these emissions. Please include a description of energy and water conservation features or practices proposed (i.e., low- energy lighting, use of ENERGY STAR appliances /fixtures, LEED Certification, drought- tolerant landscaping). Comment: None VII. GEOLOGY AND SOILS Please describe the earthwork that will be required for the project. Include grading quantities, and the location of borrow or stockpile sites, and haul routes, if applicable. Describe any geotechnical or soils investigations that have been conducted. Include exhibits showing existing and proposed topography, retaining walls, and erosion control devices. March 24, 2014 Page 68 of 90 Comment: None VIH. HAZARDS AND HAZARDOUS MATERIALS Identify any aspects of the project that could present a risk to public health due to normal operations, or due to an explosion or the release of hazardous substances (including, but not limited to: oil, pesticides, chemicals or radiation) in the event of an accident or spill. Is there any possibility that the site could be contaminated due to previous uses or dumping? If so, what measures are proposed to eliminate the hazard or contamination? Is the project located in a flood hazard zone? Comment: None IX. HYDROLOGY AND WATER QUALITY Describe existing and proposed site drainage, and measures that will be employed to reduce erosion and prevent contaminated runoff from entering the storm drain system, groundwater or surface water. Describe any changes that could occur in groundwater or surface water. Comment: None X. LAND USE AND PLANNING Describe: a) the existing land uses and structures on the project site and on adjacent parcels; b) the project's conformance with existing land use plans and regulations for the property; and c) its compatibility with surrounding land uses. Comment: Refer to prior comments contained herein XI. MINERAL RESOURCES Describe the affect on any adopted energy conservation plan, use of nonrenewable resources and whether the project will result in the loss of any known mineral resource of future value to the region and residents of the State. Comment: Not Applicable XH. NOISE Describe any sources of noise that impact the site, and any noise - generating equipment that will be utilized on the property, either during construction or after occupancy. What means to reduce noise impacts on surrounding properties or building occupants are proposed? Comment: All uses, activities and tenant improvements will be conducted inside an already constructed building. No noise is projected. XHL POPULATION AND HOUSING H the project is residential, please explain how the project will comply with the affordable housing policies contained in the Housing Element of the General Plan. Identify the number of bedrooms per unit and the expected average household size? What is the projected sales price or rent of the units? If the project is commercial, industrial, or institutional, please identify the tenants and/or uses and the estimated number of employees. Comment: Not Applicable March 24, 2014 Page 69 of 90 X11V. PUBLIC SERVICES Please identify whether adequate capacity currently exists for the following public services and utilities. If expansion is needed, explain how it will be accomplished. Please attach any written confirmation of capacity you have received from service providers. • Fire protection • Police protection • Schools • Maintenance of Public facilities, including roadways • Other Government Services Comment: Current capacity and service to the subject building exists for all service and facilities. No expansion is required. XV. RECREATION Describe the impact of the project on the demand for neighborhood regional parks or other recreational facilities and any affect on existing recreational opportunities. Comment: None XVL TRANSPORTATION /TRAFFIC Please identify any changes or improvements to the circulation system that are proposed as part of the project (including pedestrian and bicycle paths, and public transit). Comment: None XVII. UTILITIES & SERVICE SYSTEMS Please identify whether adequate capacity currently exists for the following public services and utilities. If expansion is needed, explain how it will be accomplished. Please attach any written confirmation of capacity you have received from service providers. • Natural gas • Communications Systems • Local or regional water treatment or distribution facilities • Sewer systems or septic tanks • Storm water drainage systems • Solid waste and disposal Police protection • Local or regional water supplies Comment: Current capacity and service to the subject building exists for all service and utilities. No expansion is required. Mobilitie Completes Construction without Approval of Architectural Committee Based on the appeal documentation of Mobilitie and Mr. Jabara, and in addition to the issues that Mr. Jabara has raised with regards to parking and trip generation which is addressed herein, Mr. Jabara has made the claim that the Newport Jewish Center is not a compatible use within the Bay Corporate Plaza Complex and to the Mobilitie office building, and references the Newport Jewish Center lacking compliance with the CC & R's. The March 24, 2014 Page 70 of 90 compatibility of the uses'has been discussed herein and it appears to be compliance with the City of Newport Beach General Plan and Zoning Code, and the Bay Corporate Plaza CC & R's. Mr. Jabara has also suggested that the Newport Jewish Center use will significantly reduce the property value of the Mobilitie building and that it will cost Mr. Jabara and Mobilitie millions of dollars in additional costs and loss in value. There is no substantial evidence in the administrative record in terms of data, and quantitative and/or qualitative analysis to support this allegation. Even though the future use and activities of the Newport Jewish Center are conducted indoors, Mr. Jabara appears to represent that the mere fact that a "Jewish religious center" is within the Complex that this type of religious indoor activity will have an adverse effect on the values of the adjoining buildings, including the Mobilitie building. This is not supported by any facts, data, or analysis. Although it is not relevant to the approval or denial of the appeal, or the approval or denial of the CUP, it is interesting to note that Mr. Jabara has sought compliance by the Newport Jewish Center with regards to the CC & R's, while Mr. Jabara and Mobilitie have conducted activities which appear to not be in compliance with the same CC & R's. The following is offered for reference. Section 1.1 of the CC & R's provide the definition of the Architectural Committee as follows "Section 1.1 "Architectural Committee" shall mean and refer to the committee or committees provided for in Article V hereof, entitled "Architectural Control." Section 5.1 of the CC & R's state: "Section 5.1 - Appointment of Architectural Committee. The Architectural Committee shall consist of three (3) persons. The Declarant shall initially appoint the Architectural Committee. The Declarant shall retain the right to appoint, augment or replace all members of the Architectural Committee for so long as Declarant holds any beneficial interest, whether as an Owner or a Mortgagee, in the Covered Property. When the Declarant no longer holds such beneficial interest, the right to appoint, augment or replace all members of the Architectural Committee shall automatically be transferred to the Board. Persons appointed by the Board to the Architectural Committee must be Members; however, persons appointed by Declarant to the Architectural Committee need not be Members, in Declarant's sole discretion." Section 5.3 of the CC & R's state in part: "Section 5.3 - Approval and Conformity of Plans. (a) No Improvements shall be erected, placed, altered, maintained or permitted to remain on any of the Covered Property until plans and specifications showing the plot' layout and all exterior elevations with materials and colors therefor and structural designs, signs, parking, driveway, walkways and landscaping shall have been submitted to and approved in writing by the Architectural Committee. Such plans and specifications shall be submitted in writing over the authorized signature of the Owner or occupant of the Lot, or his authorized agent..." In the later part of 2013 and early 2014, following the purchase of the 2220 University Drive Mobilitie building, certain interior improvements were constructed and completed. More importantly a handicapped ramp, railings and exterior glass wall partitions, landscaping and other exterior improvements were completed on Parcel 4 of the Bay Corporate Plaza. In addition, a large exterior monument sign was installed. Many of these improvements are not in harmony or compatible with the other buildings in the Complex in terms of materials and design. More importantly, it is understood that Mobilitie and Mr. Jabara did not submit in writing the plans and specifications to construct these improvements to the Bay Corporate Plaza Association Architectural Committee to gain their approval. No plans and specification were approved by the Architectural Committee. More importantly, Mr. Jabara proceeded to complete, erect, place, and alter the walkways, handicapped ramps, March 24, 2014 Page 71 of 90 landscaping, and signage without having first obtained the written approval of the Architectural Committee in accordance with the CC & R's. To further provide evidence that supports Mr. Jabara's failure to conform to the provisions of the CC & R's, it appears that Mobilitie and Mr. Jabara, on or about March 18, 2014, had a mature tree cut -down between the Parcel 3 and 4 buildings in the Bay Corporate Plaza without obtaining the approval of the Architectural Committee. It also appears that this tree was installed at the time the Complex was constructed in 1982 which would make the tree more than 30 years old. It appears that the removal of the tree may have been in violation of the City of Newport Beach approved landscaping plans for the Complex, which should have been reviewed and approved by the City and particularly the Architectural Committee of the Bay Corporate Plaza Association per the CC & R's. Additional evidence relates to the construction activities that took place prior to the occupancy of the Mobilitie building. It was observed that off -hours construction was taking place during the entire time that the construction was occurring. Additionally, Mobilitie and their construction contractors did not maintain the property during construction in disregard for the other tenants of the Complex. Further, during the construction, the contractors closed 1/3 of the parking area and did not get the permission of the Association or coordinate their construction activities with the other property owners and tenants of the Complex. This created an undue nuisance and precluded the quiet enjoyment of the Complex by the various property owners and tenants. These actions were conducted in total disregard to the other property owners and tenants of the Complex. Newport Jewish Center in Comparison to a Traditional Synagogue Mobilitie and Mr. Jabara appear to have focused on the allegation that the Newport Jewish Center will have activities that will create nuisances which will result in the devaluation of the Mobilitie building. They have suggested that the Newport Jewish Center is comparable to a large Jewish temple, such as Temple Beth Yahm or a large community church such as Mariners or Saddleback Church, or Our Lady Queen of Angels Catholic Church. Although the Newport Jewish Center use is an allowed use with a Conditional Use Permit subject to certain findings,, it may be valuable to generally understand the difference between a Newport Jewish Center (Chabad) and a traditional Jewish temple such as Temple Bat Yahm which is located in the City of Newport Beach. Temple Bat Yahm website describes Temple Bat Yahm as a Jewish Reform Synagogue in Orange County serving a congregation of over 650 families from the nearby towns of Newport Beach, Irvine, Costa Mesa, Huntington Beach, and Laguna Beach. Their clergy, led by Senior Rabbi Gersh Zylberman, includes a team of Rabbi's, professional Jewish educators and an ordained Cantor. They have a nationally accredited Jewish Preschool, innovative religious school, thriving adult education programs, a strong calendar of social events, beautiful High Holiday services, and many other programs that make Temple Bat Yahm a center of Jewish Life. It is a family membership organization that is ever expanding to generate revenues through formal membership. Currently, the actual average cost (dues) per family is $2,900 per year. In order to be able to serve the broad community that it reaches out to, the Temple needs to maintain and build the membership of the congregation. Chabad consists of small community oriented centers which make up more than 2500 branches of today's largest international organizations involved with Jewish education and outreach programs. In Orange County there are 14 such centers. In California there are approximately 120 such centers. Embracing the philosophy of Chabad, which originated in in White Russia during the 18th century, Chabad's underlying doctrine is "Ahavat Yisrael" (love for a fellow). Chabad recognizes no differences between Jews. Its goal is to serve the local community spiritual and physical needs of each Jew regardless of affiliation. Newport Jewish Center (the local branch of Chabad) was primarily seen as a humble organization where people could feel at home attending adult education programs or religious services. But it soon became apparent to all that Newport Jewish Center was more than that. The Center has blossomed into a multi- faceted educational outreach and special needs organization, serving a constituency beyond those who regularly attend its programs. March 24, 2014 Page 72 of 90 The Newport Jewish Center embraces all that attend its programs in a non judgmental way. Unlike the standard Jewish temple with a membership and a target audience across Orange County, the Newport Jewish Center does not have,a membership. Rather it opens its educational programs to the local Jewish and special needs community. The Newport Jewish Center has fourteen sister Centers in Orange County and the Newport Jewish Center focuses its programing on the local Newport Jewish Community. Each Center is unique in that they tailor its programs towards the enhancement of their individual community and compliments existing opportunities. The Newport Jewish Center serves a small local population of those who observe the Jewish faith. They do not have team of Rabbi's and educators. The Center is run by a Rabbi Mintz and his wife, Chani, with the support of a very small local and community volunteer staff. They are not membership oriented and do not have a membership dues structure that demands a large congregation. Instead they maintain their financial strength by contributions, donations and endowments that support the spiritual journey for those who seek this direction. The result is that the congregation is more closely focused to the needs and wants of the local community and the services are focused towards a smaller audience than is a Temple. The calendar activities are generally smaller than a Temple, and many of the religious celebrations are not conducted at the location of the Center, but are brought into the Community at venues that can best serve and be accessible to the neighborhoods of the Community. An example of this is the Chanukah celebration each year at the Fashion Island Shopping Center. It appears that Mr. Jabara is attempting to represent that the Newport Jewish Center is comparable to a Temple similar to Temple Bat Yahm, or will grow to be the likes of a Mariners or Saddleback Church, rather than understanding that the Newport Jewish Center by design, purpose and mission is a local community service and amenity.; Documents and Materials Incorporated Herein by Reference For purpose of establishing the administrative record, the following documents are incorporated herein by reference: 1. The Municipal Code of the City of Newport Beach as of March 2014 2. The City of Newport Beach General Plan adopted July 25, 2006 and approved November 7, 2006 3. The Zoning Code of the City of Newport Beach as set forth in Title 20 of the Municipal Code of the City of Newport Beach revised, updated and adopted October 26, 2010 4. The Zoning Code of the City of Newport Beach as set forth in Title 20 of the Municipal Code of the City of Newport Beach which expired November 24, 2010 5. The Comprehensive Zoning Code Summary of Changes dated October 2010 and prepared by the City of Newport Beach Planning Department 6. The Zoning Map for the City of Newport Reach revised, updated and adopted October 2010 7. City of Newport Beach General Plan Map as of March 2014 8. City of Newport Beach General Plan Figure LU 10 Statistical Areas GI, JI45, KI and K2 adopted November 11, 2012 9. The Newport Jewish Center CUP Application and all attachments as filed with the City of Newport Beach on September 30, 2013 March 24, 2014 Page 73 of 90 10. Ordinance No 2010 -21 — AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING A COMPREHENSIVE UPDATE OF TITLE 20 — PLANNING AND ZONING OF THE NEWPORT BEACH MUNICIPAL CODE 11. Newport Jewish Center Observed Parking and Trip Generation Study, City of Newport Beach prepared by RK Engineering, Group, Inc. dated March 14, 2014 12. Barry A. Ross Letter dated January 23, 2014 presented to the City of Newport Beach Planning Commission on January 23, 2104 relative to Agenda Item No.3- Newport Jewish Center- PA 2013 -206 240 University Drive, Newport Beach, CA, Conditional Use Permit No. UP2013 -023 13. Bay Corporate Plaza, Newport Beach Construction Plans as prepared by Lee & Stock Architects dated on or about May 26, 1982 14. Covenants, Conditions and Restrictions Bay Corporate Plaza Orange County, California dated June 15, 1982 15. Letter to Mr. Gary Jabara, Founder and Chief Executive Officer Mobilitie, Inc. entitled Chabad Jewish Center of Newport Beach, Conditional Use Permit, Appeal to the City Council of the City of Newport Beach and dated March 15, 2014 16. City of Newport Beach Application to Appeal Decision of the Planning Commission filed by Mobilitie, LLC and Mr. Gary Jabara dated February 6, 2014 17. Notice of Complete Filing dated January 9, 2014 and signed by Jason Van Patten, Planning Technician for the Community Development Department of the City of Newport Beach 18. California Environmental Quality Act and the Guidelines for the Implementation of the California Environmental Quality Act 19. City of Newport Beach Council Policy Manual Number K -3, City of Newport Beach Implementation Procedures for the California Environmental Quality Act. 20. Parking Agreement By and Between Newport Beach Golf Course, LLC and Chabad Jewish Center of Newport Beach dated March 14, 2014 21. Parking Agreement By and Between the YMCA of Orange County Newport-Mesa Family YMCA and Chabad Jewish Center of Newport Beach dated March 20, 2014 22. Agenda Report to the Planning Commission (Agenda Item #3) dated January 23, 2014 entitled "Newport Jewish Center — (PA2013 -206), 2240 University Drive — Conditional Use Permit No. UP2013 -023, including Attachments PC 1 through PC 7 23. Resolution No. 1930, "A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2013 -023 FOR AN ASSEMBLY USE AND A JOINT USE OF PARKING LOCATED AT 2240 UNIVERSITY DRIVE (PA2013- 206)" 24. Agenda Report to the City Council (Agenda Item No. 12) dated March 25, 2014 entitled "Appeal of the Planning Commission's Decision to Approve Conditional Use Permit No. UP2013 -023 for 2240 University Drive (PA2013 -206), including Attachments CC 1 through CC 9 March 24, 2014 Page 74 of 90 Attachments B -1 through B -8 Newport Jewish Center - 2240 University Drive, Newport Beach PA2013 -206 Conditional Use Permit No. UP2013 -023 Appeal to the City Council of Panning Commission Decision of January 23, 2014 March 24, 2014 Page 75 of 90 Attachment B -1 Appeal Application and Ross January 23, 2014 Letter March 24, 2014 Page 76 of 90 Attachment B -2 Back Bay University, LLC, a California limited liability company (Plaintiff) vs. Stein Holdings LLC, a California limited liability company and Newport Jewish Center (Defendants) Complaint for Declaratory Relief Superior Court of the State of California For The County of Orange, Central Justice Center (Case #30 -2014- 00703360- CU- CO -CJC) March 24, 2014 Page 77 of 90 Attachment B -3 Correspondence Entails and Letters March 24, 2014 Page 78 of 90 Attachment B -4 Planning Permit Application March 24, 2014 Page 79 of 90 Attachment B -5 Planning Commission Resolution March 24, 2014 Page 80 of 90 Attachment B -6 Parking Agreements YMCA of Orange County Newport -Mesa Family YMCA Newport Beach Golf Course March 24, 2014 Page 81 of 90 Attachment B -7 Parking Agreement Maps March 24, 2014 Page 82 of 90 Parking Agreement Facilities Logistics Map (Refer to Parking Agreements) Newport Beach Golf Course Parking \ " �Cp sa Ode Oe lot,P �3 c a C' a YMCA Parking Beach t Course ne a� y0 Ay t°s w �Or 5~ r Jewish Center -'�fe March 24, 2014 Page 83 of 90 YMCA Parking Maps 0 a° 5 4 N Back Bey Cerner a M Holy Tmuty Chw;h/ Beach, k f ShW Qa 2 �C C7 y bad /�, SdOf 9i,o ye\ Y�lI IUPWT/lrf TPwish Irvine RanWMerkl k Tim Reeves Floor Covering Je. cP tee, cP k Bey Monlesson 1� J0: V•'fi% � Y� M Holy Tmuty Chw;h/ Beach, k f ShW Qa 2 �C C7 y bad /�, SdOf 9i,o ye\ Y�lI IUPWT/lrf TPwish March 24, 2014 Page 84 of 90 Newport Beach Golf Course Parking Maps �c- �a a° O, Newport Bay Terrace Apartments P a °� Pca G�, P,S' 1 � O ^P c ,k c� Newport Beach Golf course Irvine Ave Newport Beach Vineyards & Winery Nam r yt 4 Newport Beach Golf Course —7 Parking March 24, 2014 Page 85 of 90 Attachment B -8 Professional Profile of Marshall Krupp CSA Strategies March 24, 2014 Page 86 of 90 Professional Profile MARSHALL BENNETT KRUPP Vistage International ■ CSA Stratgies ■ The Coaching Symposium 3367 Corte Levanto, Costa Mesa California 92626 Office: (714) 838 -9900 Facsimile: (714) 838 -9998 Mobile: (714) 624 -4552 Email: marshall.krupp�?a vistagechair.com www.vistageusa.com Present CEO and Key Executive Peer Private Advisory Board Chair, Coach, Mentor & Facilitator Position: VISTAGE INTERNATIONAL Authorized Partner and Everything DiSC Coach/Facilitator EVERYTHIGN DISC: A WILEY BRAND President/Chief Executive Officer COMMUNITY SYSTEMS ASSOCIATES, INC. President CSA STRATEGIES President THE COACHING SYMPOSIUM Education: University of Southern California Masters; Public Administration University of Southern California Graduate Certificate; Environmental Quality Management California State Polytechnic University - Pomona B.S.; Urban and Regional Planning Los Angeles Pierce Junior College A.A.; Architecture and Environmental Design Experience: Mr. Marshall Krupp has a 40 -year professional background in coaching and mentorship, management, strategic planning, negotiations, and administration of public governmental agencies and private business enterprises. In the public sector Mr. Krupp has offered services focused on community development, asset management, impact mitigation, public finance, public /private partnerships, organizational revitalization, redevelopment, planning, urban design, public agency strategic planning, political strategies, and implementation for cities, counties, redevelopment agencies, school districts, and community college districts. In the private sector Mr. Krupp has offered services focused on business, executive and personal coaching, strategic business planning and development, financial strategies and business plans, crises management and intervention, conflict resolution strategic and facilitation, reorganization and restricting strategies, and forensic consultation and investigations to real estate developers, business interests and organization, and investment entities. Mr. Krupp serves as Chair (facilitator and mentor) of Peer Private Advisory Boards, consisting of trusted advisors from different areas and businesses environments, and who regularly meet to work together as equals with the primary goal of addressing difficult challenges and setting their course for the future. The diversity of the groups, coupled with real dialogue, creates an environment of trust that transcends personal agendas. Private advisory board members help each other craft their own solutions, create a culture of accountability, and become better listeners and better leaders. March 24, 2014 Page 87 of 90 Mr. Krupp is a partner with Vistage International, Inc. that offers professionally facilitated peer private advisory boards that support CEOs, business owners and senior executives become better leaders, make better decisions and ultimately achieve better results. Vistage began in 1957 as The Executive Committee (TEC) and now celebrates 70,000 alumni. Today, over 18,000 successful business leaders in 15 countries are selected to participate in peer groups. There are over 600 Vistage members in Marshall's region of Orange County, California. A Peer Private Advisory Board is a group of very diverse non- competing advisors who meet in a confidential, safe haven environment, together exploring options that give the business leader greater perspective. The diversity of the group coupled with real dialog and their commitment to collaborate and grow, creates an environment of trust that transcends personal agendas. Peers work together as equals with the primary goal of meeting difficult challenges and setting their course for the future. Mr. Krupp is an authorized partner and provides DiSC® Workplace, Management and Leadership Assessments and facilitates Di.SCV Team Building trainings and workshops. DiSC® is a personal assessment tool used to improve work productivity, teamwork and communication. DiSC® is non- judgmental and helps people discuss their behavioral differences. Everything DiSC® is the leading personal assessment tool used by more than 40 million people and companies worldwide to improve work productivity, teamwork and communication. The DiSCO model provides a common language that people can use to better understand themselves and to adapt their behaviors with others. This can be within a work team, a sales relationship, a leadership position, or other relationships. DiSCV is one of the best tools for team building and gaining greater effectiveness and efficiency from leaders, to management teams, to individual employees. Mr. Krupp is President of Community Systems Associates, Inc. which is the parent company of CSA Strategies, The Coaching Symposium, and WorldSolarTec, Inc. Mr. Krupp is personally responsible for all of the consulting services and operations of the companies. Community Systems Associates, Inc and its companies are dedicated to providing public and private clients with the highest level of services to attain the mission, goals and objectives of its clients and to address problem- solving and decision- making challenges. Mr. Krupp is an expert in political strategies, public/private partnerships, and in representing his clients in sensitive and controversial topics. He is also an expert in motivational, inspiration and empowerment mentorship, coaching, and consultation to enable his clients to overcome controversial and challenging situations. Mr. Krupp is President of The Coaching Symposium and provides coaching and mentorship on a personal, inter - personal, cultural and institutional level to address challenges and issues that constrain individual, executive and organizational success. Mr. Krupp is also President/ChiefExecutive Officer of WorldSolarTec, Inc. and is personally responsible for intermediary services associated with formulating public /private partnerships between public agencies and the solar community in the implementation of cost reduction solar renewable energy projects, primarily for large scale public agencies. Greater detailed information on the Companies of Community Systems Associates, Inc can be obtained at the website listed at the end of this profile. Unique to Mr. Krupp's background and skills is his ability to create client representation teams that are capable to attain the client's objectives. He is associated with some of the most notable law firms in California involved in advocating for major public agencies and private entities, and involved in the writing and lobbying of legislation with the California Legislature. He has an intimate knowledge of the legislative process in Sacramento, and has been involved in local political relationship with school districts, community college districts, cities, counties and transit authorities. Of equal importance, Mr. Krupp brings a writing skill that is highly desired by his clients in preparing legislation, grantsmanship, and