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HomeMy WebLinkAbout12 - Annual Monitoring Review of Development Agreement No. 14: Newport Coast (PA2011-030) - CorrespondenceReceived After Agenda Printed February 10, 2015 Item No. 12 February 10, 2015, Council Agenda Item 12 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher (i immosher(o).vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 12. Annual Monitoring Review of Development Agreement No. 14: Newport Coast (PA2O11-030) I would like to suggest that this item needs to be continued until such time as the materials presented to the Council are adequate for the Council to make the findings required of it by state law and the agreement itself. The present materials are inadequate because they fail to report on a substantial and significant portion of the area subject to the Annexation and Development Agreement under review, namely the Newport Ridge segment of the area annexed from the County. The recent controversy over Measure Y (the proposed amendments to the Land Use Element of the City's General Plan) highlighted widespread confusion over both the current status and currently permitted future of the 2002 annexation area listed as "Newport Coast" on the City's annexations map. Rather than bringing clarity, this item, as presented, continues that confusion. I suspect the confusion may have arisen because the County had, and may still have, separate development agreements for Newport Ridge (a planned community lying entirely outside the Coastal Zone, which the City calls PC 53) and Newport Coast (a separate planned community lying entirely inside the Coastal Zone, which the City calls PC 52), an area many now commonly and confusingly refer to in its entirety as "Newport Coast." It is my understanding that the present development agreement with the City covers both areas, In addition, The Irvine Company (TIC) seems to have confused its reporting obligations to the County under its development agreement with them for the Newport Coast planned community alone with its reporting obligations to the City Council under Section 6.1 of its separate and distinct "Annexation and Development Agreement" with the City "Concerning Newport Coast and Adjacent Properties," which is the subject of the present review. Section 6.1 of the City development agreement requires the Council to review each year an "annual monitoring review statement" submitted by TIC and also to pass a resolution setting the fee that will be charged to defray the cost of conducting and administering the review. It is my understanding that the purpose of the annual review of development agreements is both to verify that the contracting party has fulfilled their obligations to the public and for the public to see an accounting of the development that has taken place under the agreement. Despite the clear requirements of Section 6.1, 1 do not believe the Council publicly reviewed the status of the Development Agreement until October 25, 2011 (more than nine years after the annexation), when it was Item 13 on the agenda, and I doubt it has ever passed a resolution setting a fee. In 2011, TIC's agent submitted an "Annual Monitoring Report" covering the years 2002-2010, covering, as best I can tell, the Newport Coast Planned Community area only, and February 10, 2015, Agenda Item 12 Comments - Jim Mosher Page 2 of 3 apparently following a format similar to the AMR's that had once been submitted to the County for that area. On September 25, 2012, a new 2011 AMR for the Newport Coast Planned Community area was submitted as Agenda Item 16, covering activities during calendar year 2011. On September 10. 2013, as Agenda Item 18, the Council saw the same 2011 AMR with a page of written updates for calendar year 2012, again covering only the Newport Coast Planned Community area. In the present item, nearly a year and a half after the last "annual" review, the Council is seeing the same 2011 AMR with new updates for calendar year 2013. In summary, over the 13 year life of the Annexation and Development Agreement (which, unless extended, will apparently expire on January 1, 2017 — 15 years from the effective date of annexation ), the Council has, as best I can tell, never been given anything to review regarding the status of the annexed areas outside the Newport Coast Planned Community area. A correct public accounting of the status of the entire annexation area seems especially important in view of the controversy surrounding Measure Y. In particular, voters were told, and an impartial analysis was prepared, based on the assumption that passage of Measure Y would "remove [the potential for] 356 Coastal Commission approved [sic] residential units in Newport Ridge" and the potential for traffic associated with that. If such a pre -approved potential exists, I think it is important for the public to know, but not only was there nothing actually about removing this entitlement in the full text of Measure