dealing with the press and news media. He also has the technical ability to establish the public record that is required by his clients to protect their administrative and legal remedies in the public sectors. These skills have enabled Mr. Krupp March 24, 2014 Page 88 of 90 to represent a broad range of public and private clients involved in business, land development and real estate, urban economics, financing, public /private partnerships, and economic development. Mr. Krupp has a unique talent for leveraging situations to attain and advocate client objectives. Currently Mr. Krupp has or continues to provide consulting services to school districts in the State of California and is recognized throughout California as one of the strongest political strategist and school mitigation negotiators in the State. In his capacity, he has negotiated over $1.5 billion in school facilities value to his clients through the structuring of public /private agreements, and has formulate financing programs that have enabled school districts to meet the enrollment demands associated with growth and educational program requirements. Over the past twenty -four years, Community Systems Associates, Inc. has formed over twenty (20) redevelopment projects for public agencies in California; have developed over twenty -five (25) economic development and business revitalization master plans; have prepared over thirty (30) development fee justification evaluations and reports; have represented public clients in negotiations of over $500 million of non - school public facilities; have represented the private development community including, but not limited to, The Edward J. DeBartolo Corporation, Homart Development Company, Chevron Land Development Company, William J. Stone & Associates, Diversified Shopping Centers, Hughes Investments, . The Home Depot, and DePalma Hotel Corporation, to name a few; have acted as advisors on such projects as Desert Fashion Plaza, Palm Springs, California; The Grove, San Diego, California; Chula Vista Shopping Center, Chula Vista, California; Indio Fashion Mall, Indio, California; and The Festival at Moreno Valley, Moreno Valley, California; and have developed and implemented numerous successful legal and political strategies on local communities throughout the State of California. Most significant to Mr. Krupp's accomplishments includes having been the consultant, advisor and strategist on the Murrieta decision which has become a Supreme Court precedent with regard to school district development impact mitigation, California Environmental Quality Act (CEQA) implementation, and growth management, and which led in part to the provisions of SB 50. Following the successful consultation and strategy in MURRIETA VALLEY UNIFIED SCHOOL DISTRICT v. COUNTY OF RIVERSIDE which became part of the triad of Mira, Hart, and Murrieta, Mr. Krupp has been sought by school districts throughout the State of California, and is aleader in California Community College and School District financing, facilities strategic planning, development impact mitigation, and public private negotiations with the private development and real estate communities. Having represented over one hundred (100) such districts in the past sixteen (16) years, Mr. Krupp has developed sophisticated computer models for use by his clients, and has provided leadership, expertise, and technical assistance in the formulation of State and local legislation relative to development impact fees, alternative capital facilities financing programs, and long -range master planning and capital improvement plans. To this end, Mr. Krupp has been highly successful in developing public /private strategies that have enabled development to proceed in a viable manner while implementing mutually acceptable impact mitigation programs supported by the community. Mr. Krupp brings a unique style and presentation that is based upon an approach of consistency, transparency, accountability, and core value enabling him to have the respect of political leaders, private business and others in the public and private sectors. His representation is known throughout California. Mr. Krupp is regularly called upon by attorneys and legal firms to provide expert technical and professional advice for litigation purposes, and has presented testimony before local and State Legislative bodies representing his public /private clients, and his professional expertise. Mr. Krupp has also provided educational seminars on relevant professional and technical matters, and has written articles for several nationally recognized periodicals and professional magazines. He is also a motivational and inspirational speaker. Mr. Krupp brings the experience of working with cities and counties, and the private development community following years of consultation in those areas. Mr. Krupp was Director of Community Development Services for Willdan Associates, responsible for the administration, coordination, March 24, 2014 Page 89 of 90 formulation, and implementation of the firm's community redevelopment and business revitalization contract services. His association with Willdan Associates resulted in the management of redevelopment programs for the Cities of Beaumont, Bellflower, Mendota, Orange Cove, Paramount, and San Jacinto; community business revitalization activities for the County of Los Angeles, and the Sacramento Housing and Redevelopment Agency; land use and development planning for the County of San Bernardino; and the administration of State and Federal programs for several contract cities. His background in such areas as assessment districts, alternative financing programs, public /private development negotiations, public relations, and city /county coordination enhances Mr. Krupp's strong community development implementation approach. Mr. Krupp's previous positions include Community Development Manager for the City of Fullerton where, among other responsibilities, he directed the planning, design and engineering of the Fullerton Transportation Center and the Central Business District Improvement Program consisting of over $60 million in public and private investment, the Orangefair Commercial Mall Redevelopment Project of over $40 million in improvements, and various other redevelopment and community development alternative site and urban design elements. In his capacity with the City of Fullerton, he was directly involved with and guided several projects, including land acquisition and Disposition and Development Agreements with such entities as American Savings and Loan Association, Bank of America, and the developers of the Orangefair Mall and Transportation Center; pre- negotiations with California State University at Fullerton, Orange County Transit District, United California Bank, and other property owners aimed at project implementation; negotiated the acquisition through eminent domain of various buildings and properties in the Central Business District and Transportation Center; and administered the City's commercial and residential loan and rebate rehabilitation programs. As Community Development and Special Projects Manager with the City of Cerritos, California, Mr. Krupp directed the preparation and development of specific plans and tenant negotiations for the $75 million Cerritos Auto Square and the Cerritos Town Regional Commercial Center. He was also influential in the preparation of the Cerritos General Plan and the development of the City's Development Code. Mr. Krupp served as Associate Planner with the firm of Wallace, McHarg, Roberts & Todd, Architects and Planners, and participated in the urban design and future development of a "town center" conceptual design plan for Irvine, California, City of Salinas redevelopment programs, and the environmental, social, physical and economic assessment of the SCRTD Rapid Transit System Corridor Study of 1974. Mr. Krupp was a participant on the City of Los Angeles Downtown General Plan Update and the City Revitalization Plan completed in the mid- 1970's. Mr. Krupp's creative, assertive, and aggressive approach to land use techniques, impact mitigation, negotiations, political strategies, community and business development implementation, public /private partnerships, public finance, and business revitalization, have proven successful and serves as evidence of his viable approach to multi - disciplinary project and development implementation. The Companies of Community Systems Associates, Inc. is a balanced structure to provide a comprehensive focus to the changing the economic and political climates, the public and private development arena, and the business world, acknowledging the complexities of the inter- relationships of public agencies, communities, and businesses. Past and Present International Council of Shopping Centers Professional Urban Land Institute Affiliations American Planning Association National Association of Housing and Redevelopment Officials National Council for Urban Economic Development California Association of Local Economic Development California Community Redevelopment Agencies Association California Business Properties Association March 24, 2014 Page 90 of 90 California Downtown Association Association of Corporate Real Estate Executives Commercial Industrial Development Association of Orange County Coalition for Adequate School Housing Internet Access Email: marshall .krupp(n,vistagechair.com Website: www.vistageusa.com Website: www.coachingsymposium.com CITY OF NEWPORT BEACH# APPLICATION TO APPEAL DECISION OF THE PLAN N;t+'V6%MklS'9I61T 52 Application No. Name of Appellant Mobilitie, LLC or personfiling: Address: 2220 University Drive, CT' 1949 - 599x57:69' Phone: Newport Beach, CA 92660 Date of Planning Commission decision: January 23 P014 Regarding application of: Newport Jewish Center for (Description of application filed with Planning Commission) Conditional Use Permit ("CUP" for a synagogue ( "Assembly" use) in an OG ( "office /general ").zone. Reasons for Appeal: t. This is the wrong zone for this use. 2. The traffic and findings requi CUP have not been satisfied. See attorney Ross let er dated 1 -23 -14 p to th' Planning Comission for more details. 2.IS- 14 – \ , — 7 – Date - - -- GLI�t FOR OFFICE USE ONLY Date Appeal filed and Administrative Fee received: Uc 20 cc: Appe:Iant Planning (furnish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.64.030 (Deposit funds with Cashier in Account #2700 -5000) Receipt #1012419.005 Recreation & Senior Services Dept. 100 Civic Center Drive Bay E Newport Beach, CA 92660 Phone: (949) 644 -3151 FAX: (949) 644 -3155 Email: recreation @newportbeachca.gov DROP -IN CUSTOMER Page 1 of 1 Receipt #1012419.005 Feb 6, 2014 12:01 PM Prepared By: jbattioli Customer ID: 1 Home phone: - -, Work phone: -- jw Payment Summary — - - -- - - — - - -- Check: $4,289.00 Check # 080048 Cash: $0 Credit Card: $0 Memo: $0 Account: $0 Gift Certificate: $0 Financial Aid: $0 Total Received: $4,289.00 Total Payments: $4,289.00 Payment Plan: $0 r-- -- -- _ Yransactions Customer Description Charge Drop -In customer CC Planning Commission Appeal $4,289.00 Action: Product Sale Home phone: -- Email: -- To: 1 Total Charges $4,289.00 Total Payments $4,289.00 Balance $0 Thank, you for your choosing Newport Beach Recreation & Senior Services. Please visit us online at www.newportbeachca.gov https: / /activenet001. active. com/ cnbreg/ servletlshowReceipt .sdi ?receiptheader -id= 104616... 02/06/2014 3c._ Corr pondemcee_ pA2013 -pot BARRY A. ROSS A. PROFESSIONAL CORPORATION 77001RVINE.CENTER ORIVE, SV17E710 IRVINE, GA 92618 January 23, 20144 City of Newport Beach Planning Commission 140 Civic Center Drive Newport Beach CA 9265$ 949427 -0977 90-727-9927 fax baxry @rossreatestato w,c www. rossreaLstatelaw. oom Re: Agenda Item No. 3 - Newport Jewish Center. - PA 2013 -206 2240 University Drive, Newport Beach, CA Conditional Use Permit No, TJP2013 -023 Honorable Chair Bradley Hillgren and Members of the Planning Commission for the City of Newport Beach: My name is Barry A; Ross. I am an attorney. I represent Mobilitie, LLC, the owner/occupant of the commercial office building at 2220 `University Drive, Newport Beach, which is within the Bay Corporate Plaza Association. My client opposes the proposed Conditional Use Permit. The Bay Corporate Plaza. Association consists of four similar two -story office buildings and an adjacent parking lot. The building at 2280 University Drive is owned by Elizabeth M. Johnson and occupied by Ann Property Management and several other commercial tenants. The next building at 2250 University Drive is vacant and has been vacant for several years: It is currently listed for sale. The next building at 2240 University Drive, is owned by Stein Holdings, LLC, This is the building that the Chabad Jewish Center C'Chabad "j wishes to occupy and use as a synagogue. The next building is the property of my client, Mobilitie, LLC. Mobilitie has been renovating the building for more than one year and just occupied the renovated building this past week. Mobilitie's business consists of telecommunications. The business has approximately 100 employees and utilizes approximately 100 parking spaces. In addition, Mobilitie's customers:and vendors conduct about 10 to 15 visits by car per day. Mobilitie's employees generally work Monday through Friday, including Friday night and Saturday. On Friday night, there are approximately 10 to 50 employees. On:Saturday, there are approximately 10 to 50 employees. No one at the City of Newport Beach asked Mobilitie about Chabad or its parking requirements. Mobilitie never consented or approved of the use of Chabad at the Bay Corporate Plaza. Association. You have in your staffreport as attachment No. PC$ a letter from Bay Corporate Plaza Association signed by Donald P. Johnson as secretary /treasurer which states in pact: January 23, 2014 Page 2 "The majority of the Association members do not -feel thatthe occasibnal.evfting Or vygekend use;6f the parking pxealyihe. Jev6sh, Center T's likely to create say overuse ox otherwise c.Atuse the Aced for specific allocation of parking among members." Mobilitie, aritetnber dthe:AMociation, Was Plaz a Association far its input regarding MAW or its. parking requirements, Fw 1404.M , obilitic wag never invited to a meeti of Bay Corporate Plaza Association to discuss this issue. ng - Theta are several reasons why die. proposed Conditional l Use Permit should be denie4 These. reasons, )are -fteossed. be.fow,. 1. THIS 19 THE WPGNG- ZONE FOP, A SYNAGOGUE, A CITURCH OR.A.MOSOUP, Theprqparty is zoaed.00 M is janed in g.e!*Qn M,20,101 of the N,ewpprt15each'MwjciPqI Code asitollow.s: is inteftdod to provide for areas. appropriAu foy, a4ka Wsttative, proLmsiond and medical office-, with limited accessory retail and service used' A rofigiousl'nstifution.does h6tAtvAth`m.the descxipfioh.of the OGZone. While a religious Institution may be permitted In an OG Zone pursuant to 'a Conditional'Use Permit, wAiph theUty -has discretion to issue;,.the City should exercise its discretion to deny the application for a Conditional Use Permit because 6:feligj ous.institution is not,approptime in.thia patticulht, 60.7ione. 2, THE PARXING AND 'TRAFFIC ISSUES HAVE NOT BEEN PROPERLY CONSIDERED BY-YOUR STAFF. Contrary to the- information inyour steffreport; Chtibad does not conduct group activitiesiust On FridaynigUt,aryd.Saturday. Tothe contrary, ChAbadhasthreereli - glous services per 44Y.. In addifiqr4 Mab&d has "Mommy and .Me. classes during the week: Although riot mentio tied in your staff report, Most Chsbad§'have, schools, The aefidol activity will 8 there it Aq 40a pxq.e tlesign*d for a.s4opl,playground, i_hm will.w. place forchUreato: play outside, other, thou in the pakngiarpa, This is a formula for disaster. While your Affreportsebms.to indicate thatparkn.g will not be aprotlew, the staff report does nottake itito racogideratiou the fact that Mobijitic's-buildingbas been vacant, for more than one year. W1ng the TenPvgflbn period, Alsoth.e.bulldin&ai.2 has been vacant-for several years; ifis currently for sale, W=22460 gollsandbewmes occupied.by commercial tenants, 3aftuar:93, 2014 Page 3 combined with the parking requirements of Mobilitie-, there will not be adequate parking for Chabad or anyone else. 3. THE PROPOSED USt WILL VIOLATE THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRIMONS • (" CC&R!V) RECORDED JULY 12,1993, sed n:3 ofthe ccak,g m is entitied Na � uces. it states inpa—t ",. not shall anydang be done thereof i Wbiehmay. jx, or may'bq come,, an: pno , , yancesmisance to.the neighborhood,. or which shall in anyway interfere -with the quiet enjoyment of :each of the -Owners ofh1s; respective Lot" Furdier � Section.11 .6 (6 ) states that the Bwrd may adoptxules for the regulation of the iol ein,playee and Owner parking valbiri the Covered Property.," This ap pears.to be a si tuation whaq the Board wwg, be required to ado.pt a rule speoifta*. allowing for the -excessive use of . parldn.g b.y Chabad Mobilffle'would object to the goard taidng any $u4 action, F rthvr' Section 1-2, i _zf the - C C&k's states that, eachowner is entitled-to share the -no4excWs ly e use of the parking.area.'1'k�ereare_ricpatiungspaeesdesignafed_to=apatttaularownet. ThiSL9V.jdng arrangemput,would be disraptedby the excessive parkiug._reqdr6m&xa (A.Chabad' 4. THE :PROPOSED' USE 13 NOT E)(EMPT FkWBNVIRONWNTAL REVIEW DUE TO THE SIGNIFICANT TRAFFIC AND PARKING IMPACTS. The trafficmi4.paT4ng.ir4pactsvmted by Chabadhave totbeen proparly analyzed. Them has been: no accurate or tompreheasiva andy*.of irafft or gaikit:g impacts. In fact, the malysts of the tr,01t AndpArking Impacts is inpompleto: and misleading: 5, THE WRONG PARTY SUBMITTED TIE APPLICATION. Chabad iBsriotthe owner ofthe 1240 University Drive,property. The owner is: Stein Holdings, LLC, wlriclr purohasedtbt property on May 29; 201 from ID Z.BDwKFisps,LLCbydocumen. nu-bar,2 .017-00001632. Therqfvre5 Chabad should not be the..;Ipp A i0ant this proposal & APX:�LIG.rQTJSIN5TLWTION.ISOENERALLY$b.])jECTT'OT HE SAW nQU=WNTS FOR ALAND VSE PERMIT'S ANYOTHERAPPLICAN1,1 TM Raimus LAND USE AND, 1N§TrrUTIONAL1ZEI7 PERSONS ACT OF 26K (RLUIPA) DOES NOT GIVE C R" AD AY V D GE: OVER N.Oi4-RBLIe10.S usms. Gospel v. Grit' qF San Laaadro ,t2tS11) 673' E.3d 105:9; Los Angeles v,. Scthag- MesroU ArMe 11on, ChrisUotz Sqhoo.7 (=Q) 188 Cal,App 4th 851; Scodish RIM CathedrcaAxsn. qfLos ?1 1 Angeles- v, City qf1 os Angeles (20(17) 156:Cal.App, 4th 168t. 7, THE FINDINGS REQUIRED FOR A CONDITIONAL USE PERB/lIT HAVE NOT BEEN SATISFIBI)i January 213, 2014- Page 4 Pursuarrt to Section 20.52.020. of Newport Beach Mumqipaj Code;: the Planning Commission must make the f.Q11owingfindings, in arder;to.appre've, a conditional use permit; :(I) Me we is con &e—vft�b 6gbagral plan 4nd. the gpp&6at& if o spgr t The use :is not oonsiptitt. with the general ,plan -in firat ft- use ls. a religious instWon v,nd the%gweralplan callsIor commercial office use. Axellgious institution or "assembly." use• ls generallylnot allowed. in, 4 courroermal office zone utless;o Con4luoixal Use Permit is, ssued. There is, .-no reasonable basis ft the issuance, of a Conditional Use Permitin t1iis case, (3.) The anticipated use-by C habad is not compatible with the -allowed uses in the vicinity; nalnelyzonimercW.rxffibe space. A_ commercial Qffice park is-=-M'tO!e for a religious institation, vy4ich- illhave ohildcarO ilitics, "Morcmy and. Me" classes, pre-school and regular school, without any In, the parking lot, Further,the iige--by Chabad will on the site. The proposed use will be detrimortalto the harmonious and orderly Wo.Wffi of the corinnerbial-center and j)Ajhv create ahazard. Io children who are attending -firoctiom at OiAPA, Fw- her, ftre will bOpmased traffic cougestioti.ond unavailability of parking spaces for riot, only Chabad, but also for the, other commercial residents of the Bay- Corporate Plaza Association. Based on.1bb fivegOing I egtiest -that the Planning C omr: qaicn derty the application for Conditional Use Permit, In the alternative; I request at the Planning Commission continue this hearing so: thai aff nia its'st . Y proyi& A consideration of the points presented in this letter. J.auuary 23, 20,14. pep 5 If yo d have any questions, I will do my best to, answer thin,. vu-y' truly yours, BAR es Get Clitnt March 24, 2014 Page 76 of 90 Attachment B -2 Back Bay University, LLC, a California limited liability company (Plaintiff) vs. Stein Holdings LLC, a California limited liability company and Newport Jewish Center (Defendants) Complaint for Declaratory Relief Superior Court of the State of California For The County of Orange, Central Justice Center (Case #30- 2014 - 00703360- CU- CO -CJC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rusin P. Tucker, LLP attorneys at Ww ELECTRONICALLY FILED Attorneys for Plaintiff BACK BAY UNIVERSITY, LLC, a California limited liability company SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BACK BAY UNIVERSITY, LLC, a California Case No. 30- 201400703380- CU- CO -CJC limited liability company, Plaintiff, COMPLAINT FOR DECLARATORY RELIEF vs. STEIN HOLDINGS, LLC, a California limited liability company; NEWPORT JEWISH CENTER; and DOES 1 -10, inclusive, Defendants. Judge Frederick P. Horn Plaintiff Back Bay University, LLC ("Plaintiff') alleges as follows: PARTIES 1. Plaintiff Back Bay University, LLC, is a limited liability company, duly organized and operating under the laws of the State of California and maintaining its principal place of business in Newport Beach, Orange County, California 2. Defendant Stein Holdings, LLC ( "Stein Holdings "), is a California limited liability company maintaining its principal place of business in Irvine, Orange County, California. 3. Defendant Newport Jewish Center ( "Newport") is a California corporation maintaining its principal place of business in Newport Beach, Orange County, California. 0341099999 -0064 -1 6649000.1 a02/07/14 COMPLAINT Superior Court of California, RUTAN & TUCKER, LLP County of Orange Milford W. Dahl, Jr. (State Bar No. 36796) 02f07 014 at 12:42:06 Phi mdahl @rutan.com Clerk of the Superior Court Bradley Chapin (State Bar No. 232885) By 6eancr SutMer,Ceputy Clerk bchapin @rutan.com 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 -1931 Telephone: 714- 641 -5100 Facsimile: 714 -546 -9035 Attorneys for Plaintiff BACK BAY UNIVERSITY, LLC, a California limited liability company SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BACK BAY UNIVERSITY, LLC, a California Case No. 30- 201400703380- CU- CO -CJC limited liability company, Plaintiff, COMPLAINT FOR DECLARATORY RELIEF vs. STEIN HOLDINGS, LLC, a California limited liability company; NEWPORT JEWISH CENTER; and DOES 1 -10, inclusive, Defendants. Judge Frederick P. Horn Plaintiff Back Bay University, LLC ("Plaintiff') alleges as follows: PARTIES 1. Plaintiff Back Bay University, LLC, is a limited liability company, duly organized and operating under the laws of the State of California and maintaining its principal place of business in Newport Beach, Orange County, California 2. Defendant Stein Holdings, LLC ( "Stein Holdings "), is a California limited liability company maintaining its principal place of business in Irvine, Orange County, California. 3. Defendant Newport Jewish Center ( "Newport") is a California corporation maintaining its principal place of business in Newport Beach, Orange County, California. 0341099999 -0064 -1 6649000.1 a02/07/14 COMPLAINT 1 4. The true names or capacities, whether individual, corporate, associate, or otherwise 2 of defendant Does 1 through 10, inclusive, are unknown to Plaintiff who therefore sues said 3 defendants by such fictitious names. 4 5. At all times herein mentioned, each of the defendants was the agent and employee 5 of each of the remaining defendants and was acting in the course of scope of said agency and 6 employment, or may be affected by any rulings this court may make on the subject matter 7 contained herein. 8 6. Plaintiff owns a building located at 2240 University Drive, Newport Beach, 9 California. 10 7. Defendant Stern. Holdings owns a building located at 2220 University Drive, 11 Newport Beach, California ( "Subject Property "). 12 8. The buildings at 2220 and 2240 are located within a common interest development 13 named Bay Corporate Plaza consisting of four similar two -story office buildings and an adjacent 14 parking lot and are subject to that certain Declaration of Covenants, Conditions and Restrictions 15 ( "CC &Rs ") for Bay Corporate Plaza, Orange County, California, which were recorded in the 16 Orange County Recorder's office on or about July 12, 1983. A true and correct copy of the 17 CC &Rs is attached hereto as Exhibit 1 and incorporated herein by reference as though set forth in 18 full. 19 9. Plaintiff is informed and believes and based thereon alleges that defendant Stein 20 Holdings has agreed to sell, and defendant Newport has agreed to purchase the Subject Property. 21 10. An actual controversy has arisen and now exists between Plaintiff and defendants, 22 and each of them, concerning the respective rights, duties and obligations pursuant to and under 23 the CC &Rs (Exhibit 1 hereto) and the intended use of the Subject Property by defendants as 24 follows: 25 a. Plaintiff contends the property is zoned OG ( "Office/General ") as defined in 26 section 20.20. 101 of the Newport Municipal Code and that defendants Chabad and Newport's 27 intended use does not fit within the description as Newport is a religious institution intending to 28 use the Subject Property for other than the uses set forth in the Newport Beach Municipal Code. Rutan & Tucker, LLP attorneys at /aw 0341099999 -0084 2 6649000.1 a04106114 COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Plaintiff is informed and believes and based thereon alleges that defendants' intend to use of this property upon sale including to conduct group activities which will involve, but not be limited to, children and extra vehicles on and around the premises creating parking and traffic issues and will violate the CC &Rs in several respects, including section 11.3 entitled "Nuisances," which states in part: . nor shall anything be done thereon which may be, or may become, an annoyance, nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Owners of his respective Lot... . C. The design, location, size, and operating characteristics of the use intended by defendants Chabad and Newport and incompatible with the allowed and existing uses in Bay Corporate Plaza and the vicinity, namely commercial office space. d. The proposed use will also be in direct violation of Section 11.6, which requires the Board to adopt a rule specifically allowing for excessive use of parking by defendants and no such rule has been adopted. e. The proposed use may compromise safety and security of the development and potentially result in diminishing the property value, including Plaintiffs building. f The proposed use may result in the imposition of excess common area fees to Plaintiff. g. Plaintiff is informed and believes and based thereon alleges that there are other and additional disputes, controversy and contentions pursuant to the CC &Rs, the frill nature and extent of which will be set forth at the time of trial following appropriate discovery conducted in this case. 11. Defendants, and each of them, deny each and all of Plaintiff's contentions as set forth at paragraph 11. 12. Plaintiff desires a judicial determination of the rights and duties of the parties hereto with respect to the use of the Subject Property under the CC &Rs (Exhibit 1 hereto). 1 /// 1 /// Rutan & Tucker, LLP attorneys at law -3- 034/00&4 6649000.1 00.1 aO e02/06/14 COMPLAINT n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, as follows: 1. For a declaration of the rights and liabilities of the parties in accordance with the CC &Rs as to the intended use by defendants, and each of them, of the Subject Property; 2. For reasonable attorneys' fees incurred herein; 3. For costs of suit; 4. For such other and further relief as the court deems just and proper. Dated: February _Z, 2014 RUTAN & TUCKER, LLP MILFORD W.DAHL,JR. BRADLEY CHAPIN By: m —tu -(Q00 L, Mil ord WpDahl, Jr. ' Attorneys for Plaintiff BACK BAY UNIVERSITY, LLC, a California limited liability company Rutan & Tucker, LLP - attorneys at law - -4- 034/099999-0184 6649000.1 02 106114 - COMPLAINT March 24„2014 Page 77 of 90 Attachment B -3 Correspondence Emails and Letters Marshall Krupp From: Marshall Krupp <marshall .Krupp @vistagechair.com> Sent: Wednesday, March 19, 2014 8:22 AM To: Marshall Krupp Subject: FW: Proposed Use From: Meehan, William [mailto:wmeehan(alrutan.com] Sent: Monday, December 16, 2013 10:37 AM To: Russell Stein; 'Gary Jabara' Cc: don@anzamanagement.com: Liana Almazan; 'Rabbi Mintz'; 'carol(nlgovsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use Mr. Stein, Thank you for your message. This firm will be sending you today a letter further detailing our client's position. Going forward, please send all correspondence regarding this matter to the undersigned (or, in the event you have engaged counsel, please so advise and so direct your counsel). William F. Meehan Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 714 -641 -3417 Direct 714 -546 -9035 Fax wmeehan0rutan.com www.rutan.com Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (16 USC §§ 2510- 2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of (i) avoiding penalties that may be imposed under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax - related matter addressed herein. From: Russell Stein [ mailto :russell(&steinholdings.com] Sent: Monday, December 16, 2013 10:34 AM To: 'Gary Jabara' Cc: don(cbanzamanagement.com; Meehan, William; Liana Almazan; 'Rabbi Mintz'; 'carol@govsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use In response to your email below, myself and the new owner would like to meet with you for just a few minutes to clarify some information regarding their use. I am confident that you will see that their use will not pose any afterhours security risk nor cause excessive common area wear. Please let us know your availability for a short meeting at your office. Thanks Russell From: Gary Jabara [mailto:aary @mobilitie.com] Sent: Friday, December 13, 2013 12:07 PM To: Russell Stein Cc: don@anzamanagement.com Meehan, William; Liana Almazan Subject: Proposed Use Mr. Stein, I am the owner of the 2220 building. Thank you for reaching out to Liana. She does a terrific job managing our entire portfolio of owned assets. Regarding the proposed use, we are not in support of such use. We are confident it will interfere with future use, and be a degradation to the safety and security of the complex in general. Additionally we believe the longterm effects will diminish property values, may pose an afterhours security risk and cause excessive common area fees. I've copied our counsel at Rutan to ensure we send you and the City of Newport Beach an official notice that we are in no way supportive of the proposed use. We will conduct our own due diligence of the CC &R's, as I believe it may not be in compliance. If you have any questions please reach out to me directly, and thank you for your understanding. Gary Jabara Garylabara Founder & CEO Mobilitie, LLC 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 949 999 -4545 office 949 636 -0544 mobile www.mobilitie.com Marshall Krupp From: Rabbi Mintz <rabbi @jewishnewport.com> Sent: Tuesday, March 18, 2014 7:48 PM To: marshall.krupp @vistagechair.com Cc: Philip Levy Subject: number 2 Attachments: Letter Russell Stein re_ Objection to Proposed Use at 2240 University Drive. PDF From: Russell Stein [ mailto :russell(alsteinholdings.coml Sent: Wednesday, December 18, 2013 7:54 AM To: 'carol@govsol.com'; 'Rabbi Mintz' Subject: FW: 2240 University Drive Please see the attached letter that I received late yesterday. I will call you a little before 9am this morning to discuss. The letter appears to lack substance and is factually incorrect. Russell From: McLean, Amber [mailto:amclean(drutan.com] Sent: Tuesday, December 17, 2013 5:04 PM To: Russell Stein Cc: Meehan, William Subject: 2240 University Drive Mr. Stein, On behalf of Bill Meehan attached please find correspondence regarding the Proposed Use at 2240 University Drive. Please contact Bill at 714- 641 -3417 or wmeehan@rutan.com if you have any questions regarding the enclosed. Thank you, Amber McLean Legal Secretary Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 714 - 641 -5100 x1285 714 - 546 -9035 Fax amdean(a)rutan.com www.rutan.com Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510- 2521), (b) may contain confidential and /or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of (i) avoiding penalties that may be imposed under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax - related matter addressed herein. Marshall Krupp From: Rabbi Mintz <rabbi @jewishnewport.com> Sent: Tuesday, March 18, 2014 7:50 PM To: marshall.krupp @vistagechair.com Cc: Philip Levy Subject: number 3 From: Carol McDermott [mailto:carol(aciovsol.coml Sent: Friday, December 20, 2013 5:49 AM To: 'Meehan, William'; 'Russell Stein'; 'Gary ]abara' Cc: don(alanzamanagement.com; 'Liana Almazan'; 'Rabbi Mintz'; 'David Stein (Stein Holdings)' Subject: RE: Proposed Use Mr. Meehan: I am a planning and land use entitlement consultant and represent the Jewish Center. am working with Russell Stein and Rabbi Mintz with regard to the entitlement of the Jewish Center through the City of Newport Beach. We have worked very diligently to ensure that our proposed use will be compatible with the existing office uses. In fact much of our use of our building at 2240 is office use. We have calculated our parking needs and are confident that we will not in any way adversely affect your client. We wish to request a meeting with you and your client to discuss the particulars of our application and parking calculations. While my office will be closed after next Monday for the next two weeks, is there any chance we might meet on December 23rd or on January 9th? Please advise. cmmc Carol Mentor McDermott, AICP Consultant Government Solutions, Inc. (949) 717-7939, office (949) 422 -2303, cell carologovsol.com From: Meehan, William [mailto:wmeehan(a)rutan.coml Sent: Monday, December 16, 2013 10:37 AM To: Russell Stein; 'Gary ]abara' Cc: don(aanzamanagement.com: Liana Almazan;'Rabbi Mintz'; 'carolOciovsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use Mr. Stein, Thank you for your message. This firm will be sending you today a letter further detailing our client's position. Going forward, please send all correspondence regarding this matter to the undersigned (or, in the event you have engaged counsel, please so advise and so direct your counsel). William F. Meehan Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 714 -641 -3417 Direct 714 - 546 -9035 Fax wmeehanO,rutan.com www.rutan.com Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic bommunications Privacy Act (18 USC §§ 2510- 2521), (b) may contain confidential and /or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of (i) avoiding penalties that may be imposed under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax - related matter addressed herein. From: Russell Stein fmailto :russell(obsteinholding-s.com] Sent: Monday, December 16, 2013 10:34 AM To: 'Gary Jabara' Cc: donC&anzamanagement.com; Meehan, William; Liana Almazan; 'Rabbi Mintz'; 'caroI(&govsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use In response to your email below, myself and the new owner would like to meet with you forjust a few minutes to clarify some information regarding their use. I am confident that you will see that their use will not pose any afterhours security risk nor cause excessive common area wear. Please let us know your availability for a short meeting at your office. Thanks Russell From: Gary Jabara [mailtomarv0mobilitie.coml Sent: Friday, December 13, 2013 12:07 PM To: Russell Stein Cc: don(ulanzamanagement.com; Meehan, William; Liana Almazan Subject: Proposed Use Mr. Stein, I am the owner of the 2220 building. Thank you for reaching out to Liana. She does a terrific job managing our entire portfolio of owned assets. Regarding the proposed use, we are not in support of such use. We are confident it will interfere with future use, and be a degradation to the safety and security of the complex in general. Additionally we believe the longterm effects will diminish property values, may pose an afterhours security risk and cause excessive common area fees. I've copied our counsel at Rutan to ensure we send you and the City of Newport Beach an official notice that we are in no way supportive of the proposed use. We will conduct our own due diligence of the CC &R's, as I believe it may not be in compliance. If you have any questions please reach out to me directly, and thank you for your understanding. Gary Jabara Gary Jabara Founder & CEO Mobilitie, LLC 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 949 999 -4545 office 949 636 -0544 mobile www.mobilitie.com This email is free from viruses and malware because avast! Antivirus protection is active. Marshall Krupp From: Rabbi Mintz <rabbi @jewishnewport.com> Sent: Tuesday, March 18, 2014 7:52 PM To: marshall.krupp @vistagechair.com Cc: Philip Levy Subject: number 4 From: Carol McDermott [mailto:carol(algovsol.com] Sent: Friday, December 20, 2013 6:02 AM To: 'Meehan, William' Subject: RE: Proposed Use Bill: you might check my references with other members of your firm including Jeff Oderman, Ski Harrison, Jeff Goldfarb, Phil Kohn, Joel Kuperberg and Patrick Munoz.. I have worked in Newport Beach for many years and always strive to achieve the best results for my clients. I am known for insuring that the proposed uses are acceptable to the city, meeting the requirements of the city codes as well as addressing the concerns of surrounding property owners. While I am certainly not an attorney, nor has the Jewish Center been able to retain legal counsel, we are hopeful you will encourage your client to meet with us. Sincerely, Carol Carol Mentor McDermott, AICP (formerly Hoffman) Consultant Government Solutions, Inc. (949) 717 -7939, office (949) 422 -2303, cell carologovsol.com From: Meehan, William [mailto:wmeehan @ rutan.com] Sent: Monday, December 16, 2013 10:37 AM To: Russell Stein; 'Gary Jabara' Cc: don(abanzamanagement.com; Liana Almazan; 'Rabbi Mintz'; 'carolCulgovsoLoom'; David Stein (Stein Holdings) Subject: RE: Proposed Use Mr. Stein, Thank you for your message. This firm will be sending you today a letter further detailing our client's position. Going forward, please send all correspondence regarding this matter to the undersigned (or, in the event you have engaged counsel, please so advise and so direct your counsel). William F. Meehan Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626. 714841 -3417 Direct 714 -546 -9035 Fax wmeehan0rutan.com www.rutEin.com Privileged And, Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510- 2521), (b) may contain confidential and /or legally privileged information, and (c) are forth a sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of (1) avoiding penalties that may be imposed under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax - related matter addressed herein. From: Russell Stein [ mailto :russellCalsteinholdings.com] Sent: Monday, December 16, 2013 10:34 AM To: 'Gary Jabara' Cc: don(cbanzamanagement.com; Meehan, William; Liana Almazan; 'Rabbi Mintz'; 'carolta)govsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use In response to your email below, myself and the new owner would like to meet with you for just a few minutes to clarify some information regarding their use. I am confident that you will see that their use will not pose any afterhours security risk nor cause excessive common area wear. Please let us know your availability for a short meeting at your office. Thanks Russell From: Gary Jabara [mailto:gary@mobilitie.com] Sent: Friday, December 13, 2013 12:07 PM To: Russell Stein Cc: don(aanzamanagement.com; Meehan, William; Liana Almazan Subject: Proposed Use Mr. Stein, I am the owner of the 2220 building. Thank you for reaching out to Liana. She does a terrific job managing our entire portfolio of owned assets. Regarding the proposed use, we are not in support of such use. We are confident it will interfere with future use, and be a degradation to the safety and security of the complex in general. Additionally we believe the longterm effects will diminish property values, may pose an afterhours security risk and cause excessive common area fees. I've copied our counsel at Rutan to ensure we send you and the City of Newport Beach an official notice that we are in no way supportive of the proposed use. We will conduct our own due diligence of the CC &R's, as I believe it may not be in compliance. If you have any questions please reach out to me directly, and thank you for your understanding. Gary Jabara Gary Jabara Founder & CEO Mobllitie, LLC 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 949 999 -4545 office 949 636 -0544 mobile www.mobilitle.com This email is free from viruses and malware because avast! Antivirus protection is active. Marshall Krupp From: Rabbi Mintz <rabbi @jewishnewport.com> Sent: Tuesday, March 18, 2014 7:53 PM To: marshall.krupp @vistagechair.com Cc: Philip Levy Subject: number 5 Importance: High From: Carol McDermott [maIto:carol(algovsol.com] Sent: Friday, January 10, 2014 4:43 PM To: 'Meehan, William' Cc: 'Rabbi Mintz'; 'David Stein (Stein Holdings)' Subject: RE: Proposed Use Importance: High Dear Mr. Meehan: as the representative of Chabad, I continue to offer to meet with you and /or your client to discuss the particulars of our proposed use. We have worked closely with the City Planning Staff to protect everyone's property values and since my client does not have an attorney, it is left to me to reach out to you. I have worked with many of your colleagues at Rutan and know of your longstanding relationship with the City of Newport Beach. I also know we have a mutual desire to insure the best interests of our respective clients and I know we can address the expressed concerns. Please ask your client to meet with us as we have a very benign use, very compatible with the office park. Sincerely, Carol McDermott Carol Mentor McDermott, AICP Consultant Government Solutions, Inc. (949) 717 -7939, Office (949) 422 -2303, cell carologovsol.com From: Meehan, William [mailto:wmeehan(alrutan.coml Sent: Monday, December 16, 2013 10:37 AM To: Russell Stein; 'Gary Jabara' Cc: don(alanzamanagement.com; Liana Almazan; 'Rabbi Mintz'; 'carolftovsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use Mr. Stein, Thank you for your message. This firm will be sending you today a letter further detailing our client's position. Going forward, please send all correspondence regarding this matter to the undersigned (or, in the event you have engaged counsel, please so advise and so direct your counsel). William F. Meehan Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 714-641 -3417 Direct 714 - 546 -9035 Fax wmeehan@rutan.com w .rutan.com Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510- 2521), (b) may contain confidential and /or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. IRS Circular 230 Notice: Pursuant to the Internal Revenue Service requirements we inform you that, unless specifically indicated otherwise, any tax advice contained in this e-mail, including any attachments, is not intended or written to be used, and cannot be used, by the recipient or any other person for the purpose of (1) avoiding penalties that may be imposed under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax - related matter addressed herein. From: Russell Stein [ mailto :russell(cbsteinholdinas.com1 Sent: Monday, December 16, 2013 10:34 AM To: 'Gary Jabara' Cc: don0anzamanagement.com; Meehan, William; Liana Almazan; 'Rabbi Mintz'; 'carol(5)govsol.com'; David Stein (Stein Holdings) Subject: RE: Proposed Use In response to your email below, myself and the new owner would like to meet with you forjust a few minutes to clarify some information regarding their use. I am confident that you will see that their use will not pose any afterhours security risk nor cause excessive common area wear. Please let us know your availability for a short meeting at your office. Thanks Russell From: Gary Jabara [mallto:oarv(@mobilitie.coml Sent: Friday, December 13, 2013 12:07 PM To: Russell Stein Cc: don(5ianzamanagement.com; Meehan, William; Liana Almazan Subject: Proposed Use Mr. Stein, I am the owner of the 2220 building. Thank you for reaching out to Liana. She does a terrific job managing our entire portfolio of owned assets. Regarding the proposed use, we are not in support of such use. We are confident it will interfere with future use, and be a degradation to the safety and security of the complex in general. Additionally we believe the longterm effects will diminish property values, may pose an afterhours security risk and cause excessive common area fees. I've copied our counsel at Rutan to ensure we send you and the City of Newport Beach an official notice that we are in no way supportive of the proposed use. We will conduct our own due diligence of the CC &R's, as I believe it may not be in compliance. If you have any questions please reach out to me directly, and thank you for your understanding. Gary Jabara Gary Jabara Founder & CEO Mobilitie, LLC 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 949 999 -4545 office 949 636 -0544 mobile www.mobilitie.com This email is free from viruses and malware because avast! Antivirus protection is active. Marshall Krupp From: Rabbi Mintz <rabbi @jewishnewport.com> Sent: Tuesday, March 18, 2014 7:59 PM To: marshall.krupp @vistagechair.com Cc: Philip Levy Subject: number 6 From: Carol McDermott [mailto:carol @govsol.coml Sent: Wednesday, January 15, 2014 3:15 PM To: 'Gary Jabara' Cc: Rabbi Reuven Mintz Subject: RE: Proposed Use Mr. Jabara: I understand you are the new owner of the office building adjacent to the proposed Chabad Jewish Center. We continue to offer to meet with you to fully describe our proposal to demonstrate that the use will be compatible with the office park. You have also probably received a notice of the Planning Commission public hearing on January 23, 2014 at 6:00 pm at the Newport Beach Civic Center, City Council Chambers. Please let us know if you would like a briefing of the project prior to that public hearing. Sincerely, Carol McDermott, Consultant to Chabad Carol Mentor McDermott, AICP Consultant Government Solutions, Inc. (949) 717 -7939, office (949) 422-2303, cell carologovsol.com This email is free from viruses and malware because avast! Antivirus protection is active. Marshall Krupp From: Rabbi Mintz <rabbi@jewishnewport.com> Sent: Tuesday, March 18, 2014 8:01 PM To: marshall .krupp @vistagechair.com' Cc: Philip Levy Subject: number 7 From: Barry A. Ross [mailto:rossbarrv(&aol.com] Sent: Wednesday, January 29, 2014 12:13 PM To: 'Rabbi Mintz' Cc: oaryColmobilitie.com Subject: RE: 2220 University Drive Dear Rabbi Mintz: Thank you for your thoughtful note. I will forward your request to my client. Barry A. Ross, Esq. Barry A. Ross, a Professional Corporation 7700 Irvine Center Drive, Suite 710 Irvine, CA 92618 (949) 727-0977; Fax (949) 727 -9927 Email: barrv@rossrealestatelaw.com From: Rabbi Mintz [ mailto :rabbic&iewishnewport.com] Sent: Tuesday, January 28, 2014 5:45 PM To: rossbarryCabaol.com Subject: 2220 University Drive Dear Mr. Ross, It was very nice meeting you at the Planning Commission hearing. As you know, I offered to meet with your client before the hearing, I hope that we can now meet with you and your client so we can address any of your concerns. We look forward to being good neighbors to each other. Thank you. Reuven Rabbi Reuven Mintz I Chabad Jewish Center 2240 University Drive j Newport Beach, CA 92660 949.721.9800 ex101 I www.JewishNewport.com RUTAN RUTAN 6 TUCKER, LLP December 17, 2013 VIA E -MAIL Russell Stein Stein Holdings Re: Objection to Proposed Use at 2240 University Drive Dear Mr. Stein: William F. Meehan Direct Dial: (714) 641 -3417 E -mail: wmeehm@rutan.com rutan.com Please be advised that this firm and the undersigned are counsel to the owner of 2220 University Drive, Newport Beach, California 92660 (the "2220 Owner "). We are Writing to address the proposed use of your property located at 2240 University Drive by the prospective purchaser to whom you are selling your property. As explained below, the 2220 Owner objects to the proposed use, in particular to the anticipated use of after -hours parking, which use will require the use and allocation of approximately 26 parking spaces. It is our understanding that the City of Newport Beach has asked for some acknowledgement by the Bay Corporate Plaza Association that the Association is aware of, and consents to, the anticipated use of the property during evenings and weekends. To satisfy the City of Newport Beach you have requested that the Association members, including the 2220 Owner, approve the following content of a proposed letter from the Association to the City: "On behalf of the Bay Corporate Plaza Association of building owners, which includes the building to be occupied by the Jewish Center at 2240 University Drive, we acknowledge that the Jewish Center may utilize the existing parking lot in accordance With Association CC &Rs Section -12.1 for evening and weekend activities." As one of the building owners making up the Bay Corporate Plaza Association, the 2220 Owner does not consent to the proposed letter. The 2220 Owner objects to the use of 2240 University Drive for any recurring or regular evening or weekend activities that would require the allotment of more than the regular and customary use of parking spaces. Among other things, the proposed use appears to be in direct violation of Section 11.3 — Nuisances of the CC &Rs for Bay Corporate Plaza. In relevant part Section 11.3 provides that: "...nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, or which shall in any way interfere With the quiet enjoyment of each of the Owners of his respective Lot ..." Furthermore, Section 11.6 — Vehicles, subsection (e) provides that the "The Board may adopt rules for the regulation of the admission and parking of vehicles 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626 PO Box 1950, Costa Mesa, CA 92628 -1950 1 714.641.5100 1 Fax 714.546.9035 21631025318 -0001 Orange County I Palo Alto I www.rutan.com 6489643.1 a] 2/17/13 RUTAN RUTAN 6 TUCKER. LLP Russell Stein December 17, 2013 Page 2 including, without limitation, commercial vehicles and employee and Owner parking within the Covered Property ..." This appears to be a situation in which the Board would be required to adopt a rule specifically allowing for the excessive use of parking for evening and weekend use. The 2220 Owner would object to the Board taking any such action to approve the requested use. As the owner of one of the buildings in the Bay Corporate Plaza, the 2220 Owner is concerned that the anticipated use of the property for evening and weekend activities attracting large groups of individuals would serve to interfere with potential future use by prospective new tenants within the 2220 University Drive building. The 2220 Owner has additional concerns that the proposed night and weekend use of the premises could compromise the safety and security of the complex in general, and could potentially result in diminished property values, pose an after - hour security risk and/or result in the imposition of excess common area fees. If you or any of your representatives wish to discuss the 2220 Owner's objections to the proposed use, please do not hesitate to contact me. In no event should you or anyone else represent to the City of Newport Beach that the 2220 Owner or the Association as a whole has acknowledged and consented to the proposed use of 2240 University Drive by your prospective purchaser. Sincerely, R &TUCKER LLP illiam F. Meehan WFM/BC:ds cc: City of Newport Beach 2163/025318 -0001 6489643.1 a12/17/13 3c-Corre-S,ponde*j0-_ pA,20113 -2% - BARRY A. ROSS A PROFESSIONAL CORPORATION 7700 IRVINE CENTER DRIVE, SQfTE710 IRVINE, CA 92616 January 23, 2014 City of Newport Beach Planning Commission 100 Civic Center Drive Newport .Beach, CA 92658 049-7¢7,9927 tax barty@rowrealestateiaw,cam tVwmmssroafes belmoom Re: Agenda Item No. 3 - Newport Jewish Center - PA 2013-206 224 1 0 tiniv, ereity Drive, Newport Beach,. CA Conditional Use No, UP2013-023, Honorable Chair Bradley Hillgren and Members of the Planning Commission for the City of Newport Beach:, My name is Barry A. Ross.. lamanattorney: frepr.esentN4obilitie LLC, the owner /occupant of the commercial (;iTice, building at 2220 University Drive, Newport-Beach, which is within, the Bay Corporate Plaza Association. My client opposes the proposed Conditional Use Permit. The Bay Corporate Plaza Association consists of four similar two-story office buildings and an adjacent parking. lo#. The building at 22$9 University Drive is owned, by Elizabeth M. Johnson and occupied by Anza Property Managementand several other commercial. tenants. The next building �at 22 Univ rsityl) , . 610. , e . Drive is vacant and has been vacant - for several years.. It iscurrently listed for sale. The next building at 2240. University Drive, is. owned by Stein Holdings, LLC. This is the building that the Chabad Jewish .Center .CChaba& wishes to occupy and use as a syjiag<)gue. The nexchuilding is:the property of my client, Mobilitie, LLC. Mobilitie.has been ,renovating.the, building borinore than one year and just occupied the renovated building this pas week.. Mobilitie's business consists of telecommunications. The business has approximately lo,o employees and utfli,z,es:approxinWely:IpO parking spaces. In addition, Mobilities customers and vendors conduct about 10 to 15 visits by car perday. Mobilitie's employees generally work Mooday -through Friday, including Friday night and Saturday, On Friday night, there,are approximately 10 to 50 employees. On Satuiday, there are approximately 10 to 50 employees. No one at the City of Newport Beach asked Mobilitie about Chabad or its parking requirements. Mobilitie never consented or approved of the use of Chabad at the Bay Corporate Plaza Association: You have in your staff report at attachment No. PC5 aletter from Bay Corporate Plaza Association signed by Donald P. Johnson as secretary/freasurer which states impart: January 231, 2014 Page 2 "The majority of the Association members do not f6el thatthe oecasional ev enirig or weekend use:of the parking axeaby the Jo"sh-CenVr.18 likely tocrQatoauy overuse Or otherwise 04J ae the need for sperifir, allocation ofp-arking among members." Mobilide, a meinber of the :Aasociation, was never asked .by Bay. Corporate Plan Association, for its input regarding Chobod tat its, parking rvqi4itpuae4.ts. ftiher,.Motiiritiewas never invited toa mectlig o0ay Corporate Plaza Association to discuss this issue. There are.severdl reasons why t I be.proposed CondiOonal.TjAe Permit should be denied. These. reasons. are discussed, below. 1. THIS IS THE WRONG ZONE FOIL A SYNAGOGUE, A 011ORCH ORAMOSOUB. The in prQperty is zoned 00 ("Offiqe/General'j. This �s delhied' Section 20 20,101 tithe Newport Beach Municipal Cc& a&follows: "The OD ZWng, bistfiat is inteiided to pro-vide for areas qppropoft tot adinfitiatthtive; professland and rnediqal offices with limitedaccepsory-retail and service us . I A religious institution.does not fit vhtl'n. the descriptibfi.of the Ga Zone. While, be pemittcdjn an 00 Zone pursuant to a Conditional Use Perinit, which the City-has discredon to issuej, the -City should exercise its discretion todeny the application for a Conditional UsePermlit because axeligious.insfitution is nut appropriateinthis: 2, TIM PARICING ANDjTRAFFIC ISSUES HAVE NOT BEEN PROPERLY CONSIDERED BYTOUR STAFF. Contrary the in(forraWon in y= staff report; Chabad does not conduct group, acflyjf1csjpst on. addiflon, Chabad has "MQmmy and,Me classes during the week. Although tiotmenti6nedin your .8taff apottmost Chabads1ave schools, The school activity will involve:obildren, and more vehicles l on And around the premises, $Micethereisnoarep thorewillno. place for chit dmto play o t dq 1 u si � othe vthau ij: the ng This is a formula for disaster. pak area While your staff reportseemg-to indicate that .parking will not be 49TObletT4 the staff jepqr(does not take into Ponsidexation the fact that Mohijitles,building has been vacant for more thmi-one year duelngtheren9vatibn period, Also, the bdding:at.2260 has been-vacant for.severalyears; it:iscurrently for sa.k. Viten, 22450 6DII& and-becomes occupied by commercial tenants, Page 3 combined with the puking requirements of Mobilitier, there will not be adequate parking for Chabad or anyone else. 3. THE PROP08M)USt WILL VIOLATE THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (5CC&R!s?') RECORDED JULY 12,1983. Seddoh 11;3 of the C.C&Wk is.endfied Nuisances. it states in part ",.. not shall anything be done thmcmvibnhni4ybei.ormgry'becom sm:anao -nvighborhood,:or .yance, nuisame to the, Which shall in my way mte;fwawith the quiet.enj oyment of each of the Owners othis respective Lot," Fu#er, Section. 1.1,6(6)statet that the Board mayadopt.ralos for the regulation of the admiAsion. and &parian.g.