Y, I believe it may have been nothing more than a statement of how much TIC thinks the number of homes shown in the present City Land Use Element is less than it could have subdivided under its agreement with the County. Whether the Development Agreement gives TIC a right to change the subdivision of Newport Ridge contrary to the plan shown in the City's Land Use Element, and whether they have any plan to do so, are matters of public concern not covered in the materials submitted for review. Within the area covered by the AMR, voters were told that in what the City's Land Use Element calls "Anomaly 60" (the Pelican Hills/Marriott resort area referred to as Planning Area 13 in the AMR), the building potential (and potential for new traffic) could be reduced by 1,001,000 square feet and still give TIC room to add 45 rooms to what they have now. Emails from TIC's planning agent to the City, released after the election in response to a Public Records Act Request, suggest that the limit that the development limit for Anomaly 60 that would have been imposed by Measure Y (1,659,000 square feet) would have been 251,939 square feet less than currently exists in the area, possibly requiring a subsequent "Greenlight" vote to entitle what is already there, let alone the 45 additional rooms. Also in connection with Measure Y, there remains considerable confusion over the potential for future hotel development in Newport Coast. Attachment 3 to the 2011 AMR appears to be informing the Council and public that although a potential for more may exist (and per Exhibit 3 February 10, 2015, Agenda Item 12 Comments - Jim Mosher Page 3 of 3 it has approved plans for 4 more), the 1,104 visitor accommodations existing as of December 31, 2011 (and December 31, 2010 per the previous AMR) are regarded by TIC as its anticipated "build out" condition. If there is any change in that plan, the materials presented for review do not appear to reveal it Should TIC change its "build out" vision for hotel development in Newport Coast, there are serious questions about the validity of the 2,150 room limit for Anomaly 60 / Planning Area 13 cited in the City's current Land Use Element. Although such a number can be found in the "totals" near the bottom of Exhibit 3 in the AMR, a close reading of the Newport Coast Local Coastal Program from which this is supposedly adapted indicates there is a firm limit of 1,900 rooms for PA 13 which could be changed only by the California Coastal Commission. In addition, the "Estimated Accommodations' column suggests that TIC at some point agreed to a scheme of allocations to the sub -areas of PA 13 totaling just 1,850 rooms. This may be compared to what one would assume is an accurate appraisal of the current number of rooms: 1,104 in PA 13, the only area in which visitor accommodations appear to be allowed. This would seem to indicate that whatever the City's General Plan says, the potential for additional rooms at Newport Coast is limited to less than 750, and even those, for which the AMR indicates no approved plans existed as of December 2010, would be subject to the severe height and footprint restrictions imposed by the Coastal Program. Questions about the reliability of the numbers being provided extend not just to the development, but even to the size of the area being discussed. The preamble to the Annexation and Development Agreement describes the whole area being annexed as illustrated in the exhibits, which includes Newport Ridge and open space, as consisting of "approximately 7,799 acres." Yet Exhibit 3 in the AMR lists acreages for the Newport Coast Planned Community area alone which total 9,382 acres of non-commercial plus 211 acres of commercial. Finally, the Measure Y debate raised serious questions about the conflicting jurisdictional authorities over the annexation area by the City, County and Coastal Commission. One might hope that the "annual" review of the Development Agreement would serve as a forum for clarifying those issues, but at least as presented in writing, it does not. For example, those reading the 2011 AMR provided as part of the present item, would find on page 8 ("Discretionary Approvals"), that on September 15, 2011, the City approved permits for development in the Crystal Cove Promenade Shopping Center. Nothing I can find in the report or updates reveals that the City subsequently received a letter (dated December 6, 2012) from the County asking it to cease and desist from issuing permits in an area over which it had no permitting authority. Again, I request that this item be continued until such time as information on the status of the entire area subject to Development Agreement 14 can be presented, along hopefully with some clear vision regarding the future potential for development in the annexation area and what control the City has over that. In view of the vote on Measure Y, and the distrust it may have generated, I think the public deserves a better understanding.