-o.fvdhiclo, inolUding,-without limiiatic4, commercial vehicles, and 'Ployee and Ownerparking withir� tho Covered,hopqrty.3 'This appears. to be a situation where the -booqquired to adopt-a.r-de specifibally:Allowifig fbi. the excessive use of .p.arkiggby:,Phsba& Mobilifie'would object to the Board laking. any such Wtiml. rurffier, Section 12A r W entitled -to to share: the nonexclusive use of- the. parkingaroa. Thue are no padang sp.aces, desiPated tma.particular owner. This parking arrangement would bo disrupted - by the excessive parking. requirements of Chabad, 4. THE PROPOSED -USE IS NOT EXEMPT FROMBNVIRONMENTAL REVIEW DUE TO Ti4t SIGNIFICANT TRAP= AND PAUWG IMPACTS. The trafflQ,8nd.pglcing:ii4pacts= ite(f by Chdbadh&ve not.. been properly analysed. There lists been. no accurate- or comprehensive analyAls .of traffic. or parking impacts.. In fact; the onslys' is of the uaZo twd parkin ftpWr, is. incomplete and misleading. 5. THB WR ZNG PARTY SUBMITTED TIM APPLICATION.. C6badls:nct: the ownetuf tlie,1240 University Dxiyq propetly. The owner is Stein Holdings, LUC, Which p umbo.sed the property on May. 29, 20,12 from JDC Enterprises, LLC by: document. no' ber.2017 0.3 In Jan.vkh ,m .1-0003 -6324 Tbepefke� Cha�ad should not be..tha.�pplicantf connect this proppsaJ. 6, A kBLI(XM8L ITS IS GENERALLY gQ13JECT .TO THE SAME REWIREWNTS FOR ALAND USE PERMIT AS ANY OTHER APPLICANT, THE RELIGIOUS LAND USE AND' INSTITUTIONALIZED PERSONS ACT OF 2000 (PIMPA) DOES NOT GIVE CHAB AD AN EWE. OVER NON-RELI GIOU S U,9ERS, F;q zxsq"a. Gospel Y, C ity ofBan L eardro, (201.1) 6'33 F.3d 105191, Los Angeles v.. Sq ag.-Mesro b Arviezzlon C% riAlanSjqho o7 GOOD) .188 CaLAp-p 4fif 95. L; Scofth Rite edthedealAssh. oflov Angties % City of Los Angeles- (2007) IS6 CaLADp- 4th 168. 7. THE FINDINOS RVOUIRED FOR A CONDITIONAL USE PERMIT HAVE NOT 13PBN SATISFIBIDd January 23, 2014 Page 4 I . Puftarit to Seption 203-2.02G. of the Now Beach MuWpipal Code, the Planning Coxmiussion Newport Be must male the Nlowing findings in. orderto. approve a conditional use permit: (j) The use is consistent with .the. general plan and the -a-0piteable specific =1 The we :is not consipwit. vdth: the general.plan, in that the use is, a.r.eligious and the geparaf. plan mlls.forcommet dal offloe we. A -raliZious institution or use is gerierallymot allowed. in. a cQn-uxiercial office zone lWesaa-Condilional Use Permit is issued, There is me reasonable, basis for the issuance ofa Conditional Use Permit In this casD. M The anticipated use by Chabad is not compatible with the alldwed uses in the vielnityi space. A:coni tverciol Offlo.0 park isvaurt4ble. for wr6ligious. institution, which.vyill have childcare facilities, "Monuriy- and. Me" classes, pre= school and r gularschool, ,Aithout aq yard or open space for chfl&n W,.glqy other than In the. parking lot. Further, the me by Chabad mill result Inparking and traffic, congestion on the site, Qpgration&Lfthe use at: tile. location proposed woultnothe; detrimental to the: The proposed.we will be detrimental to the honnouidus and ard erly _Sr6wth of the commerbial-c6met, and n4hir-cretit ahazard to,. children who are attending ftiotiots at Chaba ]Further; there will be� inowased.tpffic co.ngestion and unavailability of parking spaces far not only Chabad, but: also for the other commeroia.l.rekideiam.of the Bay. Corporate PlamAssociaxion. Based oa:thb iojnqojng, fnequest-that the 4anning conui-iissio-a deity d the application for . Conditional Use, Permit. In. the altexnafive; I requQsf that the Plarmin -g 0, Commissi n continue this hearing so: that its staff may provide- 4 consideration of the points presented in this letter. January 2% 2014. page s Yy(mleave any questiOns, I will do my best to. answer them Very -y-truly yours, SA�:A; 4e7----j Y A, P Mq BAR"* Cc, Client BARRY A. ROSS A PROFESSIONAL CORPORATION 7700 IRVINE CENTER nRIVE, SUITE 710 IRVINE, CA 92618 February 26, 2014 Via email: carol @govsol.com Carol Mentor McDermott Senior Consultant Government Solutions, Inc. 1048 Irvine Avenue, 4618 Newport Beach, CA 92660 Re: 2240 University Drive, Newport Beach, CA Conditional Use Permit No. UP2013 -023 Dear Ms. McDermott: 949 - 727 -0977 949 - 727 -9927 fax barry@rossrealestatelaw.com www.rossrealestatelaw.com I have recently received information that is disturbing regarding the above - mentioned matter. I have been informed that you have contacted Steve High of Villa Real Estate, a residential real estate brokerage owned by Mobilitie, LLC and that you informed Mr. High that if Mobilitie, LLC continues to oppose the Conditional Use Permit application of the Chabad Jewish Center ( "Chabad ") at 2240 University Drive, Newport Beach, that you would expose Mobilitie, LLC to the community as being anti- Semitic and that such disclosure would reduce sales at Villa Real Estate. This comment, if true, will expose you, Government Solutions, Inc. and your client, the Chabad Jewish Center, to civil liability for defamation and other torts. In addition, this is a serious violation of business ethics. As you may know, the principal of Mobilitie, LLC, Gary Jabara, is one -half Jewish and he is an active supporter of the Museum of Tolerance and other Jewish causes. Any statement that Mr. Jabara is anti - Semitic is incorrect, wrongful and malicious. In my January 23, 2014 presentation to the City of Newport Beach Planning Commission, I could not have been more clear when I stated in point number I of my written and verbal presentation: "1. THIS IS THE WRONG ZONE FOR A SYNAGOGUE, A CHURCH OR A MOSQUE." After the Planning Commission meeting, I had a friendly conversation with Rabbi Reuven Mintz of the Chabad Jewish Center. I explained to Rabbi Mintz that Mobilitie, LLC is not opposed to. the Chabad Jewish Center or any Jewish organization in general. I explained that Mobilitie, LLC February 26, 2014 Page 2 is opposed to any type of religious institution in the "office /general zone" which is designed for commercial office space rather than a synagogue, a church or a mosque or any religious institution referred to in the Municipal Code as an "assembly" use. Rabbi Mintz seemed to understand what I was saying. I am sure that Rabbi Mintz passed this information along to you. What we have here is a zoning dispute. We do not have a religious war. If you are trying to make this zoning dispute into a religious war, you are making a serious mistake, which will have consequences for you. If you have any questions, please call me. Very truly yours, Al Barry A. Ross BARRY A. ROSS Cc: Rabbi Reuven Mintz David Kiff, City Manager, City of Newport Beach Client March 5, 2014 Mr. Gary Jabara, Chief Executive Officer Mobilitie, Inc. Corporate Headquarters 2220 University Drive, Newport Beach California 92660 Subject: Chabad Jewish Center of Newport Beach Conditional Use Permit Appeal to the City Council of the City of Newport Beach Dear Mr. Jabara; I am very impressed with the exciting vision of Mobilitie, Inc. and the successes that you have had in your organization. I recently read about the new DAS at the America's Center convention complex and Edward Jones Dome in downtown St. Louis; the Honda Center in Anaheim; Tropicana Field, home of MLB's Tampa Bay Rays; Arrowhead Stadium, the home field of the NFL's Kansas City Chiefs; and Churchill Downs, home of the Kentucky Derby. I was also recently with AG Spanos, CEO of the San Diego Chargers where he talked about the NFL's vision of expanding the wireless connection technology at all of its stadiums for fan convenience and sports business development. I am sure you are very proud of what you have building. I have had some knowledge of your company for some time, and did not ever expect that I would be reaching out to you to discuss business. I was invited by a group of people that are affiliated with the community of the Chabad Jewish Center of Newport Beach to take a look at their intent to purchase the office building at 2240 University Drive, Newport Beach. I was asked to provide a third party review of the Conditional Use Permit that they obtained from the City of Newport Beach with regard to the occupancy of the building and the use of some of the space for assembly purposes. As I have become more familiar with the,plans of the Jewish Center and have better understood the activities of the Center and its Friendship Circle organization, I have also become aware of your recent ownership and improvements of the office building at 2220 University, your opposition to the Conditional Use Permit, and your concerns relative to traffic and parking. As someone that has been involved in similar situations in the past as a consultant to cities and the private development community and who has dealt with land use and environmental issues, I am very sensitive to land use decision - making. I have read the letter that Mr. Ross introduced at the January 23, 2014 Planning Commission meeting, the appeal that you filed with the City on February 6, 2014, and the January 23, 2014 Staff Report that was prepared by the Community Development Department and presented to the Planning Commission. I have reviewed other documents also that would allow me to better understand your general concerns. ■ EXCELLENCE FACILITATING STRATEGIC DECISION ■ ■ 3367 Corte Levanto ■ Costa Mesa, CA 92626 ■ 714 - 838 -9900 ■ 714 - 838 -9998 (fax) ■ ■ ecommunitvsysonearthlink.net ■ www.csacomi)anies.com ■ March 5, 2014 Page 2 of 3 It would be very valuable for me to be able to meet with you and your representatives to discuss further and in greater detail your concerns so that I can better understand the entire situation. I have called your office several times and left voice mail messages for you, and unfortunately have not heard back. I felt that it would best serve you and me if I sent this letter requesting a convenient time when we could meet face -to -face and have a discussion around this matter. I am confident that with your professionalism, creativity and business acumen, we can have a constructive discussion that will best serve the City of Newport Beach, and the property owners and tenants of the Bay Corporate Plaza. Upon review of this letter, I would ask that you have your Executive Assistant reach out to me and offer some dates and times that would be convenient for you and I to meet and discuss this further. I would like to pursue this discussion prior to the March 25, 2014 City Council public hearing on the appeal. I hope that you see the value of us meeting and that you are similarly committed to this discussion. I am hoping that the kind of success that Mobilitie is having in the wireless community will overflow into the real estate and land use discussions that all are facing in the Bay Corporate Plaza area. Thank you for your consideration and assistance. It is a pleasure to be able to have this discussion with you. Yours, CSA Strategies gy / n Mr. Marshall B. Krupp President/CEO marsballkrupp@csacompanies.com s.comie s.com MBK:mbk Letter — Mobilitie 2014 -03 -04 March 5, 2014 Page 3 of 3 CC: Mr. Christos Karmis, President Mobilitie, Inc. Corporate Headquarters 2220 University Drive, Newport Beach California 92660 Mr. Barry A. Ross, Esq. 7700 Irvine Center Drive, Suite 710 Irvine, California 92618 Mr. Milford W. Dahl, Jr. Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 4 Costa Mesa, California 92626 -1931 Mr. David Kiff, City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Rabbi Reuven Mintz Chabad Jewish Center of Newport Beach 2240 University Drive Newport Beach, California 92660 BARRY A. ROSS A PROFESSIONAL CORPORATION 7700 IRVINE CENTER DRIVE; SUITE 710 IRVINE., CA 92676 - March 19,:2014 Via email: marshallkrupp @esacompanies.com Marshall Krupp, President/CEO CSA Strategies 3367 Corte Levanto Costa Mesa, CA 92626 Re: Mobilitie v. Stein Holdings, LLC Dear.Mr. Krupp: 949- 727 -0977 949- 727 -8927 fax barry&ossrealestatelaw.00m. www.ro6srealestatelaw.com. My client, Mobilitie; LLC has requested that respond to your letter dated March 4, 2014, Mobilitie, LLC does not wish. to meet with you to discuss the Chabad Jewish Center of Newport. Beach. This is not a reflection on you, your letter or your client. Rather, Mobilitie, LLC wishes to pursue its first amendment rights to petition the government to address its grievances concerning the placement of a religious institution in the commercial office park that is zoned for commercial use by the City of Newport Beach and restricted to a commercial use by Section 11.1 of the CC &R's that govern Bay Corporate Plaza. At this juncture, I do not wash to discuss the points that I presented to the Planning Commission, as well as the additional points-that I will present to the City Council and/or the points that I may ultimately present to a judge of the Orange County Superior Court. At the appropriate time, I will present.the appropriate points. very truly yours, i/ I i r BAR:es Enclosure Cc: Client David Kiff, City Manager, City Newport Beach Leonie Mulvihill,_ Esq., Assistant City Attorney, City Newport Beach. LAW OFFICES OF PHILIP A. LEVY A Professional Corporation 20 RAINBOW LAKE IRVINE, CALIFORNIA 92614 TEL: (949) 861 -4114 March 19, 2014 Barry A Ross, Esq. Law Office of Barry A Ross 7700 Irvine Center Drive, Suite 710 Irvine, CA 92618 -2929 Re: Your Letter to Ms. Carol McDermott, of February 26, 2014 Dear Mr. Ross: FAX: (949) 861 -4966 I have been asked to review and respond, on behalf of the Newport Jewish Center, to your letter of February 26, 2014, to Carol McDermott, its Land Use Consultant. I note you have sent that letter to Rabbi Mintz. I ask that, in the future, you desist from communicating directly with my client. You have confirmed that your client, Gary Jabara, objects to the Newport Jewish Center using the building it purchased as a place of religious assembly. We understand that Mr. Jabara complains that the presence of the Newport Jewish Center will diminish the value of his adjacent property. Ms. McDermott reached out to Steven High, an associate of Mr. Jabara's, in an attempt to indirectly convey assurances to Mr. Jabara that the Newport Jewish Center would be an excellent neighbor and further, to determine the basis for Mr. Jabara's perplexing belief that the use by the Jewish Center of the building adjacent to his would diminish the value of his building and his business, Mobilitie. LLC. In your letter, you report that Steven High complains that Ms. McDermott threatened "to expose Mobilitie, LLC, to the community as being anti- Semitic and that such disclosure would reduce sales at Villa Real Estate." You report this purported threat was conditional on Mobilitie's continued opposition to Newport Jewish Center's purchase and use of the adjacent building. As you have also accused the Newport Jewish Center of threatening Mobilitie and Mr. Jabara, and since you have copied the Newport Beach City Manager, with your baseless accusations, this letter necessarily follows. Ms. McDermott has assisted the Newport Jewish Center in its efforts to find a suitable location and in obtaining all appropriate permits. Throughoutthis process, the Jewish Center -I- has conducted itself with honor and dignity. It has never threatened your client, nor anyone else. The Newport Jewish Center is a religious and charitable institution which has done great work benefitting our entire community. They are not bullies, they do not play `hard- ball,' they do not threaten people, theyhelp people. To suggest otherwise, is unconscionable. It is my understanding that in the course of what Ms. McDermott believed was a friendly conversation with Mr. High, who is not only a business associate of Mr. Jabara, but a person she has known for years, she observed she was puzzled by Mr. Jabara's baseless and aggressive opposition to the Jewish Center's use of the property it is purchasing. I am informed she indicated that such conduct might suggest an improper motive. That said, Mr. Jabara's motives are his alone to know and, as to the matter before the City, entirely irrelevant. I have spoken with Ms. McDermott and she categorically denies making any threat of any kind to Steven High or anyone else associated with Mr. Jabara. Your insinuation that she or anyone associated with The Jewish Center has acted in an improper or illegal fashion is unjustifiable. The Jewish Center has not accused or suggested that Mr. Jabara's opposition to the Jewish Center's use of its property is motivated by anti - Semitism. This is not to say that Mr. Jabara's opposition is proper. We do not know Mr. Jabara's motivations. Nevertheless, consideration of your conduct and that of Mr. Jabara, in connection with The Newport Jewish Center's land use application, might cause a neutral and detached observer to question his motivations. Preliminarily, Jewish centers do not tend to decrease the value of adjacent properties. I find the accusation that the presence of a Jewish Center will diminish the value of Mr. Jabara's adjacent property, incomprehensible. Your conduct also raises questions. I was present during your presentation to the Planning Commission and was surprised that you made statements which were patently false. For example, you informed the Planning Commission that the NewportJewish Center had made no attempt to communicate with Mr. Jabara concerning its pending purchase and proposed use of the adjacent property. You later acknowledged you were aware that the Newport Jewish Center had repeatedly attempted to communicate with Mr. Jabara. It is Mr. Jabara who refuses to communicate with the Jewish Center. Now, we understand that Mr. Jabara is under no obligation to speak with Rabbi Mintz or respond to Rabbi's attempts to communicate with him. But that does not justify your representation to the Planning Commission that the Jewish Center has made no effort to communicate with Mr. Jabara. You misinformed the Planning Commission that Mobilitie "has approximately 100 employees and utilizes approximately 100 parking spaces." You knew this statement was false as well. At most we see no more, on weekdays, than a total of approximately 100 cars -2- from all three buildings in all the parking lots which have a total of 253 spaces. You claim Moblitie needs 100 spaces for its employees and additional spaces for its guests. In other words, you concede that Mobilitie uses far more than its fair share of parking spots. Yet, you accuse the Newport Jewish Center of over - burdening the parking, even though our weekday use is meager and our Saturday use sees 10 -15 cars. Parking is not a real issue, so we are puzzled by the aggressive opposition of you and your client to the Jewish Center's use of its property. You also represented to the Planning Commission that there are "approximately 10 to 50 [Mobilitie] employees" on Friday nights and Saturdays. I can attest that I am there every Saturday and have only seen a few cars in addition to those of the attendees of the Newport Jewish Center. You know your statements to the Planning Commission were false yet you made them for the purpose of convincing the Planning Commission that it should deny the Newport Jewish Center a Conditional Use Permit. You continue to repeat these false statements though you know them to be false. We do not complain about either your motivations or those of your client. We, do however, take exception to your conduct. You made additional materially false statements to the Planning Commission. You informed the Commission that The Newport Jewish Center will burden the parking and traffic loads because it "has three religious services per day. In addition, Chabad has `Mommy and Me' classes during the week." Each of these statements is totally false. Newport Jewish Center has one service per week and that is on Saturday mornings as has been our practice for 10 years. It has never had 3 services a day. The Newport Jewish Center has not commenced its Mommy and Me program at the new premises. However, when it does, it will be for an hour and a half, one time per week, and has been attended, on the average, in the past, by 10 mothers and 10 children. You misinformed the Planning Commission that the Newport Jewish Center's "school activity will involve children and more vehicles on and around the premises. Since there is no area designated for a school playground, there will be no place for children to play outside, other than in the parking area. This is a formula disaster." Mr. Ross, your accusation is both false and shameless. The Newport Jewish Center does not have a pre - school or day school at the subject property. The building cannot meet the requirements for a school and The Newport Jewish Center has never requested approval for a school. In the future, if the Newport Jewish Center ever decides to establish a day school, it will be in a suitable facility, and I assure you, our children will not be left to play in traffic or the parking lot as you suggest. I think it is significant that even after you were informed that your representations to a governmental entity deciding a matter in a formal hearing were false, you continue to make them. Rabbi Mintz, the Newport Jewish Center and its representatives have, since December 2013, -3- repeatedly reached out to the owners of all the buildings in the complex. Mr. Jabara, for his own reasons, has refused to communicate with us, except through you. We note Mr. Jabara, on his part, has threatened the Newport Jewish Center with `scorched earth' litigation unless it abandons its plans to use its property. We also understand that the litigation he threatens is intended to so burden the resources of the Newport Jewish Center that it is forced to abandon its intended use of 2240 University. , The Newport Jewish Center has never threatened to hold Mr. Jabara out to the public as an anti- Semite. On the other hand, the Newport Jewish Center has suffered your false accusations and Mr. Jabara's aggressive efforts to bar the Jewish Center from using its property. All that having been said, I agree with you that our dispute is a zoning - land use dispute. You ask Ms. McDermott whether the Newport Jewish Center "wants a religious war." I have never heard such a query in more than 20 years of practice. Nevertheless, the answer to your provocative question is an unequivocal "NO." I assure you, The Newport Jewish Center will be an excellent neighbor, with an extraordinarily light parking and traffic 'foot print.' The Newport Jewish Center will not diminish the value of Mr. Jabara's business or property. While I believe you already know this, the Jewish Center does not wish to let even this opportunity pass without again attempting to meet with Mr. Jabara and put to rest any and all legitimate concerns he may have to the Jewish Center as a neighbor. Please feel free to contact me should you have any questions or should you desire to facilitate a meeting with Mr. Jabara and the Jewish Center. LAW OFFICES OF PHILIP A. LEVY A Professional Corporation cc: Mr. David Kiff. City Manager, City of Newport Beach M March 24, 2014 Page 78 of 90 Attachment B -4 Planning Permit Application ��1 -3ot3- Sole Community Development Department Planning Division 100 Civic Center Drive / P.O. Box 17681 Newport Beath, CA 9265 &8915 (949)£44 -3204 Telephone / (9491644 -3229 Facsimile www.newportbeachca.00v 1. Check. Permits Requested: • Approval-in-Concept DLimited Term Permit - [I Staff Approval, • Coastal Residential: Development: Dseasonal 0- <90dey 0 >90days DTract.Map 0 Condominium Conversion ❑ Modification Permit 0 Traffic Study 0 Comprehensive Sign Program 0 Off-She Parking Agreement 'Koss Permit.- CiMnor %Conditional ODevelopment Agreement 0 Planned Community Development Plan 0 Amendment to existing Use Permit 0 Development Plan 0 Planned Development Permit 0 vartanoe ❑ Lot Line Adjustment 0 Site Development Review - D Major 0 Minor 0 Amendment - ❑Code OPG DGP OLCP D Lot Merger D Parcel Map ry 0Other. Y �i,kceL Rica 1660 2. Project Address(es) /Assessoes Parcel No(s).: '1214 C. W 14 edZ S 1T'l 011:4 061U60 3. Project Description and Justification (Attach_ additional sheets if necessary): 56C CATTAt*s � 4. ApplicantName(s): jtiGUttTct5N CcNrt Address: $ES c.MT COAL lA V 'st.�1Te aw City /state/Zip: CxIQWA OG _ ViAR I CA D Ulis' Phone:? ( "i`? Fax: Emailiti¢t3'tt'tS{� p/ct3gsR 5. Contact: G' P�"I- i c�<ritprt o C i 'tk AAot - c A"L G) DVS04 -- c .o t), ° es- _?Address: , 029 19 c Re f r 5 U a r400--'P V S idNCt�Q t�T S� \yt�aRJ!r ;N4. , City/State/Zip: G 4t saot i 1 e A2�t� e7 14 L.0 Address: AAGQ 9-7- to Rcc-t eve suiTi5 2 City /State/zip:, Phone: (NAV Z Property Owner's Affidavits: Email: CAk r'?. (I tW &zL e cam Fax:�l' °$-OtaO Email:ittitb SYjNttrict�if +Cs catty (i) (Vve) OPO iJL l� % .S/ P1N Navp ie�G� depose and say that (I am) (we are) the owner(s) of the property lies) involved in this application.. (t) (We) further certify,. under penalty of perjury, that the foregoing statements and answers herein contained and the information herewith submitted are in all respects true and correct to the best of (my) (our) knowledge and belief. Sjgnature(s): /� -- Date: q" X73 'May be signed by the lessee or by an authorized agent It written authorization from the owner. of record is filed: concurrently with the application. Please note, the owner(sy signature for ParcelTtract Map and Lot line Adjustment Application must be notarized. FAUsereStdl nlSharedlAdminlPfamilrtg ,pfiSslenvsppluatlons�PlanNng U PermRpwn.docx Wpdataatedda /11/18 Project Description for Use Permit 2240 University Drive Chabad of Newport Beach, a social service and Jewish educational organization, proposes the use of an existing 16,932 square foot two story office building in an office park at the easterly terminus of University Drive for general administrative offices, religious classes and services, Friendship Circle administrative offices, support groups, educational programs and workshops for mentors of children and adults with special needs. Hours of operations are daily 9:oo am to 5:30 pm with educational programs and religious services being held on several evenings during the week and on the weekends. Parking is provided on -site and is adequate for the proposed use, since the parking ratio of 4 /l000 is currently provided for the weekday office use with 68 (16,932/250) permitted parking stalls and weekend parking is adequate to meet the Jewish Center's requirements of one parking stall per 3 seats of assembly (see attached Social Hall proposed seating plan of 208 non -fixed chairs and parking calculations) when other offices in the office park are not occupied. A shared parking agreement will be provided to demonstrate the willingness of the existing building owners to allow for evening and weekend use of additional existing parking. The Jewish Center intends to occupy the 2rIA floor and allow the existing ground floor tenant leases to remain. The proposed modifications to accommodate the Center's program require a tenant improvement that remodels the entire 8,958 square foot second floor level. The building program includes administrative office, Multi- Purpose Rooms, Children's Room, Kosher Kitchen, Library, Storage and Social Hall (see attached space plan). Photos are provided in lieu of building elevations. Jewish Center Building Parking Calculations Based on Net (SF) 1st floor 7,974 SF @4/1,000 32 parking stalls 2nd floor 8,958 SF @4/1,000 36 parking stalls Total Building C 16,932 SF 68 parking stalls required Total site 64,026 256 parking stalls required Parking as permitted provided 263 Handicapped 4 Standard 195 Compact 64 Current parking due to the addition of new ADA spaces: Total Parking 253 Handicapped (included in total) 7 Occupancy with Social Hall assembly (night and weekend): Area SF parking ratio required parking Social Hall 2,950 207 chairs @ 1/3 chairs 69 1 stall per 35 SF 84 Total provided for building "C" 68 Total provided onsite parking 260 Sample Occupancy with office and Social Hall assembly: Area SF parking ratio required parking Office 800 @ 4/1,000 3.2 Social Hall 2,950 98 chairs @ 1/ 3 chairs 32.8 (36 less 3.2) Total Provided Second Floor 36 Sample Occupancy with office, multi- purpose (assembly), children's rm. kitchen, library and Social Hall partial assembly: Area SF parking ratio required parking Office 800 @ 4/1,000 3.2 Multi- Purpose 4100 65 chairs @1/3 chairs 21.6 Children's Rm. 650 @ 4/1,000 2.6 Kitchen 380 @ 4/1,000 1.5 Library 560 @ 4/1,000 2.2 Social Hall 2,950 15 chairs @ 1/ 3 chairs 2.5 (36 less 33.5) Total Provided Second Floor 36 Findings: i. The use is consistent with the General Plan and any applicable specific plan; The proposed Jewish Center is a use that is allowed under a conditional use permit within the General Plan designation for the site. 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; The office zoning allows for conditional usepermits for the requested use, i.e. the administrative offices andpublic assembly for a Jewish Center 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; The proposed use is a small Jewish congregation that has administrative functions, small gatherings, andpublic assembly on the second floor of an existing office building with office tenants remaining on the first floor. Parking is adequate for the proposed daytime uses and full use of the public assembly will only occur on evenings and weekends when the remaining offices on -site are not occupied. A shared parking agreement will be provided by the office condo association which will authorize the evening and weekend use of the entire parking lot. 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and The site is an existing office complex at the end of a quiet cul -de -sac which terminates at the Back Bay. No changes are contemplated for any of the existing buildings or parking lot with the exception of tenant improvements on the second floor of the subject office building. Vehicular access as currently exists will be maintained assuring complete and convenient access for all public and emergency vehicles. Parking is adequate for the proposed use, both for daytime use and evenings and weekends as demonstrated in the project description. Neither daytime nor evenings /weekend traffic is anticipated to create any conflicts with existing uses in the vicinity. 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. The proposed use is a quiet office use during the day and will provide for some classes and religious services on evenings and weekends. There is no access from the site to the adjoining residential area, there is only emergency access from the building to the rear property line and all activities are conducted within the building insuring compatibility with adjoining uses. There is no jeopardy to the public health, interest, safety or general welfare of persons residing or working in the neighborhood. FOR 'OFFICE USE ONLY Planning Activity History: APN No: 'AbDD - "A Z Date File 7::; Council District No..3 Fee Pd: S 0 0 Z), General Plan Designation: Form of Payment ❑ Credit Card Zoning District Check Check No.; Coastal.Zone:. ❑ Yes ❑ No ❑ 2700-5000 Account Environmental Review: [:1 Yes ❑ No Deposit Acet, No. 0 Z� - ZfiAS Zq Priority Project: ❑ Yes ❑ No. Receipt No.VG %) p. tk u ! %ks Community.Assoclation(s): tW22e \) t e D % 14 -:D-Lo Development NO. Project NoR 4N -Z, to 7-VD6 Activity No.\)7RZ1W:S ID Z:3 ❑Planning Commission meeting ❑Zoning Adadnistrator Hearing ❑Community Development.Director ACTION: El Approved ❑ Denied ❑ Tabled, ACTION DATE ❑ CONTINUED TO: Continued Date(s) ❑Plannina Commission ❑zoninq Administrator ❑Community Development. Director ACTION, ❑Approved F-1 Denied ❑ Tabled' ACTION DATE APPEALED: Appeal. Received (Date): Appealed to, ❑City Council ❑PIanning Commission ❑Other: Meeting Date of Appeal: Action: ❑ Approved ElDenied F-1 Other APPLICATION WITHDRAWN: Withdrawal Received (Date): Remarks: F:\Useri\CDD4SharedNAdminIPlanning_DivisidnlApplicAtii)nsNoffice use Only.docx Updated 07/08115 March 24, 2014 Page 79 of 90 Attachment B -5 Planning Commission Resolution RESOLUTION NO. 1930 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2013 -023 FOR AN ASSEMBLY USE AND A JOINT USE OF PARKING LOCATED AT 2240 UNIVERSITY DRIVE (PA2013 -206) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by the Newport Jewish Center, with respect to property located at 2240 University Drive, and legally described as Parcel 3 of Parcel Map No. 82 -710 requesting approval of a conditional use permit. The applicant proposes to convert the second floor of an existing two -story office building into an assembly use. No increase In floor area is proposed. The Conditional Use Permit is required to allow the assembly use, and to establish a parking management plan allowing for joint use of the common area parking lot during evenings and weekends. 3. The subject property is located within the Office General (OG) Zoning District and the General Plan Land Use Element category is General Commercial Office (CO -G). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is General Commercial Office (COG -B). 5. A public hearing was held on January 23, 2014, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning. Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project has been determined to be categorically exempt pursuant to the State CEQA (California Environmental Quality Act) Guidelines under Class 1 (Existing Facilities). 2. Class 1 exempts projects involving negligible or no expansion of a use including but not limited to interior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances. The proposed project involves a tenant improvement to convert a previous office use to an assembly use, and involves no expansion in floor area. Further, there will be no traffic impacts associated with the assembly use. Planning Commission Resolution No. 1930 Paqe 2 of 11 SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 (Conditional Use Permits and Minor Use Permits) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: A -1. The subject property is designated as General Commercial Office (CO -G) within the Land Use Element of the General Plan which is intended to provide for administrative, professional, and medical offices with limited accessory, retail, and service uses. Other uses may be permitted in accordance with the CO -G land use designation. A -2. The proposed assembly use will consist of religious services, administrative office, and group meetings. The principal use of the facility is consistent with the General Plan because the religious facility will provide a support service to the community. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: B -1. The proposed assembly use is located in the Office General (OG) Zoning District, which is intended to provide for administrative, professional, and medical offices with limited accessory retail and service uses. An assembly use is permitted within this Zoning District with the approval of a conditional use permit. B -2. The request to allow joint use of the parking lot is necessary to satisfy the off - street parking requirement for the proposed assembly use during evenings and weekend hours. Joint use of parking in conjunction with the Parking Management Plan is consistent with the Zoning Code because the project involves nonresidential uses on the same site that have peak parking demand occurring at different times of the day. In this case, the proposed assembly use will share the parking lot with office uses, and will have peak parking demand during evenings and weekends, which is outside of normal business office hours. B -3. In finding that the proposed use complies with Section 20.40.110, the following criteria has been considered: i. The most remote space is located within a convenient distance to the use it is intended to serve. Planning Commission Resolution No. 1930 Page 3 of 11 The most remote space is located approximately 285 feet to the east of the building entrance. The existing parking lot is relatively flat, was a part of the original development of the site, and has demonstrated it is sufficiently convenient for workers and visitors. ii. The amount of reduction is no greater than the number of spaces required for the least intensive of the uses sharing the parking. The project does not result in a reduction of parking. The proposed assembly use and existing office uses on -site will be adequately parked based on differing operational hours. ill. The probable long -term occupancy of the structures, based on their design, will not generate additionai parking demand. The property was originally developed in 1982 as an office complex for office uses. The development consisting of four multi -story office buildings is anticipated to remain occupied by office uses. The project has been conditioned such that, in the event any future uses operate on weekends and evenings, the Parking Management Plan would be reevaluated by the Community Development Director to ensure adequate parking exists, and an amendment to the Conditional Use Permit may be required by the Planning Commission. iv. The applicant has provided sufficient data, including a parking study if required by the Director, to indicate that there is no conflict In the peak parking demand for the uses proposing to make joint use of the parking facilities. The applicant proposes to use the parking lot jointly with existing office uses. Existing office uses will not conflict with the peak periods of the assembly use because these times occur outside of normal business office hours, which are typically 8 a.m. to 5 p.m., Monday through Friday. Conditions of approval have been provided to preclude any conflict during peak parking demand for the proposed uses sharing the parking. V. The property owners involved in the joint use of parking facilities shall record a parking agreement approved by the Director and City Attorney. The agreement shall be recorded with the County Recorder, and a copy shall be filed with the Department. The parking lot is owned in common by all building owners within the Bay Corporate Plaza Association and use of the facility is regulated by the Declaration of Covenants, Conditions, and Restrictions recorded July 12, 1983 as Instrument No. 83- 299103. A copy of these legal requirements has been filed with the Community Development Department and City Attorney. Pursuant to Section 12.1 of the CC &R's, every member shall have a nonexclusive easement for use and enjoyment in and to the Community Facilities which Planning Commission Resolution No. 1830 Page 4of11 includes the entire parking lot. This will ensure the proposed assembly use has access to, and use of the parking lot. vi. A parking management plan shall be prepared in compliance with subsection 20.40.110.0 (Parking Management Plan). A parking management plan has been prepared, and compliance with said plan has been included as a condition of approval. The purpose of the Parking Management Plan is to ensure that oft- street parking Is sufficient for the uses sharing the site, and that there will be no conflict in parking during peak periods. B -5. In finding that the proposed use complies with Section 20.40.100, the following criteria has been considered: i. The parking facility is located within a convenient distance to the use it is intended to serve. The applicant, only after securing a written agreement from the property owner, proposes to use the adjacent YMCA parking facility (2300 University Drive) for off - site parking on the holidays of Rosh Hashanah and Yom Kippur. The parking facility is conveniently located within walking distance of the proposed assembly use. ii. On- street parking is not being counted towards meeting parking requirements. The applicant does not propose to count on- street parking towards the parking requirement. ill. Use of the parking facility will not create undue traffic hazards or impacts in the surrounding area. The adjacent parking facility is located in an area that is not frequently travelled by residents or visitors of the City. In addition, the parking facility is isolated at the rear of the YMCA, is expansive, and will only be used temporarily to accommodate the proposed assembly use on the holidays of Rosh Hashanah and Yom Kippur. Therefore, use of the parking facility will not constitute a hazard to public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. iv, The parking facility will be permanently available, marked, and maintained for the use it is intended to serve. The applicant, in securing a written agreement to use the adjacent YMCA parking facility will ensure spaces are available, marked, and maintained for the assembly use served. Planning Commission Resolution No. 1930 Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in SuoDort of Findin CA. The project is located within an existing office complex in a nonresidential zone. Residential and public facility (YMCA) uses are allowed in the vicinity. The proposed assembly use will provide a support service to surrounding residents and the community. C -2. The proposed conversion of office space to an assembly use only involves a tenant improvement to the second floor of an existing two -story office building with no increase in floor area. C -3. The proposed daytime operation of the assembly use will primarily consist of administrative offices and small group meetings which will function similar to adjacent office uses. The proposed operation with limited weekday assembly use results in minimal daytime parking demand. C -4. The proposed evening and weekend operation will consist of lectures, community gatherings, and religious services. The anticipated off- street parking demand will not impact surrounding uses negatively because adequate parking will be available for all uses sharing the project site. Access to the project site is taken from University Drive and not from adjacent residential neighborhoods further ensuring that the operation will maintain compatibility with uses in the vicinity. The location of the site in relation to nearby residential areas is such that it is unlikely that attendees of the assembly use will park in residential neighborhoods. C -5. Outdoor activities are not proposed as part of the assembly use. C-6. The proposed conditions of approval ensure that the potential conflicts with surrounding land uses are eliminated or minimized to the greatest extent possible. Finding: D. The site is physically suitable In terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: D -1. The project site has demonstrated that it is physically suitable to support the existing development on the property. The addition of an assembly use within an existing Planning Commission Resolution No. 1930 Pape 6 of 11 building will not alter the site's ability to provide public and emergency vehicle access or public services and utilities. D -2. The project site has demonstrated that it is physically suitable to accommodate the flow of office workers to the site which traditionally have the same or similar hours of arrival. Therefore, the proposed religious services and lectures, which also attract groups of people at the same time, will be adequately served by the existing design of the site. D -3. The Public Works Department, Building Division, and Fire Department have reviewed the project proposal and provided conditions of approval so as to maintain adequate access, public services, and utilities to the existing development. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor 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 use. Facts in Support of Finding: E -1. The proposed assembly use is intended to support the community and is designed to be compatible with existing office uses on site. E -2. The proposed joint use of parking would not be detrimental in this case, because the proposed assembly use will have peak parking demand during evenings and weekends, which are distinct from office uses sharing the site. E -3. Anticipated traffic volumes from the proposed assembly use will not result in unsatisfactory levels of service or negatively impact traffic circulation in the area. On weekdays, the assembly use generates fewer daily vehicle trips than the previous general office use (ITE Trip Generation Manual, 9t' Edition). On weekends, when the assembly use generates increased trips according to the ITE Trip Generation Manual, traffic volumes on surrounding roadways are lower than weekly volumes. E -4. The project site is located at the end of a cul -de -sac in an area that. is not frequently travelled by residents or visitors of the City, and therefore, will not constitute a hazard to public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2013 -023, subject to the conditions set forth in Exhibit A and the Planning Commission Resolution No. 1930 Page 7 of 11 Parking Management Plan set forth in Exhibit B, which are attached hereto and incorporated by reference. 2. This action shall become final and effective 14 days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 23RD DAY OF JANUARY, 2014. AYES: Ameri, Brown, Hillgren, Kramer, Lawler, Myers, and Tucker NOES': None ABSTAIN: None ABSENT: None Planning Commission Resolution No. 1930 Page 8 of 11 EXHIBIT "A" CONDITIONS OF APPROVAL 1. 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. Conditional Use Permit No. UP2013 -023 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 3. 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 Conditional Use Permit. 4. The Conditional Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed use or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 5. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to the Conditional Use Permit or the processing of a new Conditional Use Permit. 6. A copy of the Resolution, including conditions of approval Exhibit "A" and _parking management plan Exhibit "B" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 7. The assembly use shall comply with the approved Parking Management Plan, which may be modified by the Community Development Director or Planning Commission. 8. Daytime assembly use, Monday through Friday, shall be limited to 108 seats, maximum, and shall maintain a minimum of 36 parking spaces, except on the holidays of Rosh Hashanah and Yom Kippur. On such days, the maximum may be increased to .207 seats if the applicant obtains a written agreement securing on -site or conveniently located off -slte parking for the additional parking demand commensurate with the increased occupancy at a rate of 1 space per 3 seats. In addition, parking secured shall not create any undue traffic hazards or negatively impact the surrounding area. 9. Evening (after 5:30 p.m.) and weekend assembly use shall be limited to 207 seats, maximum. 10. Area used for assembly purposes shall be limited to the multipurpose room and social hall. Planning Commission Resolution No. 1930 Paae 9 of 11 11. A copy of the recorded Bay Corporate Plaza Association CC &R's shall be filed with the Community Development Department and the City Attorneys Office. The Community Development Director shall be notified immediately in writing and an amendment to the Conditional Use Permit may be required if the CC &R's are amended, if additional restrictions are placed upon the subject assembly use, or if action is taken precluding the use and/or availability of a minimum of 90 parking spaces. 12. 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. 13. 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. 14. Construction activities and staging associated with the tenant improvements shall not impact access to the site or disrupt access to the parking spaces. 15. 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: 16. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 17. 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. 18. 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 beyond what is anticipated with this Conditional Use Permit, 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. Between the hours of TOOAM and 10:00PM Between the hours of I O:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 5OdBA Mixed Use Property 45dBA 6OdBA 45dBA 5OdBA Commercial Property N/A 65dBA NIA OOdBA 16. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 17. 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. 18. 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 beyond what is anticipated with this Conditional Use Permit, 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. Planning Commission Resolution No. 1930 Page 10 of 11 19. 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 Newport Jewish Center Including, but not limited to, the UP2013 -023 (PA2013 -206). 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. Planning Commission Resolution No. 1930 Page 11 of 11 Exhibit "B" PARKING MANAGEMENT PLAN The following Parking Management Plan is provided pursuant to Section 20.40.110 (Adjustments to Off- Street Parking Requirements) of the Zoning Code. The Parking Management Plan will employ the following management mechanisms to address impacts associated with the joint use of off -street parking spaces as required by Chapter 20.40 of the Zoning Code: Off- Street Parking • Areas designated for assembly purposes shall be limited to the multipurpose room and social hall, totaling 3,116 square feet. Any increase in floor area used for assembly purposes shall not be permitted without first amending this Parking Management Plan and Conditional Use Permit No. UP2013 -026, if deemed necessary by the Community Development Director. During daytime hours, Monday through Friday, the proposed second floor religious facility shall be limited to a maximum of 108 seats within the multipurpose room and social hall, and a minimum of 36 parking spaces shall be maintained on -site, except as specified by Condition No. 8 of Exhibit A (Conditions of Approval). Any increase in seating shall require an amendment to this Parking Management Plan and Conditional Use Permit No. UP2013 -026, if deemed necessary by the Community Development Director. • During evenings, Monday through Friday, and on weekends, the proposed religious facility shall be limited to a maximum of 207 seats within the multipurpose room and social hall. Any increase in seating shall require an amendment to this Parking Management Plan and Conditional Use Permit No. UP2013 -026, if deemed necessary by the Community Development Director. • During evening hours (after 5:30 p.m.), Monday through Friday, and on weekends, a minimum of 90 parking spaces shall be maintained on -site for the proposed assembly use. • The Community Development Director shall immediately be made aware should off - street parking no longer be available for the subject assembly use. Any change in the availability of parking shall require an amendment to this Parking Management Plan and Conditional Use Permit No. UP2013 -026 to address parking demand. • Employees of the proposed religious facility shall park on site. March 24, 2014 Page 80 of 90 Attachment B -6 Parking Agreements YMCA of Orange County Newport-Mesa Family YMCA Newport Beach Golf Course PARKING AGREEMENT By and Between YMCA of Orange County Newport — Mesa Family YMCA and Chabad Jewish Center of Newport Beach�� This PARKING AGREEMENT ( "Agreement ") is entered into and effective thisx cl y of March 2014, by and between the YOUNG MEN'S CHRISTIAN ASSOCIATION ( "YMCA ") and CHABAD JEWISH CENTER OF NEWPORT BEACH ( "NJC "). RECITALS WHEREAS, YMCA is the owner of property located at 2300 University Drive, County of Orange, City of Newport Beach, State of California, Assessor's Parcel Number 439- 401 -01 ("YMCA Property "); WHEREAS, NJC occupies property located at 2240 University Drive, County of Orange, City of Newport Beach, State of California, Assessor's Parcel Number 439- 439- 401 -02 ( "NJC Property"); WHEREAS, NJC desires to use certain parking spaces located at YMCA Property for special events in order to address the overflow parking that may be required several times annually as a result of the use of the NJC Facilities; and; WHEREAS, YMCA is willing to permit NJC to use portions of YMCA's parking spaces for the purposes set forth above; and; NOW, THEREFORE, in consideration of the recitals and mutual obligations of the parties as herein expressed, YMCA and NJC agree as follows: 1. The parking spaces referred to in this Agreement conform to current City of Newport Beach standards for parking spaces, and the parties agree to maintain the parking spaces to meet those standards. 2. YMCA agrees to provide NJC the right to the use of up to (�(. zL ) parking spaces at the YMCA Property as shown on Exhibit A to this Agreement, subject to the procedures set forth herein. a. At least thirty (30) days prior to anticipated requirement for parking spaces, NJC will send a written request to YMCA, indicating the date and time and anticipated number of spaces required, YMCA -NJC Shared Parking Agreement 1 3/2/14 b. So long as the request does not interfere with YMCA's activities and so long as NJC has fulfilled its obligations under this Agreement, the request will not be unreasonably denied. c. During the event for which parking spaces are utilized,- NJC will provide sufficient staff to handle traffic and parking oversight and direction to ensure that NJC's activities do not interfere with YMCA's activities. d. NJC may use a shuttle service or valet service to assist with movement of people between the YMCA Property and the NJC Property. Such shuttle service or valet service shall be performed in a manner designed to minimize any impacts on YMCA's activities. e. NJC shall bear all costs reasonably related to the sharing of spaces under this Agreement such as staff (2c), shuttle service or valet service (2d). Excluded from such costs are costs of general maintenance. 3. Term and Termination. a. The initial term of this Agreement shall be five (5) years (`Initial Term "), It will be automatically renewed for additional and successive five (5) year terms ("Renewal Terms ") unless notice is given by YMCA not less than three (3) months prior to the end of the Initial or Renewal Term. b. This Agreement may be terminated in the event of a material breach of this Agreement by NJC, including the failure to maintain insurance, if NJC, following written notice by YMCA has not cured such breach within ten (10) days of notice. 4. Notice. When required, notice shall be provided to the parties at the following address or at such address and by such means as may be agreed to by the parties: a. YMCA YMCA of Orange County Newport —Mesa Family YMCA Mr. .Ron - Erickson, Executive Director 2300 University Drive Newport Beach, California 92660 b, NJC Chabad Jewish Center of Newport Beach Rabbi Reuven Mintz 2240 University Drive Newport Beach, California 92660 YMCA -NJC Shared Parking Agreement 2 3/2/14 5. Insurance and indemnity. a. NJC shall ensure that it has such policies of insurance in place as reasonably necessary and to the levels required by the YMCA to cover any risks associated with the activities contemplated under this Agreement. I. NJC. Except to the extent caused by the negligence or willful misconduct by YMCA, or by the use of the Parking Areas by YMCA users, to the extent permitted. by law, NJC shall and.hereby agrees to indemnify and save the YMCA harmless against and from all claims by or on behalf of any person; firm, corporation or other legal entity arising from the use of the Parking Areas by NJC during the term of this Agreement, including any claims arising from: (a) any act of negligence of NJC or of any of its agents, contractors or employees or any violation of law by NJC or breach of any covenant or warranty by NJC hereunder. ii. YMCA. Except to the extent caused by the negligence or willful misconduct by NJC, or by the use of the Parking Areas by NJC Users, to the extent permitted by law, YMCA shall and hereby agrees to indemnify and save NJC harmless against and from all claims by or on behalf of any person, firm, corporation or other legal entity arising from the use of the Parking Areas by NJC during the term of this Agreement, including any claims arising from: (a) any act of negligence of YMCA or of any of its agents, contractors or employees or any violation of law by YMCA or breach of any covenant or warranty by the County hereunder, Each party shall promptly notify the indemnifying party of any action or proceeding brought in connection with any claims arising out of circumstances described in this Section. 6. Nothing in this Agreement shall constitute a conveyance of any interest in real property other .than the limited parking lot rights described herein, including access thereto. 7. The provisions and conditions of this Agreement shall run with the land for those properties referenced in this Agreement and be enforceable against successors in interest and assigns of the signing parties. (signatures appear on following page) YMCA -NJC Shared Parking Agreement 3 3/2/14 In Witness whereof,, the undersigned have executed this Agreement. YMCA of Orange County Date: By: e Lis. Mr. Ron Erickson, Executive Director Newport -Mesa Family YMCA NEWPORTJEWISH CENTER Date: vi, By:f z r Rabbi Reuven Mintz YMCA-NJC Shared Parking Agreement 4 3/2/14 PARKING AGREEMENT By and Between Newport Beach Golf Course, LLC and Chabad Jewish Center of Newport Beach This PARKING AGREEMENT (`Agreement ") is entered into and effective this IAj, + day of March 2014, by and between the Newport Beach Golf Course; LLC ( "NBGC ") and CHABAD JEWISH CENTER OF NEWPORT BEACH ( "NJC "). RECITALS WHEREAS, NBGC the owner of property located at 3100 Irvine Avenue, County of Orange, City of Newport Beach, State of California, Assessor's Parcel Numbers 119 - 200 -38, 119 - 200 -41, 119- 300 -15, 119- 300 -16, and 119 -310 -04 ("NBGC Property"); WHEREAS, NJC occupies property located at 2240 University Drive, County of Orange, City of Newport Beach, State of California, Assessor's Parcel Number 439- 439 - 401 -02 ( "NJC Property "); WHEREAS, NJC desires to use certain parking spaces located at NBGC Property for special events in order to address the overflow parking that may be required several times annually as a result of the use of the NJC Facilities; and; WHEREAS, NBGC is willing to permit.NJC to use portions of NBGC's parking spaces for the purposes set forth above; and; NOW, THEREFORE, in consideration of the recitals and mutual obligations of the parties as herein expressed, NBGC and NJC agree as follows: 1. The parking spaces referred to in this Agreement conform to current City of Newport Beach standards for parking spaces, and the parties agree to maintain the parking spaces to meet those standards. 2. NBGC agrees to provide NJC the rightto the use of up to 100 parking spaces at the NBGC Property as shown on ExhibitA to this Agreement, subject to the procedures set forth herein. a. At least thirty (30) days prior to anticipated requirement for parking spaces, NJC will send a written request. to NBGC, indicating the date and time and anticipated number of spaces required. NBGC -NJC Shared Parking Agreement 1 3/2/14 b. So long as the request does not interfere with.NBGC's activities and so long as NJC has fulfilled its obligations under this: Agreement, the request will not be unreasonably denied. c. During the event for which parking spaces are utilized, NJC will provide sufficient staff to handle traffic and parking oversight and direction to ensure that NJC's activities do not interfere with NBGC's activities. d. NJC may use a shuttle service or valet service to assist with movement of people between the NBGC Property and the NJC Property. Such shuttle service or valet service shall be performed in a manner designed to minimize any impacts on NBGC's activities. e. NJC shall bear all costs reasonably related to the sharing of spaces underthis Agreement such as staff (2c), shuttle service or valet service (2d). Excluded from such costs are costs of general maintenance. f. In addition to the costs described in 3e above, for each event for which parking spaces are utilized, NJC shall pay to NBGC the sum of one dollar ($1) that both NBGC and NJC is fair-and reasonable in light of the purposes for this Agreement. 3. Term and Termination. a. The initial term of this Agreement shall be five (5) years (`Initial Term "). It will be automatically renewed for additional and successive five (5) year terms ( "Renewal Terms ") unless notice is given by NBGC not less than three (3) months prior to the end of the Initial or Renewal Term. b. This Agreement maybe terminated in the event of a material breach of this Agreement by NJC, including the failure to maintain insurance, if NJC, following written notice by NBGC has not cured such breach within ten (10) days of notice. 4. Notice. When required, notice shall be provided to the parties at the following address or at such address and by such means as may be agreed to by the parties: a. NBGC Newport Beach Golf Course, LLC Barry Kaabe, Operations Manager 3100 Irvine Avenue Newport Beach, California 92660 b. NJC Chabad Jewish Center of Newport Beach Rabbi Reuven Mintz NBGC -NJC Shared Parking Agreement 2 3/2/14 2240 University Drive Newport Beach, California 92660 5. Insurance and Indemnity. a. NJC shall ensure that it has such policies of insurance in place as reasonably necessary and to the levels required by the NBGC to cover any risks associated with the activities contemplated under this Agreement. L NJC. Except to the extent caused by the negligence or willful misconduct by NBGC, or by the use of the Parking Areas by NBGC users, to the extent permitted by law, NJC shall and hereby agrees to indemnify and save the NBGC harmless against and from all claims by or on behalf of any person, firm, corporation or other legal entity arising from the use of the Parking Areas by NJC during the term of this Agreement, including any claims arising from: (a) any act of negligence of NJC or of any of its agents, contractors or employees or any violation of law by NJC or breach of any covenant or warranty by NJC hereunder. ii'. NBGC. Except to the extent caused by the negligence or willful misconduct by NJC, or by the use of the Parking Areas by NJC Users, to the extent permitted by law, NBGC shall and hereby agrees to indemnify and save NJC harmless against and from all claims by or on behalf of any person, firm, corporation or other legal entity arising from the use of the Parking Areas by NJC during the term of this Agreement, Including any claims arising from; (a) any act of negligence of NBGC or of any of its agents, contractors or employees or any violation of law by NBGC or breach of any covenant or warranty by the County hereunder. Each party shall promptly notify the indemnifying party of any action or proceeding brought in connection with any claims arising out of circumstances described in this Section. 6. Nothing in this Agreement shall constitute a conveyance of any interest in real property other than the limited parking lot rights described herein, including access thereto. 7. The provisions and conditions of this Agreement shall run with the land for those properties referenced in this Agreement and be enforceable against successors in interest and assigns of the signing parties. (signatures appear on following page) NBGC -NJC Shared Parking Agreement 3 3/2/14 in Witness whereof, the undersigned have executed this Agreement. L NEWPORT BEACH GOLF COURSE, LLC By: Barry Ka Operations Manager Authorized Signor NEWPORTJEWISH CENTER By: Rabbi Reuven Mintz Date: Date: A \—qq a NBGC -NJC Shared Parking Agreement 4 3/2/14 March 24, 2014 Page 81 of 90 Attachment B -7 Parking Agreement Maps March 24, 2014 Page 82 of 90 Parking Agreement Facilities Logistics Map (Refer to Parking Agreements) Newport Beach Golf Course March 24, 2014 Page 83 of 90 YMCA Parking Maps wish March 24, 2014 Page 84 of 90 Newport Beach Golf Course Parking Maps vport Beach olf Course Parking March 24, 2014 Page 85 of 90 Attachment B -8 Professional Profile of Marshall Krupp CSA Strategies March 24, 2014 Page 86 of 90 Professional Profile MARSHALL BENNETT KRUPP Vistage International ■ CSA Stratgies ■ The Coaching Symposium 3367 Corte Levanto, Costa Mesa California 92626 Office: (714) 838 -9900 Facsimile: (714) 838 -9998 Mobile: (714) 624 -4552 Email: marshall.krupp@vistagechair.com www.vistageusa.com Present CEO and Key Executive Peer Private Advisory Board Chair, Coach, Mentor & Facilitator Position: VISTAGE INTERNATIONAL Authorized Partner and Everything DiSC Coach/Facilitator EVERYTHIGN DISC: A WILEY BRAND President/Chief Executive Officer COMMUNITY SYSTEMS ASSOCIATES, INC. President CSA STRATEGIES President THE COACHING SYMPOSIUM Education: University of Southern California Masters; Public Administration University of Southern California Graduate Certificate; Environmental Quality Management California State Polytechnic University - Pomona B.S.; Urban and Regional Planning Los Angeles Pierce Junior College A.A.; Architecture and Environmental Design Experience: Mr. Marshall Krupp has a 40 -year professional background in coaching and mentorship, management, strategic planning, negotiations, and administration of public governmental agencies and private business enterprises. In the public sector Mr. Krupp has offered services focused on community development, asset management, impact mitigation, public finance, public /private partnerships, organizational revitalization, redevelopment, planning, urban design, public agency strategic planning, political strategies, and implementation for cities, counties, redevelopment agencies, school districts, and community college districts. In the private sector Mr. Krupp has offered services focused on business, executive and personal coaching, strategic business planning and development, financial strategies and business plans, crises management and intervention, conflict resolution strategic and facilitation, reorganization and restricting strategies, and forensic consultation and investigations to real estate developers, business interests and organization, and investment entities. Mr. Krupp serves as Chair (facilitator and mentor) of Peer Private Advisory Boards, consisting of trusted advisors from different areas and businesses environments, and who regularly meet to work together as equals with the primary goal of addressing difficult challenges and setting their course for the future. The diversity of the groups, coupled with real dialogue, creates an environment of trust that transcends personal agendas. Private advisory board members help each other craft their own solutions, create a culture of accountability, and become better listeners and better leaders. March 24, 2014 Page 87 of 90 Mr. Krupp is a partner with Vistage International, Inc. that offers professionally facilitated peer private advisory boards that support CEOs, business owners and senior executives become better leaders, make better decisions and ultimately achieve better results. Vistage began in 1957 as The Executive Committee (TEC) and now celebrates 70,000 alumni. Today, over 18,000 successful business leaders in 15 countries are selected to participate in peer groups. There are over 600 Vistage members in Marshall's region of Orange County, California. A Peer Private Advisory Board is a group of very diverse non - competing advisors who meet in a confidential, safe haven environment, together exploring options that give the business leader greater perspective. The diversity of the group coupled with real dialog and their commitment to collaborate and grow, creates an environment of trust that transcends personal agendas. Peers work together as equals with the primary goal of meeting difficult challenges and setting their course for the future. Mr. Krupp is an authorized partner and provides DiSC® Workplace, Management and Leadership Assessments and facilitates DiSC® Team Building trainings and workshops. DiSC® is a personal assessment tool used to improve work productivity, teamwork and communication. DiSC® is non- judgmental and helps people discuss their behavioral differences. Everything DiSC® is the leading personal assessment tool used by more than 40 million people and companies worldwide to improve work productivity, teamwork and communication. The DiSC® model provides a common language that people can use to better understand themselves and to adapt their behaviors with others. This can be within a work team, a sales relationship, a leadership position, or other relationships. DiSC® is one of the best tools for team building and gaining greater effectiveness and efficiency from leaders, to management teams, to individual employees. Mr. Krupp is President of Community Systems Associates, Inc. which is the parent company of CSA Strategies, The Coaching Symposium, and WorldSolarTec, Inc. Mr. Krupp is personally responsible for all of the consulting services and operations of the companies. Community Systems Associates, Inc and its companies are dedicated to providing public and private clients with the highest level of services to attain the mission, goals and objectives of its clients and to address problem - solving and decision - making challenges. Mr. Krupp is an expert in political strategies, public/private partnerships, and in representing his clients in sensitive and controversial topics. He is also an expert in motivational, inspiration and empowerment mentorship, coaching, and consultation to enable his clients to overcome controversial and challenging situations. Mr. Krupp is President of The Coaching Symposium and provides coaching and mentorship on a personal, inter- personal, cultural and institutional level to address challenges and issues that constrain individual, executive and organizational success. Mr. Krupp is also President/Chief Executive Officer of WorldSolarTec, Inc. and is personally responsible for intermediary services associated with formulating public /private partnerships between public agencies and the solar community in the implementation of cost reduction solar renewable energy projects, primarily for large scale public agencies. Greater detailed information on the Companies of Community Systems Associates, Inc can be obtained at the website listed at the end of this profile. Unique to Mr. Krupp's background and skills is his ability to create client representation teams that are capable to attain the client's objectives. He is associated with some of the most notable law firms in California involved in advocating for major public agencies and private entities, and involved in the writing and lobbying of legislation with the California Legislature. He has an intimate knowledge of the legislative process in Sacramento, and has been involved in local political relationship with school districts, community college districts, cities, counties and transit authorities. Of equal importance, Mr. Krupp brings a writing skill that is highly desired by his clients in preparing legislation, grantsmanship, and dealing with the press and news media. He also has the technical ability to establish the public record that is required by his clients to protect their administrative and legal remedies in the public sectors. These skills have enabled Mr. Krupp March 24, 2014 Page 88 of 90 to represent a broad range of public and private clients involved in business, land development and real estate, urban economics, financing, public /private partnerships, and economic development. Mr. Krupp has a unique talent for leveraging situations to attain and advocate client objectives. Currently Mr. Krupp has or continues to provide consulting services to school districts in the State of California and is recognized throughout California as one of the strongest political strategist and school mitigation negotiators in the State. In his capacity, he has negotiated over $1.5 billion in school facilities value to his clients through the structuring of public /private agreements, and has formulate financing programs that have enabled school districts to meet the enrollment demands associated with growth and educational program requirements. Over the past twenty-four years, Community Systems Associates, Inc. has formed over twenty (20) redevelopment projects for public agencies in California; have developed over twenty-five (25) economic development and business revitalization master plans; have prepared over thirty (30) development fee justification evaluations and reports; have represented public clients in negotiations of over $500 million of non - school public facilities; have represented the private development community including, but not limited to, The Edward J. DeBartolo Corporation, Homart Development Company, Chevron Land Development Company, William J. Stone & Associates, Diversified Shopping Centers, Hughes Investments, The Home Depot, and DePahna Hotel Corporation, to name a few; have acted as advisors on such projects as Desert Fashion Plaza, Palm Springs, California; The Grove, San Diego, California; Chula Vista Shopping Center, Chula Vista, California; Indio Fashion Mall, Indio, California; and The Festival at Moreno Valley, Moreno Valley, California; and have developed and implemented numerous successful legal and political strategies on local communities throughout the State of California. Most significant to Mr. Krupp's accomplishments includes having been the consultant, advisor and strategist on the Murrieta decision which has become a Supreme Court precedent with regard to school district development impact mitigation, Califomia Environmental Quality Act (CEQA) implementation, and growth management, and which led in part to the provisions of SB 50. Following the successful consultation and strategy in MURRIETA VALLEY UNIFIED SCHOOL DISTRICT v. COUNTY OF RIVERSIDE which became part of the triad of Mira, Hart, and Murrieta, Mr. Krupp has been sought by school districts throughout the State of California, and is a leader in California Community College and School District financing, facilities strategic planning, development impact mitigation, and public private negotiations with the private development and real estate communities. Having represented over one hundred (100) such districts in the past sixteen (16) years, Mr. Krupp has developed sophisticated computer models for use by his clients, and has provided leadership, expertise, and technical assistance in the formulation of State and local legislation relative to development impact fees, alternative capital facilities financing programs, and long -range master planning and capital improvement plans. To this end, Mr. Krupp has been highly successful in developing public /private strategies that have enabled development to proceed in a viable manner while implementing mutually acceptable impact mitigation programs supported by the community. Mr. Krupp brings a unique style and presentation that is based upon an approach of consistency, transparency, accountability, and core value enabling him to have the respect of political leaders, private business and others in the public and private sectors. His representation is known throughout California. Mr. Krupp is regularly called upon by attorneys and legal firms to provide expert technical and professional advice for litigation purposes, and has presented testimony before local and State Legislative bodies representing his public /private clients, and his professional expertise. Mr. Krupp has also provided educational seminars on relevant professional and technical matters, and has written articles for several nationally recognized periodicals and professional magazines. He is also a motivational and inspirational speaker. Mr. Krupp brings the experience of working with cities and counties, and the private development community following years of consultation in those areas. Mr. Krupp was Director of Community Development Services for Willdan Associates, responsible for the administration, coordination, March 24, 2014 Page 89 of 90 formulation, and implementation of the firm's community redevelopment and business revitalization contract services. His association with Willdan Associates resulted in the management of redevelopment programs for the Cities of Beaumont, Bellflower, Mendota, Orange Cove, Paramount, and San Jacinto; community business revitalization activities for the County of Los Angeles, and the Sacramento Housing and Redevelopment Agency; land use and development planning for the County of San Bernardino; and the administration of State and Federal programs for several contract cities. His background in such areas as assessment districts, alternative financing programs, public /private development negotiations, public relations, and city/county coordination enhances Mr. Krupp's strong community development implementation approach. Mr. Krupp's previous positions include Community Development Manager for the City of Fullerton where, among other responsibilities, he directed the planning, design and engineering of the Fullerton Transportation Center and the Central Business District Improvement Program consisting of over $60 million in public and private investment, the Orangefair Commercial Mall Redevelopment Project of over $40 million in improvements, and various other redevelopment and community development alternative site and urban design elements. In his capacity with the City of Fullerton, he was directly involved with and guided several projects, including land acquisition and Disposition and Development Agreements with such entities as American Savings and Loan Association, Bank of America, and the developers of the Orangefair Mall and Transportation Center; pre - negotiations with California State University at Fullerton, Orange County Transit District, United California Bank, and other property owners aimed at project implementation; negotiated the acquisition through eminent domain of various buildings and properties in the Central Business District and Transportation Center; and administered the City's commercial and residential loan and rebate rehabilitation programs. As Community Development and Special Projects Manager with the City of Cerritos, California, Mr. Krupp directed the preparation and development of specific plans and tenant negotiations for the $75 million Cerritos Auto Square and the Cerritos Town Regional Commercial Center. He was also influential in the preparation of the Cerritos General Plan and the development of the City's Development Code. Mr. Krupp served as Associate Planner with the firm of Wallace, McHarg, Roberts & Todd, Architects and Planners, and participated in the urban design and future development of a "town center" conceptual design plan for Irvine, California, City of Salinas redevelopment programs, and the environmental, social, physical and economic assessment of the SCRTD Rapid Transit System Corridor Study of 1974. Mr. Krupp was a participant on the City of Los Angeles Downtown General Plan Update and the City Revitalization Plan completed in the mid- 1970's. Mr. Krupp's creative, assertive, and aggressive approach to land use techniques, impact mitigation, negotiations, political strategies, community and business development implementation, public /private partnerships, public finance, and business revitalization, have proven successful and serves as evidence of his viable approach to multi - disciplinary project and development implementation. The Companies of Community Systems Associates, Inc. is a balanced structure to provide a comprehensive focus to the changing the economic and political climates, the public and private development arena, and the business world, acknowledging the complexities of the inter- relationships of public agencies, communities, and businesses. Past and Present International Council of Shopping Centers Professional Urban Land Institute Affiliations American Planning Association National Association of Housing and Redevelopment Officials National Council for Urban Economic Development California Association of Local Economic Development California Community Redevelopment Agencies Association California Business Properties Association March 24, 2014 Page 90 of 90 California Downtown Association Association of Corporate Real Estate Executives Commercial Industrial Development Association of Orange County Coalition for Adequate School Housing Internet Access Email: marshall.kruppAvistagechair.com Website: www.vistageusaacom Website: www.coaching%mnosium.com BARRY A. ROSS A PROFESSIONAL CORPORATION 7700 IRVINE CENTER DRIVE, SUITE 710 IRVINE, CA 92618 March 25, 2014 City of Newport Beach City Council 100 Civic Center Drive Newport Beach, CA 92658 Recieved After Agenda Printed Item No. 12 March 25, 2014 949 - 727 -0977 949 - 727.9927 fax barry@rossrealestatelaw.com www. rossrealeslatelaw. com Re: Agenda Item No. 12 - Newport Jewish Center - PA 2013 -206 2240 University Drive, Newport Beach, CA Conditional Use Permit No. UP2013 -023 Honorable Mayor Rush N. Hill, II and Members of the City Council for the City of Newport Beach: My name is Barry A. Ross. I am an attorney. I represent the owner Back Bay University, LLC, as well as the long -term tenant Mobilitie, LLC, of the commercial office building at 2220 University Drive, Newport Beach, which is within the Bay Corporate Plaza Association ( "Association "). I will refer to my clients collectively as Mobilitie. My client opposes the proposed Conditional Use Permit. The Association consists of four similar two -story office buildings and an adjacent parking lot. The building at 2280 University Drive is owned by Elizabeth M. Johnson and occupied by Anza Property Management and several other commercial tenants. The next building at 2260 University Drive is vacant and has been vacant for several years. It is currently listed for sale. It is owned by 300 Wall Street, LLC. The next building at 2240 University Drive, is owned by Stein Holdings, LLC. This is the building that the Chabad Jewish Center ( "Chabad ") wishes to occupy and use as a synagogue. The next building is the Mobilitie property of my client. Mobilitie has been renovating the building for one year and just occupied the renovated building as its corporate headquarters on January of 2014. Mobilitie's business consists of telecommunications. The business has approximately 100 employees and utilizes approximately 100 parking spaces. In addition, Mobilitie's customers and vendors conduct about 10 to 15 visits by car per day. Mobilitie's employees generally work Monday through Friday, including Friday night and Saturday. On Friday night, there are approximately 10 to 50 employees. On Saturday, there are approximately 10 to 50 employees. No one at the City of Newport Beach ( "City") asked Mobilitie about Chabad or its parking requirements or its concern for traffic. Mobilitie never consented or approved the use of Chabad at the Association. March 25, 2014 Page 2 The Planning Commission considered a letter from the Association signed by Donald P. Johnson as secretary /treasurer which states in part: "The majority of the Association members do not feel that the occasional evening or weekend use of the parking area by the Jewish Center is likely to create any overuse or otherwise cause the need for specific allocation of parking among members." Mobilitie, a member of the Association, was never asked by the Association for its input regarding Chabad or its parking requirements or its traffic concerns. Further, Mobilitie was never invited to a meeting of the Association to discuss this issue. There are several reasons why the proposed Conditional Use Permit should be denied. These reasons were stated in my January 23, 2014 letter to the Planning Commission, which is designated as Attachment No. CC -4 to your staff report and hereby incorporated by reference. The Planning Commission never discussed my letter. Additional reasons are described below. 1. THE PROPOSED USE WILL VIOLATE THE COMMERCIAL USE RESTRICTION CONTAINED IN SECTION 11.1 OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ( "CC &R'S ") RECORDED JULY 12, 1983. Section 11.1 of the CC &R's entitled "Permitted Uses" states: "All Lots in the Covered Property shall be used for no other purpose other than administrative, professional and commercial purpose as permitted by the City's Zoning Ordinance, except for the Community Facilities on which there may be placed landscaping and parking areas. All business operations shall be performed and carried out entirely within a Building in such a manner that the enclosed operations and uses do not cause or produce a nuisance to other portions of the Covered Property." My client filed a lawsuit in the Orange County Superior Court against Stein Holdings, LLC and the Newport Jewish Center on February 7, 2014 in case 30- 2014 - 00703360- CU- CO -CJC for declaratory relief concerning the interpretation of the CC &R's. This litigation is currently pending. 2. THE PROPOSED CONDITIONAL USE PERMIT VIOLATES THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The exemption applies only to a project that involves a "negligible or no expansion of an existing use." The City has failed to consider the anticipated future usage by the applicant. The City has failed to consider the impact of emergency vehicle access. March 25, 2014 Page 3 (A) THE EXEMPTION APPLIES ONLY TO A PROJECT THAT INVOLVES A "NEGLIGIBLE OR NO EXPANSION OF AN EXISTING USE." THE CURRENT PROJECT INVOLVES A SIGNIFICANT EXPANSION OF AN EXISTING USE. City planning staff relies on the categorical exemption designated as 14 CCR Section 15301 for the proposition that it is not required to conduct an environmental review of any kind on this project. However, Section 15301 does not apply to this project. Section 15301 states in part: "The key consideration is whether the project involves negligible or no expansion of an existing use." This exemption is inapplicable to the current project because the current project does involve an expansion of an existing use which cannot be described as "negligible." The current use is a commercial office building. Actually, the current use is a mostly vacant commercial office building. The proposed use will involve an expansion of the existing use because the use by Chabad or any synagogue, church or mosque will involve many activities that were not considered by your planning staff, including, but not limited to, a morning religious service, an evening religious service, adult education classes, children education classes, mommy and me classes, and holiday festivities. These activities will be conducted Monday through Friday during normal business hours. These activities will be expected to increase after Chabad begins its operations and markets its availability to the surrounding community. These activities will involve a group of people coming and going during normal business hours. Some of the people coming and going will include children. Your planning staff has failed to consider the activities that Chabad engages in that are described on the Chabad website at www.chabad.org, which shows the calendars for various Chabads by inserting the zip codes. As examples, I am attaching as Exhibits "A ", `B" and "C" to this letter, the Chabad calendars for the Chabad of West Orange County in Huntington Beach, the Chabad of Irvine and the Chabad of Long Beach. The calendars reflect that there is some activity at Chabad almost every day of the week. Further research will reveal that there are more activities than those listed on the calendar on the websites. This research should have been done, but was not done, by your planning staff. Your planning staff s reliance on Section 15301 is misplaced. As the California Court of Appeal stated in the case of Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App. 4th 1257, 1268, a categorical exemption may not be used "as a means to subvert rules regulating the protection of the environment" The court stated: "Rather, it appears that this is an attempt to use limited exemptions contained in CEQA as a means to subvert rules regulating the protection of the environment." This is precisely that which your planning staff is doing. March 25, 2014 Page 4 (B) THE CITY HAS FAILED TO CONSIDER THE ANTICIPATED FUTURE USES BY THE APPLICANT. In Laurel Heights Improvement Association v. Regents of University of California (1988) 47 Cal. 3d 376, the California Supreme Court considered a neighbor's opposition to the relocation of a university bio- medical research facility to a newly acquired building in a residential area. In this case, the applicant, namely the University of California, prepared an environmental impact report in order to consider all the environmental consequences of the project. This situation contrasts with the current situation where the City is relying on a categorical exemption in order to avoid any environmental review of the proposed project. The California Supreme Court ruled that the environmental impact report was inadequate because it failed to consider the anticipated future effects of the project. The Court, quoting from the earlier California Supreme Court decision entitled Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, stated: "The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." As to the issue of future expansion and future usage, the California Supreme Court stated on page 396, as follows: "We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is areasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects." In the present case, your staff report fails to consider the reasonably foreseeable consequence of the initial project, namely the future usage of Chabad as it expands and develops and attracts more congregants. Further, your staff report fails to consider that the future expansion and use of the Chabad will likely change the scope or nature of the initial project or its environmental effects. An analogy to a tree is appropriate. When a sapling is planted near a neighbor's property, there is no consequence to the neighbor of the sapling. However, as the sapling grows into a mature tree, there are issues created for the neighbor, including an expansive root system that may destroy the neighbor's property and tree branches that may be drop leaves and other debris on the neighbor's property. In the present case, the City is considering Chabad as a sapling when it should be considering Chabad as a mature tree. The City is failing to consider the "reasonably foreseeable consequence of the initial project." March 25, 2014 Page 5 Based on the foregoing authorities, the City should consider a further environmental review such as a negative declaration or environmental impact report rather than relying on the inapplicable categorical exemption found in Section 15301. (C) THE CITY HAS FAILED TO CONSIDER THE IMPACT OF EMERGENCY VEHICLE ACCESS. The proposed project is located at the end of a dead end street served by a single lane access. There is only one lane into the project and one lane out of the project. This creates an issue for emergency vehicles such as fire trucks that may need to access the site. This factor has never been considered by your staff. Based on the foregoing, I request that the City Council deny the application for Conditional Use Permit. In the alternative, I request that the City Council continue this hearing so that its staff may provide some consideration to the points presented in this letter and my prior letter dated January 23, 2014 to the Planning Commission. If you have any questions, I will do my best to answer them. Very truly yours, BARRY A. ROSS BAR:es Cc: Client EXHIBIT 66A99 Printed from ChabadHB.com March 9014 tj.vt n Adar I - Adar II, 5774 913urrp to Date M Add Event -ategory Legend Women's Program I JLI Torah Class Chabad of West Orange County • 5052 Warner Avenue • Huntington Beach, CA 92649 • 714- 846 -2285 - All Cateclories - {}Times displayed are for Huntington Beach, CA 92649 G�� Sunday Monday Tuesday Wednesday Thursday Friday Shabbat 23 23 Adarl 24 25 26 27 28 1 Q Halacha Class I QTorah Class I �JII: A Jew in the TehillimClass Shekalim Free World KolelTorat Pars hat Pekudei Chaim ICP 14D, j;j'�5:30 pm L[I 4. 6:25 pm 2 3 4 5 6 7 8 Rosh Chodesh Rosh Chodesh Torah Class pl-I: A Jew in the I Tehillim Class Parshat Vayikra 0HalachaClass I Rosh Chodesh Free World (KolelTorat Society Chaim im U I ��. cY r f� `d �d� !iS: -5:35 pm ,N 6:31 9 10 11 12 13 14 15 QHalacha Class 11Jewish Women's Torah Class 31-1: A Jew in the Fast of Esther Zachor , Circle IL 0 Free World I ParshatTzav Q Senior League D Purim Celebration 7:23 pm j'i6:41 pm eti LCo 47:36 pm, 16 17 18 19 20 21 22 Purim Shushan Purim _Torah Class TehillimClass Parah Q Purim Wild West To Parshat Shemini Co Ch aim 1ri car n I.UJ cd cd j ro� 6- .'.,6:46 pm I:n �; 7:42 pm 23 24 25 26 27 28 29 QHalachaClass QTorahClass I Tehillim Class Hachodesh Kolel Torat Parshat Tazria Chaim 41 ,y,6:51 pm d-ITJJ rf 7:47 pm 30 31 1 2 3 4 5 Q Halacha Class Rosh Chodesh I Tehillim Class Parshat Metzora QTorah Class Kole, To Chaim IV 0V l:7'J lfl tli :J ij_6:57 pm cad'LIJ 4 7:53 pm 913urrp to Date M Add Event -ategory Legend Women's Program I JLI Torah Class Chabad of West Orange County • 5052 Warner Avenue • Huntington Beach, CA 92649 • 714- 846 -2285 Powered by Chabad.org ©1993 -2014 Chabad - Lubavitch Nledia Center. All rights reserved. In everlasting memory of Rabbi Yosef Y. Kazen, pioneer of Torah, Judaism and Jewish information on theweb EXHIBIT 66899 3/24/2014 Calendar of Events I Chabatl of Irvine Welcontel Reeve barn for note sae features. Home I Contact Us I Ask the Rabbi I Donate Search 7 Upcoming Events Synagogue & Seances Donate Chai Tots Hebrew School Chatted Women Youth Adult Education Maps of Locations Mon, Mar 24 2014 - 22 Adar II, 5774 Today In Jewish History Earthquake Saves Rermn Jews from Forced Conversion- 1430 Gaily Study Portions pick here for today's lessons Halach is Timoa pick here for today's tiros Shabbat CandL L,ghling Times Fwd a Ceom. Vi'm10 vide Sign Up rot o,n 14er4letter Chabadlrvine.org n Jewish Practice a Jewish Calendar a Q".,; YOU, Search Morning Mlnyan 7:OO em3� a t March 2014 r u, c(, Event Locatlon: Chabatl of W rte -- 24 Adar 11, 5774 S_ M_ T W T F_ S Dates: Monday, March 24, 2014 to Wednesday, April 23, 2014 iiii Mo'nrly Services 7.45 tornqt�T _ – ::` Q,& Pin Location: Chabad of trvine 2 3 i. 4 5 6 'i 7 8 Previous 30 days Thursday Next 30 days p 7:00 am L(lf f, Eve n t Location: Chabad of lone March 27,2014 9110 11 12 13 '1415 Shabbat Download !Cal 16 17 18 191201121 22 Shabbat limes displayed for Irvine, CA 02604 23 29 25 26 27 28 29_ (ti) are . 30131 Monday Y Morning Minyan 7:00 am;y3 —Ir [] 11 �Today March 24, 2014 i 22 Adar It 5774 q;, Event Location: Chabatl of Yvne March 30, 2014 28 Adar 0.5774 e, Event Location: Chalbod of Hine ®Today ^n Ma'ariv Services pan an< 1 I !; Event Locatlon: Chabatl of hwne Monday 22 Adar 0 5774 hbrch 7:UOan1ag a •(;, Event Lecmlon: Gtabatl of Wine i tAtmh 2d, 2014 2 Tuesday q; Event Location: Chabatl of Wvne 7 :00 am /�} Morning Minyan (`Ti March 25, 2014 23 Adar 45774 e, Event Location: Chabatl of bete Ma'arly Services 7:45 pm(y q; Event Location: Chabatl of Fume r Wednesday Morning Mlnyan 7:OO em3� March 26, 2014 c(, Event Locatlon: Chabatl of W rte -- 24 Adar 11, 5774 tit EVen t Location: Corbett of Yvne 7:00 am�q Uf iiii Mo'nrly Services 7.45 tornqt�T _ – ::` Q,& Pin Location: Chabad of trvine —as' Thursday Morning Minyan 7:00 am L(lf f, Eve n t Location: Chabad of lone March 27,2014 Shabbat M a'orly So rvlcos 25 Adar IL 5774 r(. &eht Locallon: airman of lrvma � f �1. 'F1rjd, us:on lFacebofik Parsbal . Fighting Gossip Ire with Fire G Gossip is charged with F-1 Intrigue. and feels innocuous al the 0me. It's ... Birth and Rebulh The Price of Free Speech Video Target of opportunity: The Beflis Blo0tl Libel In the Beilis Vial of 1913, false accusations of ritual murder were ... The Mechanism of Ownership Sanctifying Time Women Can Modesty Please Take a Stand? Society places great value on externality, consequently, the sacred ... 10 Steps l'owards a More Serene Passover Chalkboard of Life http: //W W,v.chabadi rti ne.org /templatestewnts.htm Jew fsn CaleMar „j CerMk Lighting jrj Dam Converter Birthday Bar /Bat Mtevah Yahrtxed G) Zrmnim I 3 113 MP'.,Iv Services 7:45 pro j c(, Event Locatlon: Chabatl of W rte Friday Morning Minyan 7:00 am�q Uf March 28, 2014 26 Adar If 5774 p. Event Location: Chabatl of hvme Frlday Mght Services 6:30 pm ��♦; 11il Light Candies at 6:50 f, Eve n t Location: Chabad of lone P. Shabbat M a'orly So rvlcos March 29, 2014 27 Adar If 5774 Ma'nm services begin 15 minutes after Shaboat ends Statham Services 10:00 am<y%t Q; Eve it Location: Chablis of Irvine ♦, Shabbat Ends 7:48 pm Sunday Morning Minyan 8:15 am(-4 " March 30, 2014 28 Adar 0.5774 e, Event Location: Chalbod of Hine Ma'ariv Services 7:45 pm<; CB !; Event Locatlon: Chabatl of hwne Monday Morning Minyan 7:UOan1ag a March 31, 2014 29 Adar it 5774 q; Event Location: Chabatl of Wvne Mil'ariv Services 7:45 pm e, Event Location: Chabatl of tine Tuesday Morning Mlnyan 7:00 ano q [.f, April 1, 2014 1 Mssaa.5774 q;. Event Location: Cashed of Irvine Mo'nrly Services 7:45 pm/ty �} q;, Event Location: Chabatl of Wine Jew fsn CaleMar „j CerMk Lighting jrj Dam Converter Birthday Bar /Bat Mtevah Yahrtxed G) Zrmnim I 3 113 3/24/2014 Calendar of Events I Chabad of Irvine your Quesbonc Wednesday Morning Minyan 7:00am Why Is Elijah the Prophet April 2, 2014 Invited to the Seder? 2Mssan, 5774 ii&act Location: Chabad of Wne There are multiple reasons Ma'arly Se rvices 7:45 pm and meanings behind the age- old badiAon of V Event Location: Chabad of Irvine What's the Future of Judaism? Thursday Morning Minyan 7:00 am <�1 (,�f April 3, 2014 3 Nissan,. 5774 t, Event Location: Chabad of Irvine Ma'ariv Services 7:45 pmlyl N, Eve at Location: Chabot of 6vme Friday Morning Minyan 7:00 tunz1 April 4, 2014 4 Mssan.5774 p; .Evert Location: Crated of yvwo Friday Night Services 6:30 pm -.� L At) Light Candles at 6:56 q; Eotnt Location;. Chained of Irvine P. Shabbat Ma'ariv Services April S, 2014 5 Mssan, 5]]4 Ma'ariv services begin 15 causes after Shabbat ends Shabbat Se reices 10:00 em i f Shabbat Ends 7:52 pm T Event location: Chabad of Irvne Sunday Morning Minyan 8:15am<45 April 6. 2014 6 Nissan, 5774 Q;; Event Location: Chabad of Irvine Mo'arly Services 7:45 pmli t„i y;,.En nl Location: Dished of r, ate Monday Morning Minyan 7:00 am <�% Cif April 7, 2014 7 Nkser, 5774 Q;. Event Location: Chattel of r,we Ma'arly Services 7:45 parr i LT' p; Event Location: Coated at vice Tuesday Morning Minyan 7:00 am <,� t(�4 April 8, 2014 8 obtain, 5774 { Event LOCauon: Chabad of Irvwe Ma'ade Services 7:45 pan 0,1 y'� Event Location: Chabad of ymne Wednesday Morning Minyan 7:00 am<`} April 9, 2014 9 Nissan, 5774 Event Location;. Chahad of Irvine Meade Services 7:45 pm<4 .j;, &am Location: Cliabad of Irvine Thursday Morning Minyan 7:00 am {} April 10, 2014 10 Masan. 5774 $, Event Location: Chabad of hvme Ma'ariv Services 7:45 an y;, Eve at Location: Chabad of Irvine Friday Morning Minyan 7:00 am C(„f April 11, 2014 11 Mssan, 5774 Q;. Event Location: Chabad of Irvine Friday Night Services 6:30 pm <4mt Light Candles at 7:01 u; Event Location: Chabad of erne Pro Shabbat Me'ariv Services l: April 12, 2014 12 Mssan, 5774 he'ariv services begin 15 ninutes after Shabbat ends Shabbat Services 10:00 am <1}�r1'. Shabbat Entls ]:5] p m a; Event Location: Chabad of Irvine Sunday Morning Minyan 8:15 arnO ' April 13.2014 13 Mssan, 5774 Event LOcation:Ctabad of Irmo= http: /A, .chabadirNne.org /templates /ewrits.htm 2/3 3/24/2014 Calendar of Events I Chabad of Irvine Ma'arly Services 7:45 pml(rT y: bent Location: Carbon of W Ise Monday Evening Services 6:30 bra .J R. April 14, 2014 14 Nssan.5774 is Event Location: Chalead of Irvu1e ljj Light Candles at 7:03 pm Tuesday Passover Services 10:00 vin April 74 15 Nation, Sar, 5 511J 7i. fi'ent Location: Chabad O Irvine Evening Services i 7:00 Vm(y'[�, i i; Event Location: LTaaad of wine f Passover Community Sailor 8:00 pro .} ' Enjoy the holiday of freedomw Alt lamry and friends by our inspirational Passover Seder. RSVPA fv1JSP. (: Event Localfon: Chabad of Irvine qij Light Canoes ®kbre in /orrre0on after 8:00 pm Wednesday Passover Services 10:00 am�F April 16, 2014 16 hissan. 5774 1: Event Location: Chahi d of Yvan¢ Evening Services 7:00 pm,4 (✓ {;, Event Location: Chahar of hvine �� lialitlay Ends 8:01 pm Friday Friday Mghl Services 6:30 pm,��a Apri118, 2014 18 Nssan, 5174 (: Event Location: Chabatl of Irvine jy Light Candies at 7:66 P. Sunday Morning Minyan 8:15 Apri120, 2014 20 Nssan, 5774 ;:&ant Location: Chatrad of Irvine !tj� Light Candles at 7:08 P. Monday Passover Services 10:00 am ('j1 P� April 21, 2014 I 21 Ncsan. 5774 p: Event Location: Chased of Ivan, t boning Sarvlces 6:45 pm <�% j�Lght Candles Cant Location: Chabad of Irvine after 8:05 pm 1 Tuesday Passover Services 10:00 on Apri122, 2014 22 tactics, 5774 [:&art Location: Chiond of Irmne I Ylzkor Services 11:45.so j: &e of Location: Chabad a nine Moshiach Seudah 6:30 pm;(✓4 , Event Location: Chabod of Moe , 1. Holiday Bids 0:06 pm Wednesday Morning Minyan 7:00 am<1 April 23, 2014 23 Nssan,5774 ,t. Event Location: Cloahid of Irvine Ma'ariv Services 7:45 Fee 49 f� '( Event Location: Chabad of wine 4 Prevbus 30 days Ncxt 30 days P Chabad of Irvine .5010 Barranca Parkway- Irvine, CA 92604 .949- 786 -5000 Powered by Chabad.org 011993 -2014 Chabad- Lubavitch Media Center. Al rights reserved. In everlasting memory of Rabbi Yosef Y. Karen. pioneer of Torah, Judaism and Jewish information on the web http: /Iv .chabadiNne.org /templates /awnts,htm 313 EXHIBIT "C" 312412014 Calendar of Events I Shul By The Shore HOME! ABOUT US. DONATE Welcome! Please login for more one features I ASK THE IIABB1 I CONTACT US Wa • 5ne +b•, p,�c,,,• snmeymmre nore .orgnaewmsnrramm++vewsnuamemoru + :abut( Js Ir1. Your Search Search: + R4aaiAnL.s f-" tells stories relevant to their daily Was. L,ntt.evu Dates: Monday, March 24, 2014 to Wednesday, April 23,2014 YnuIu bar 3801 EN -411ow Long Beach. CA 90815 Email • sl e:,� `J Previous 30 days Next 30 days 1), imiaap 2 Download Cal (.5, • F: cols 5 6 7 Adrp catrn.:4,up © Shabbat times displayed are for Long Beach, Callfornla USA . ib:nu•x sc•vnd Tuesday -J 3 in l Women's Evening 7:30 pm -9:00 P. 1,LA • 11 rNM I 111% March 25, 2014 23 Adar U. 5774 An Evening with a talk on Jew ish w omen by Chaya Leah & Book • SC: �.'r +: un'rn. 18 Exchange as w ell as bangles& beads! Oh r.L 22 f; Event Location: Satin Bane 0P.1ep &O4e"m,x + x9.911 L•: rt,> 25 4300 Litre Long Beach. CA 90807 • rtn:u c.:.IL ^no: 29 30 31 Wednesday Kabbalah 101 12:00 pan. 1:00 pmq(�i • D' °61' March 26, 2014 JU • t4o mil Ryv.:.a 24 Adar 11. 5774 Navigate your soul as we study the ancient teachings of Jewish Tenn mystics and their contemporary applications to cur modern Wes. Led by Rabbi Abba Fareheler ✓,, Event Location: Alpert JCC 0M +p &Directions 3001 E Willow Long Beach, CA 90815 • 5ne +b•, p,�c,,,• Ei Hebrew School Enrichment 4:30 pm -6:00 pm<j March 28. 2014 For students in Grades 4th through 7h. Additional Hebrew Search: Studies & Hebrew Language. Rabbi nominator gives lessons & Search tells stories relevant to their daily Was. Uj]Llohl Candles a16 :52 C;, Event Location: Alpert JCC OMap c Olrnc4om Mailing Lid: 3801 EN -411ow Long Beach. CA 90815 Email "SBTSJawish University 7:30 pm -9:00 pm<j� _ Spring 8 Classes 30vurses taught by Rabbi Porelmrler Kabbalah - Soul Pow at 3 classes History - Biblical Human 3 ctas sea The Art of Royer 2 classes Cast: Sao for Course or S15 per Class susan@shulbytheshore.org �,; Event Location: Seaport FrUmm Hotel 0 M;xx & Dg ?Cocos 6400 East P.C.H. Long Beach, CA 90803 Friday Lp Shabbat Evening Service 6:30 pmZ�fr March 28. 2014 26 Adar II, 5774 Join Rabbi Perelmrter for a one hour soul cleansing. energy M reviving. rejuvenating Shabbat Service Uj]Llohl Candles a16 :52 fi.E`em Location: Seaport lAirinn Hotel 0:4 ap ,pit caone S 6400 East P.CH. Long Beach CA 90803 Shabbat L& Morning Mlnyan 9:30 am. 10:00 am <1 ( March 29, 2014 27 Adar It 5774 .';Event Location: Seaport Marina Hotel OMrp3Dnxctian: 6400 East P.C.H Lang Beach, CA 00303 WTimeless Lessons of the 10:00 am -11:00 am( Torah Cass gNen by Rabbi Abba FErebruter on he w catty Parsha's relevance to our Wes. }�, Event location: Seaport Mar'vra Fblel ®)dap 2, Directions 61006x1 P.CH Lonq Beach. U 90603 Youth Program 11:00 am- 12:00 pm-�I� s Youth Serves w BID Mel, & Yltzi C_ Event Location: Seaport Mn mu Hotel O Map & 0u acacr,: 6400 East P.C.H Long Beach. CA 90803 La Torah Service 11:00 pmx9 5 Torah Reading and Service w Ih Klddush follow ing f,. Event Location: Seaport Nhona Holul Oldap �: Dir ctu.nx 6400 East P.C.H. Long Enron, CA 90003 ( Shabbat Ends 7:48 om hHp: /An .shulbytheshore.org /templates /elefds.htm tt c March 2014 1 w S M T W T F S 2 3 4 5 6 7 8 9 10 11 12 • 13 14 15 16 17 18 19 1 20 21 22 23 24 25 26 27 28 29 30 31 JU Today.— ® Today n^ i Monday. 22 Adar II, 5774 F March 24, 2014 I.=1 Calendar Toes i LLB Jewish Calendar i51 Candle Lighting SOW Dale Converter Birthday ! �. Bar /Bat Mtzvah Yahrtzed Zmanim 1/5 3/24/2014 �Unudy March 30, 2014 28 Adar II, 5774 Calendar of Events I Shul ByThe Shore 1.9 Mlnyan d:uu am -"� ra. Weekly Mnyan ¢j, Event Location: Seaport Marina Hotel 6400 Fast P.C.H, Long Beach. CA 90803 Or4ap & cn.'av6s Hebrew School 9;30 am- 11:30 am !� :7- Open to Children Kindergarten though 7th Grade. Includes: Eiposure to classic Jewish Texts, observance,h "story & Jew is In values. Modern Hebrew Language w ith Slate -of -art curricula.Wonderful experienced, non- judgmanlal teachers. Special Programs & field Trips. Sauget MVvnh Training, No Synagogue membership required. e,,, Event Location: Alpert JCC 0 I4,pG Di, eafl ohs 3801 EWillow Long Beach. CA 90015 Wednesday 1-�- -_I Kabbatah 101 12:00 pm -1:00 pro April 2, 2014 2 Nissan, 5774 Navigate your soul as we study the ancient teachings of Jewish mystics and their conleoporary applications to our modern lives. Led by Rabbi Abbe Pbrelou ter lb Event Location: Alpert JCC O r4 ap & oneca.,.r 3801 E Willo',c Long Beach. CA 90015 ne liebrew School Enrichment 4:30 pm- 6:00 pm <L7-- For students in Grades 4th through 7th. Additional Flebrew Studies & Hebrew Language. Rabbi Pereltruler gees lessons & tells stories relevant to their daily lives. jj Eve a t La catio n: Alpert JCC OMnD C ". Dnecums 3801 E Willow Long Beach, CA 90815 W SBTS Jewish University 7:30 pm -9:00 pm,,�i Spring 8 Classes Courses taught by Rabbi Pevel uler Kabbalah - Soul Pow er 3 classes Hstory - Biblical Wipes 3 classes The Art of Prayer 2 classes Cost; $80 for Course or $15 per Class susan @5hulbytheshore.org g;; Event Location: Seaport Marina Hotel Ortlap S D,rectmns 6400 Fist P.CH Long Bench, CA 90803 Friday 1 C Shabbat Evening Service 6:30 pm 9-' IS April 4, 2014 4 Nissan, 5774 Join Rabbi Perelouter for a one hour soul cleansing, energy reviving, rejuvenating Shabbat Service j�,; Event location: Seaport Marina Flotel O r4 ap & D'6ectwns Limht Candies at 6:57 6400 rest P.G.H. long Beach. CA 90803 Shabbat pMorning Mlnyan 9:30 am -10:00 amC5 f April 5, 2014 5 Kssan.5774 g'; Event Location: Seaport Marina Mlel O61ap'MDvach,)ns 6400 Fast P.C.H. Lona Seach, CA 901303 Wimeless Lessons ofthe 10:00 am -11:00 am'195t Torah Class given by Rabbi Abbe Parel ruler on the w eekly Parshe's relevance to our lives. q' Eye at Locatlo n: Seaport Marina Hotel O C1 pp & D eceo ns 6400 East P.C.H. Long Beach. CA 90803 ;t; Youth Program 11:00 am- 12:00 pm %t �T Youth Service w ith Meir & YiW .T Event Location: Seaport Marine lintel Ohl , &Dt'lla.ns 6400 East P.C.H. long Seach, CA 90803 1 4 Torah Service 11:00 pm Torah Reading and Service with Kdtlush fallowing pp Event Location: Seaport Warina Hotel O plop & Uireuions 6400 East P.C.H. Long_ Beach, CA 90803 1< Shabbal Ends 7:50om Sunday pb Mlnyan 8:00 am^;�., April 6. 2014 6 Nissan. 5774 Weekly Mnyan y;, Event Location: Seapoq Ivbrina Fblel OMap LDn +teams 6400 Est P.C.R Long Beach CA 90803 Q Hebrew School 9:30 am- 11:30 am.53IS Open to Children Kindergarten though 7th Grade. http:/Awvw.shulbytheshore.orglterrplates/ewnts.htm 215 3/24/2014 Calendar ofE%ents I Shul ByThe Shore includes: Exposure to classic Jewish Texts, observance,h'slory & Jewish values. Modern Hebrew Language with Slate -of -eft Thursday curricula.Wonderful experienced, non - judgmental leachers. April 10, 2014 Special Programs & Fold Trips. Bar /Bat Mtzvah Training. 10 Msssm,5774 No Synagogue rrembersh'ip required. e, Event Location: Alpert JCC Orrlap& D,.eco,,ns 3601 E Willow Long Beach. CA 90615 Wednesday leabbalah 101 12:00 pm- 1:00 Pan {� April9, 4 9 Nissan, 5774 , 57 Navigate your soul as w e study the ancient teachings of Jewish Friday mys tics and their contemporary applications to our notlern lives. April 11, 2014 Led by Rabbi Abbe Perelmrler 11 %see, 5774 C. Eve n l Locative n: Alpert JCC Q1 +Lp 2, GOecticns 3801 EYellow Long Beach, CA 90015 ED Fle Is raw School En rich in eat 4:30 pre '6:00 pm,� ( ,ij] Light Candles at 7:02 For students in Grades 4th through 7th. Additional Hebrew lim Studies & Hebrew Language. Rabbi Perelrruter gives lessons & Shabbat !ells stories relevant to their daily lives. April 12, 2014 ® Eve tit Location: Alpert JCC OH,p&DVettions 12 MSSan,5774 3801 EYJdluw Long Beach. CA 90015 N SETS Jew is h !hive rat ily 7:30 pm -9:00 pm Can Spring 8 Classes 3 Courses laughtby Rabbi Perelaniter Kabbalah - Soul Pow era classes History - Biblical Herces 3classes The Art of Bayer 2 classes Cost; $80 for Course or $15 per Class http: /Mmv.shulbytheshore.org /templates /e�ts.htm 315 susan @shulbytheshore.org : j. Eve nt.Location: Seaport Marina Hotel Oltlap'« Ci rectmnr 6400 East F.C.H. Long Beach, CA 90003 Thursday 181 Last Day to RSVP for Seders April 10, 2014 10 Msssm,5774 RSVP to susan @shulbytheshore.org or call 562- 621 -9828 >�j) Last Day to s e n d in Sale of Chom a tat 4:00 am-?iM send in or fax f:582- 621 -9858 ,$: Event Location: Shut By The Shore Friday Lp Shabbat Evening Service 6:30 pm.9 t_T April 11, 2014 11 %see, 5774 Join Rabbi Porelnuler for a one hour soul cleansing, energy reviving, rejuvenating Shabbat Service 0;; Event Location: Samporl Marina Hotel m914p S DlreCtl0ns ,ij] Light Candles at 7:02 6400 Fast PC H. Long Beach, CA 90803 lim Shabbat 1.9 Morning Mlnyan 9:30 am. 10:00 ame5%I April 12, 2014 12 MSSan,5774 y;, Event Location: Seaport lAsrina hotel O M xp •4. Deectione 6400 East P.C.H. Long Beach. CA 90803 WITlmeless Lessons ofthe 10:00am- 11:00am(>IS- Torah Class given by Rabbi Abba Pereli cater on the weeldy Parshs's relevance to our lives. e;; Event Localio n: Seaport Marina Hotel 014 a & Directions 6400 Bost P.C.H. Long Bench, CA 90803 U Youth Program 11:00 am- 12AO Pat Youth Service w Bh Moir & Ynzi s;, Event Location: Seaport Nbiti m hotel OV,,p & Direarons 6.100 Gore P.C.H. Long Beach, CA 90803 L Torah Service 11:00 Pei Torah Reading and Service with Kiddush following h; Event Location: Seaport Marina Ibiel Ohtep &L i,actin, 6400 East P CH, Long Beach. CA :90803 ,r Shabbal Entls 7:59 om Sunday [_Lt Minya" 'B:00 am<f .rim April 13, 2014 13 lesson, 5774 WeeMy Mnyan >;, Event Location: Seap.h tvarina Iblel Ornep & Diracittn- 6400 East P.C,H. Long Beach, CA 90803 http: /Mmv.shulbytheshore.org /templates /e�ts.htm 315 3124/2014 Calendar of Events I Shull By The Shore Monday -,0 Comm unity Seder 7:30 pm1y`f April 14. 2014 A seder designed for farefes with children 14 Nissan. 5774 Conmunity Seder: Monday, April 14, 7:30 pm Explore the Kabalistic insight on the number four: Four cups of wine, four sons, four questions and four types of . freedom g1j Light Candles Experience the Nberation and Ireedotnof Passover. after 8:02 om Discover the Seder's relevance to today's nedern Jew. Wednesday Cost: S40 1parson RSVP by 4110 susan @shulbytheshore.org April 16, 2014 O« Event Location: Seaport MVina Fbtel erhfp&D,ecuohr N] Light Candles at 7:05 6400 East PC H. Long Beach, CA 90803 Big tir, Event Location: Seaport Mamma Hntel eMap&Dtrecgone Tuesday l a Morning Service 1020 am rr,! (r%, April 15, 2014. 15 Hssan.5774 Morning Service 10:00am w lth kiddush to follow April 18, 2014 (;,Event Location: Semlort IvIanno -ofel er•lap CDbectiwn 18 Wsan, 5774 6400 Cast P.C.Ii. Lung Beach CA 90803 )Family Sutler 5:00 pm- 7:00 PM19 ai I r uu v — — o.,,o __ http: /Awyw.shulbyheshare.org Iternpl ateslevents.hti n 4/5 Family Seder: Tuesday, April 15,2014 5:00 - 7 :00 pm A seder designed for farefes with children Cost: Adult S40. Child S20. purely Max. $180 .Please RSVP by April 10, 2014 susan @shulbytheshore.org . ([ Event Location: Seaport Marine F Iel eMap @Directives g1j Light Candles 6400 Fast P.CPL Lone Beach. CA 90803 after 8:02 om Wednesday LMOrning Service 1090 am <u (•fT April 16, 2014 16 Nissan, 5774 horning Service 10:00am followed by kiddush tir, Event Location: Seaport Mamma Hntel eMap&Dtrecgone 6400 East P.C.H. Long Beach, CA 90803 f FblHav Ends U2 om Friday LO, ShabbaiEvening Service 6:30 pan ,LV April 18, 2014 18 Wsan, 5774 Shabbat eveing service wN1 Rabbi Abbe Fereltruter q: Eve in Locatio no Seaport lvtmna Fblel e143p&D *ireaion_ Light Candles at 7:08 6100 East P.C.H. Long Beach, CA 90803 Shableat L Morning Service 10:00 arri April 19, 2014 19 Nissan, 5774 Mooring Service with Rabbi Abbe Perelnuter kgdush to follow y, Eve a( Location: Seaport Werina Hotel eMip 2Dlrectians (t Shableal Ends 8:05 om 6400 East P.C.H. Long Beach. CA 90803 Sunday r Mayon 8:00 ani 5 April 20, 2014 20 Nissan. 5774 Sunday Warning Mayan q; Event Location: Seaport Marine Holei OF1;p E,Mr ?rtienz d17 Light Candles at 7:09 6400 East PC H. Long Beach. CA 90803 gain Monday Lq Morning Service 10:00 am 71 .April 21, 2014 21 Nissan, 5774 Last 2 days services will be held at the Perelmlters Fiore 1031 E Anelia Dr, L.B. Service at 10:00an iih kiddush to follow p;, Event Location: The Parel auter's Foie eMap 2 Daarunhs Ujy Light Candles 1031 EAlrelia Dr Long Beach, CA 90607 after 8:07 gm Tuesday L Morning& Yli Service 10:00 sai r-' April 22, 2014 22 Nissan. 5774 Meaning Service at The Pereleader's Fbne jj. Eve nl Location: The Porclruter's Home (9 Map f, Directions 6400 East PC H. Long Beach. CA 90807 1.9 Ylzkor Service 11:00 am ei�Lf Yizkor Service for the departed led by FAbbl Abbe FErelan er Event Location: The perelmder's Home 0M,p A DnecHOns 1031 EAm is or Long Beech, CA 90807 L@ Mincha Service 6:00 pan Mncha Service at the Forelmrters Y. Event Location: The Rear uter's Hung eMap 1; Directions 1031 EAneha or Long Beach. CA 90807 ZV Meal of Moshiach '6:30 pm- 8:07 pm Special Meal to Closeout Passover @ the hate of the F2relltuter's _ Event Location: The Paholrrulerc 10 Map & Davctiuns 1031 EAneha or Long Beach CA 90807 I r uu v — — o.,,o __ http: /Awyw.shulbyheshare.org Iternpl ateslevents.hti n 4/5 3/24/2014 Calendar of Events I Shul By The Shore s nu,,Y ,, Wednesday Kxbbalah 101 12:00 Pm- 1:00 Pan April 23, 2014 23 Nissan. 5774 rgvigale your soul as we study the ancient teachings of Jewish rm/slics and their contemporary applications to our modern Wes. Led by Rabbi Abbe Pleelrmnr y; Event Location: Alpert JCC 014 ep & Duectlonr 3001 E Willow Long Beach. CA 90015 11 Previous 30 days Next 30 days � Seal By The Shore - 5855 Maples Plaza Suite 315 - Long Beach, CA 90803 -562- 62i-9828 Pov+ered by Chpbad.org 4 1993 -2011 Clabad- Lubavnch hlndin Center. All rigne reserved. N evorlasling ncmury of liabbi Yosef Y Kazan, pioneer of lbrah. JedlIbuland Jewish inlonrnlion on the w eb hitpJAm Nw.shulbytheshore.orgttelnplalP /ewnls.htm 515 ,,RECEIVE AFTER AG •N0 PRINTED„ LAW OFFICES OF PHILIP A. LEVY A Professional Corporation 20 RAINBOW LAKE IRVINE, CALIFORNIA 92614 TEL: (949) 861-4114 City of Newport Beach City Council 100 Civic Center Drive Newport Beach, California 92658 March 25. 2014 Re: Response to the Appeal by Mobilitie from the Planning Commission's Approval of the CUP Application of the Newport Jewish Center FAX: (949) 861 -4966 To the Honorable Mayor Rush N. Hill, 11, and Members of the City Council for the City of Newport Beach: I have been asked by the Newport Jewish Center to review Mr. Ross's most recent submission on behalf of Mr. Gary Jabara and his company, Mobilitie. LLC, to the City Council and respond thereto. This letter follows. Preliminarily,.although Mobilitie is the appellant and has the burden to demonstrate that the Planning Commission abused its discretion by granting the CUP application of the Jewish Center. Mobilitie waited until the very day of the hearing to submit Mr. Ross's letter of this date. Nevertheless, the Jewish Center believes the record before the City Council as augmented by this letter and the Ietter of this date by Mr. Marshall Krupp dispose of Mobilitie's last minute submission. The Newport Jewish Center therefore waives this defect created by Mobilitie's dilatory conduct of its appeal and further respectfully requests that Mobilitie's late submission not incline the City Council to delay its decision in this matter. 1. Mobilitie Has Failed to Provide the City Council With Any Evidence to Support Its Appeal, and Has Waited Until the Day of the Hearing to Provide Its Written Argument in Support of Its Appeal. The Jewish Center notes that Mobilitie has waited until this last minute to submit its unsupported argument in support of its appeal. Mobilitie's submission would have effectively denied the Jewish Center the opportunity to provide a complete rebuttal of Mobilitie's assertions had Mr. Ross presented anything new in his letter of this date. As Mr. Ross's March 25, 2014 letter does not include any new material it should be seen as nothing more than an invitation to the City Council to continue the hearing and delay its decision. The Jewish Center respectfully submits that Mobilitie's untimely submission of arguments it has already made and "evidence" which is not entitled to any credence should not result in any delay of the disposition of this matter. 2. Mobilitie's Appeal Is Unsupported by Any Evidence But Instead Relies on False Accusations Against the Jewish Center. Mobilitie's submission in support of its appeal does nothing to alter the necessary conclusion that Mobilitie's objections are spurious and without evidentiary support. Mobilitie's submission does nothing to alter the necessary conclusion that the Planning Commission's approval of the application ofthe Jewish Center was correct. In support of Mobilitie's appeal, Mr. Ross again submits an unsubstantiated and incorrect statement that Mobilitie uses 100 of the 255 spaces of the 4 building complex. Although Mobilitie has had since January to conduct a parking study, it has failed to do so. The Jewish Center, on the other hand, has retained RK Engineering Group to conduct a parking study a copy of which has already been forwarded to both the City Council and made available to Mr. Ross. The RK Engineering Group observations contradict Mobilitie's unsupported contentions concerning its parking usage as well their contention as to the usage by the Jewish Center. The RK Engineering Group included the following in its conclusions: Based upon the weekday and Saturday observed parking demand counts, the inclusion of code required parking spaces for the vacant building and the proposed hours of operation of the Newport Jewish Center, the parking provided onsite would be sufficient to accommodate the peak parking demand of the proposed use. Based upon a review of the project's trip generation it will not be excessive from a traffic standpoint in comparison to the site's previous general office use. The Jewish Center has repeatedly invited discussion with Mr. Jabara concerning his concerns but Mr. Jabara refuses to even respond. 3. Mobilitie's Arguments Concerning the CC &Rs Are Irrelevant and Incorrect. -I)- The Conditions, Covenants and Restrictions have long been held under the laws of the State of California to be equitable servitudes which run with the land. These servitudes are enforceable to the extent they are reasonable and do not conflict with public policy. The CC &Rs are treated as creating contractual rights. Unless the parties agree otherwise, only a court of competent jurisdiction may resolve a dispute concerning the interpretation, enforcement or determination of the rights and obligations of the parties to CC &Rs concerning those servitudes. Nevertheless, at the time the CC &R's were adopted (and they have never been amended), the very use proposed by the Jewish Center was explicitly permitted under the Municipal Ccode and, by express reference, as well as by necessary implication, allowed under the CC &Rs. Therefore, the sole reason for an application for approval by the City is as required by pursuant to a CUP and not pursuant to the CC &Rs. 4. Mobilitie's Argument Concerning the Impact of the Jewish Center on Access of Emergency Vehicles Is Without Rational Force. How would the use by the Jewish Center negatively effect access of emergency vehicles to the complex? The Jewish Center has demonstrated that its use of the property does not burden the available parking to any extent that is greater than its previous use or its anticipated use. [See Study and Conclusions of RK Engineering.] 5. Mobilitie Repeats Its False Assertions Concerning the Use of the Property by the Newport Jewish Center. Mobilitie has been repeatedly informed that its accusations that the Jewish Center will have a school, permit its children to play in the parking lot, have 3 services a day, are simply and completely false. Mobilitie points to the activities of the Huntington Beach Chabad and Irvine Chabad to support its argument that the Newport Jewish Center will provide similar services. Moblitie's conclusion is simply false. Mr. Ross received the letter of Philip A. Levy of March 19, 2014, to Mr. Ross in which Mr. Ross was informed that his accusations concerning the actual and intended use of the property by the Newport Jewish Center were false. Nevertheless, Mr. Ross persists in his false accusations. The programs offered by Huntington Beach and Irvine Chabads are not evidence that the Newport Jewish Center will ever provide the same pallette of services. Mobilitie could just as easily have pointed to other Chabad centers which offer fewer services of the kind and low- intensity as offered by the Newport Jewish Center. In the event, Mobilitie ever believes that the Newport Jewish Center has exceeded the conditions set out in the CUP, Mobilitie has its remedies including application to the City Council. 6. Conclusion At this point what is clear is that Mobilitie does not want the Jewish Center as a neighbor. Although Mobilitie cloaks its desire in various pretenses, its desire not to share the complex with the Jewish Center is itself inconsistent with public policy and should be rejected. Despite Mobilities hostility to the idea of sharing the complex with the Newport Jewish Center, nevertheless, the Jewish Center will be an excellent neighbor, with an extraordinarily light parking and traffic'foot print.' Mr. Jabara has rejected every opportunity to set out his actual concerns. He has rejected every offer to meet and discuss an informal resolution to his concerns. The Newport Jewish Center respectfully requests that this Honorable City Council reject Mobilitie's frivolous appeal from the Planning Commission's approval of the Jewish Center's application for a Conditional Use Permit concerning its property. Thank you. LAW OFFICES OF PHILIP A. LEVY and LAW OFFICES J2PY STEPHEN ABRAHAM STEPHEN ABRAHAM ME "RECEIVED AFTER WENDA PRINTED:" OUR;, 1 � IfsI-+y111 CSA STRATEGIESa� March 25, 2014 Honorable Mayor and Members of the City Council City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Subject: Newport Jewish Center Appeal of the Planning Commission's Decision to Approve Conditional Use Permit No. UP2013 -023 for 2240 University Drive (PA2013 -206) Dear Honorable Mayor and Member of the City Council; This letter is submitted on behalf of the Newport Jewish Center as additional written testimony prepared by CSA Strategies in support of the Conditional Use Permit No. UP2013 -023 application ( "CUP ") as filed by the Stein Holdings LLC and the Newport Jewish Center ( "Newport Jewish Center ") for the building located at 2040 University Drive, Newport Beach, California ( "Building "). It is additional written testimony to my letter to the City Council dated March 24, 2014 and which is a part of the public record and incorporated herein by reference. I am in receipt of the letter dated March 25, 2014 from Mr. Barry Ross, legal counsel to Back Bay University LLC, and Mobilitie and which was addressed to the City Council. It is noted that Mr. Jabara is the authorized agent for service (and possibly manager) for Back Bay University LLC and may he the sole member of the LLC. He is also the Chief Executive Officer of Mobilitie LLC and is a partner and the primary financial investor in Villa Real Estate of Newport Beach. My purpose for providing you this letter is to provide my professional and technical review of the letter offered by Mr. Ross as a consultant to the Newport Jewish Center. On behalf of the Newport Jewish Center, I have reviewed the letter from Mr. Ross. As with his prior letter of January 23, 2014, he has again offered allegations and assertions that are false, factually incorrect and erroneous. I understand that the public hearing is to enable the City Council to obtain data, and quantitative and/or qualitative analysis supported by facts that will enable the City Council to make an informed decision based on all of the evidence in the record. With that said, I would like to address the points Mr. Ross states in his letter and which represents the position of Mr. Jabara. Mr. Ross states: `...The business has approximately 100 employees and utilizes approximately 100 parking spaces. In addition, Mobilitie's customers and vendors conduct about 10 to 15 visits by car per day. Mobilitie's ■ EXCELLENCE FACILITATING STRATEGIC DECISION ■ ■ 3367 Corte Levanto ■ Costa Mesa, CA 92626 ■ 714 - 838 -9900 ■ 714-838-9998(fax) ■ ■ www.esacompanies.com ■ March 25, 2014 Page 2 of 7 employees generally work Monday through Friday, including Friday night and Saturday. On Friday night, there are approximately 10 to 50 employees. On Saturday, there are approximately 10 to 50 employees..." There is no evidence that has been submitted by Mr. Jabara, Mr. Ross or any other representative of Mobilitie that supports this claim. On the contrary, the RK Engineering parking and trip generation study clearly show that the Mobilitie facility has not shown the demand for 100 parking spaces. Even if Mobility had 10 -50 employees on Friday night and Saturday, the RK Engineering study shows that there is more than adequate parking to meet the demands of the Newport Jewish Center and the other tenants of the Bay Corporate Plaza complex, including Mobilitie. It is also noted that at a recent meeting of the Association, Mobilitie's property manager Ms. Liana Almazan and CPA Chester Bragado both stated that Mobilitie has between 40 and 45 employees. Observations of the Mobilitie building on Friday nights and Saturdays appear to suggest that the comment offered by Mr. Ross is factually incorrect. This is discussed in the RK Engineering Study and also addressed in my written testimony of March 24, 2014. Mr. Ross states: "...No one at the City of Newport Beach ( "City") asked Mobilitie about Chabad or its parking requirements or its concern for traffic..." As noted in my prior written testimony of March 24, 2014 numerous attempts were made by the Newport Jewish Center, the representatives for the Newport Jewish Center and others to seek a meeting with Mr. Jabara to gain an understand of his concerns with regard to parking and trip generation. Even when the RK Engineering study was commission, an attempt to meet with Mr. Jabara to discuss this matter was rejected by him and his representatives. In addition, even Mr. David Kiff, City Manager for the City of Newport Beach attempted to reach Mr. Jabara and arrange a meeting on the request of the Newport Jewish Center. Mr. Jabara did not respond. The City and Newport Jewish Center cannot and should not be criticized for not having met with Mr. Jabara or his representatives, if Mr. Jabara and his representatives made the choice to ignore or reject all offers to meet. This is discussed in the prior written testimony Mr. Ross states: "Mobilitie never consented or approved the use of Chabad at the Association. Mr. Jabara was contacted by the Association to seek their input on the proposed use of the Building for the intended purposes. Mr. Jabara chose not to meet with the members of the Association to address this. This is discussed in the prior written testimony of March 24, 2014. Mr. Ross states: "Mobilitie, a member of the Association, was never asked by the Association for its input regarding Chabad or its parking requirements or its traffic concerns. Further, Mobilitie was never invited to a meeting of the Association to discuss this issue." This is factually incorrect as noted in Mr. Meehan's letter of December 17, 2013. Mr. Jabara was aware of the pending CUP application. He also offered to meet with the owners of the property through his attorney. But more importantly, there is evidence to show that Mr. Don Johnson of the Association did reach out to the representatives of the Mobilitie building to seek their support or objection to the Association's support for the CUP. Mobilitie chose not to respond and the remaining members of the Association chose to lend their support with a majority of the vote (three out of four parcels) of the Association. March 25, 2014 Page 3 of 7 Mr. Ross again alleges that the proposed use will violate the commercial use restrictions contained in Section 11.1 of the Declaration of Covenants, Conditions and Restrictions ( "CC & R's ") recorded July 12, 1983. This is another allegation which is not supported by the CC & R's, the Municipal Code and the General Plan. If Mr. Ross would have done the research of the history of the Bay Corporate Plaza and the 2010 Comprehensive Zoning Code Update he would have recognized that the APF zoning allowed for "religious assemble" as does the current zoning of OG (Office General). Mr. Ross appears to have simply read the CC & R's and has done none of the research to understand the authority of the Municipal Code and the General Plan. This is thoroughly discussed on Pages 62 — 65 of the prior written testimony. Mr. Ross states: "This exemption is inapplicable to the current project because the current project does involve an expansion of an existing use which cannot be described as "negligible." The current use is a commercial office building. Actually, the current use is a mostly vacant commercial office building. The proposed use will involve an expansion of the existing use because the use by Chabad or any synagogue, church or mosque will involve many activities that were not considered by your planning staff, including, but not limited to, a morning religious service, an evening religious service, adult education classes, children education classes, mommy and me classes, and holiday festivities. These activities will be conducted Monday through Friday during normal business hours. These activities will be expected to increase after Chabad begins its operations and markets its availability to the surrounding community. These activities will involve a group of people coming and going during normal business hours. Some of the people coming and going will include children." Mr. Ross continues to suggest that what has been publically stated and presented in writing is a false reality of what the activities of the Newport Jewish Center intends to conduct. There is no question that adults and children will be going to and coming from the Center. There is no question that activities will be conducted Monday through Friday during normal business hours. However, people going to and coming from the building would do so during the normal business hours whether the tenant was the Newport Jewish Center or some other general office use. Further, the RK Engineering Study shows that the Newport Jewish Center activities requiring parking will have less of a demand then if the building was used for office general. So one has to ask the question what is Mr. Jabara is concerned about? Is his concern related to children coming and going? Is his concern about the religious activities that are taking place within the building? Is his concern with the kinds of activities that are going to be occurring? This is completely unclear and it is the reason why every attempt was made to meet with Mr. Jabara over the last three months. Mr. Ross states: "Your planning staff has failed to consider the activities that Chabad engages in that are described on the Chabad website at www.chabad.org, which shows the calendars for various Chabad's by inserting the zip codes. As examples, I am attaching as Exhibits "A ", "B" and "C" to this letter, the Chabad calendars for the Chabad of West Orange County in Huntington Beach, the Chabad of Irvine and the Chabad of Long Beach. The calendars reflect that there is some activity at Chabad almost every day of the week. Further research will reveal that there are more activities than those listed on the calendar on the websites. This research should have been done, but was not done, by your planning staff." The Chabad organization consists of small community oriented centers which make up more than 2500 branches of today's largest international organizations involved with Jewish education and outreach programs. In Orange County there are 14 such centers. In California there are approximately 120 such centers. March 25, 2014 Page 4 of 7 In an attempt to support his allegations, Mr. Ross has chosen three Centers (Huntington Beach, Irvine and Long Beach) which are atypical of the Chabad Centers in the organization. Mr. Ross fails to recognize that each Center is independent and determines their own requirements for activities to serve the local community. Mr. Ross omits 13 other Centers in the same geographic area with similar or less programing then the Newport Jewish Center. Even the two Centers he mentions that have daily services, he fails to point out that their services have between 10 and 20 people attending and they are not during business hours (i.e. services are generally 7:00 a.m. to 7:40 a.m. and the evening service is from 7:45 p.m. to 8:00 p.m. In Exhibit "A" of the letter from Mr. Ross which shows the Chabad of Huntington Beach online calendar, a number of events on the calendar that Mr. Ross points out are misleading and not actual events, but days that marked as historic days or beginning of the new Jewish month, such as March Yd "Rosh Chodesh" meaning beginning of new Month. "Fast of Esther" on March 13'" is not an event, as well as "Shushan Purim" on March 17` , a day marked in Israel which is not a local event. After removing those dates, they have 2 -3 weekdays that have events, mostly in the evening. As to the number of attendees, the Huntington Beach Center attracts on weekday events during business hours 10 or less people and in the evening 20 people. The Newport Jewish Center has identified the activities and times of activities in the RK Engineering Study and the City's Staff has reviewed this in comparison to the CUP application. The refinement of the uses and activities have occurred during the review process which has enable the City's staff to better understand the specific activities that this Newport Jewish Center intends to conduct. Use of the calendar of other centers or a listing of activities from other centers is irrelevant to the actual activities that have been proposed in the CUP application and reviewed in the RK Engineering Study. Mr. Ross states "Your planning staffs reliance on Section 15301 is misplaced. As the California Court of Appeal stated in the case of Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal App. 4th 1257, 1268, a categorical exemption may not be used "as a means to subvert rules regulating the protection of the environment." The court stated: `Rather, it appears that this is an attempt to use Iimited exemptions contained in CEQA as a means to subvert rules regulating the protection of the environment.' This is precisely that which your planning staff is doing. For Mr. Ross to argue this point, he needs to provide specific information, data, and quantitative and /or qualitative analysis to support his assertions that the CUP application has specific significant environmental impacts that have not been considered. The two that Mr. Ross has previously raised, parking and trip generation, proved to not be an impact at all. On the contrary the parking and trip generation appears to have been less of an impact then the general office use for which the building was approved for, and which included in the Zoning Code the use of religious assembly in that zoning of the property. Page 27 -35 of the prior written testimony that I offered provides substantial evidence to address the fact that the Class 1 categorical exemption for the CUP is justified based on the evidence that the CUP has "negligible or no expansion of use beyond that existing at the time of the lead agency's determination " March 25, 2014 Page 5 of 7 Mr. Ross states: "In the present case, your staff report fails to consider the reasonably foreseeable consequence of the initial project, namely the future usage of Chabad as it expands and develops and attracts more congregants. Further, your staff report fails to consider that the future expansion and use of the Chabad will likely change the scope or nature of the initial project or its environmental effects." Mr. Ross has either failed to read the application and the RK Engineering Study and the written testimony which I have submitted, or simple wants to speculate on a potential situation which is restricted by the Conditions of Approval and the Parking Management Plan. It is clear that regardless of the size of the congregation, the maximum occupancy and seating during the weekday is 108 and the maximum occupancy and seating on the weekday evening and weekends is 207. The nature and scope of the CUP will not change beyond that application and the Conditions of Approval, and the analysis as stated the RK Engineering Study. There is nothing that Mr. Ross has submitted to the City Council or the Community Development Department that shows that the Newport Jewish Center has an ulterior motive to ask for one thing and do another. This is simply a speculative argument that Mr. Ross has alleged and asserted. Mr. Ross fails to recognize that the Newport Jewish Center has been in the City of Newport Beach for 13 years and that they are not a new organization. The Newport Jewish Center has a proven track record. In addition, the RK Engineering Study had growth factored included. The actual current activities and occupancy of the second floor are less than what the Study included. Mr. Ross states: "An analogy to a tree is appropriate. When a sapling is planted near a neighbors property, there is no consequence to the neighbor of the sapling. However, as the sapling grows into a mature tree, there are issues created for the neighbor, including an expansive root system that may destroy the neighbor's property and tree branches that may be drop leaves and other debris on the neighbor's property. In the present case, the City is considering Chabad as a sapling when it should be considering Chabad as a mature tree. The City is failing to consider the "reasonably foreseeable consequence of the initial project." The RK Engineering Study shows the daily use and activities of the Newport Jewish Center. Mr. Ross is attempting to speculate on activities that are simply not part of the CUP application. In addition, the Conditions of Approval limit and restrict the uses, activities and occupancy of the second floor for the uses and activities proposed. Mr. Ross is attempting to call "foul" even before the ball has been pitched. Mr. Ross states: "Based on the foregoing authorities, the City should consider a further environmental review such as a negative declaration or environmental impact report rather than relying on the inapplicable categorical exemption found in Section 15301." There is nothing that has been offered by Mr Jabara or his representatives that would suggest that there is the potential for a significant environmental impact that requires the preparation of a Negative Declaration, Mitigated Negative Declaration ort Environmental Impact Report. On the contrary, the prior written testimony provides ample evidence to support the Class I categorical exemptions, and even presents further environmental analysis to show that the CUP application does not have an impact on any of the standard environmental topics that are typical for environmental review. In addition, the City has verified that the use of the Class 1 categorical exemption is a standard practice in the City for these kinds of CUP applications and that it is in compliance with the City's environmental procedures. March 25, 2014 Page 6 of 7 Mr. Ross states: "The proposed project is located at the end of a dead end street served by a single lane access. There is only one lane into the project and one lane out of the project. This creates an issue for emergency vehicles such as fire trucks that may need to access the site. This factor has never been considered by your staff." The City's Public Works Department has reviewed the RK Engineering Study. The conclusion is that the trip generation would not be any different than the use of the building for office use. Although the times of the trip generation may be different, the street configuration would be the same for general office use as it would be for any other authorized use of the buildings. One has to question if Mr. Jabara considered the same factors when he purchased his building and occupied it with the numbers of occupants that he has alleged occupies the building together with the occupants of the vacant 2260 University Drive building and the 2240 University Drive building. If such an allegation is applicable to the Newport Jewish Center, then the City might want to consider whether or not a subsequent review of the occupancy of the 2220 University Drive building should be conducted with imposed restrictions to address the impacts of the building being used beyond the daily general office business hours. Mr. Ross states: "Based on the foregoing, I request that the City Council deny the application for Conditional Use Permit. In the alternative, I request that the City Council continue this hearing so that its staff may provide some consideration to the points presented in this letter and my prior letter dated January 23, 2014 to the Planning Commission." The denial of the application is not justified by the content of the administrative record. There has been substantial evidence supported by data, and quantitative and qualitative analysis to enable the City Council to make an informed decision to approve the CUP application. The allegations, assertions and citations of law do not provide the data, and quantitative and qualitative analysis by the representatives of Mr. Jabara to support the denial of the application. Further, a continuance appears to simply be a tactic by Mr. Jabara to deny the rights that the Newport Jewish Center has under the General Plan, the Municipal Code and the CC & R's. This would be an unfair delay of a process that has had the support the Planning Commission and the Community Development Department. Thank you for your consideration and assistance Sincerely, CSAA Strategies 1ies -�],b Mr. Marshall B. Krupp President /CEO marshallkrupp@csacoinpanies.com MBK:mbk Letter — Newport Jewish Center Written Testimony Additiona12014 -03 -25 March 25, 2014 Page 7 of 7 CC: Ms. Leilani 1. Brown, City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Rabbi Reuven Mintz Newport Jewish Center 2240 University Drive Newport Beach, California 92660 Ms. Brenda Wisneski, Deputy Community Development Director City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Ms. Leonie Mulvihill, Assistant City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Mr. Stephen Abraham Law Offices of Stephen E. Abraham 1592 Pegasus Street Newport Beach, California 92660 Mr. Philip A. Levy Law Offices of Philip A. Levy 20 Rainbow Lake Irvine, California 92614 Ms. Carol Mentor McDermott, AICP Entitlement Advisors, LLC 5000 Birch, Suite 400 Newport Beach, California 92660