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HomeMy WebLinkAbout13 - Transfer of Development Rights within the North Newport Center Planned Community (PA2014-212) - CorrespondenceReceived After Agenda Printed February 24, 2015 Item No. 13 February 24, 2015, Council Agenda Item 13 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o),vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 13. Transfer of Development Rights within the North Newport Center Planned Community (PA2014 -212) 1. The provision for transfer of development rights allowed by the Newport Beach General Plan in Policy LU 4.3 on page 3 -20, the further special provision for transfers within Newport Center in Policy 6.14.3 on page 3 -96, and the still further declaration of transfer "rights" within the North Newport Center Planned Community Plan -- which seems to bypass the implementation of the General Plan features in NBMC Chapter 20.46 ( "Transfer of Development Rights') -- leads to a confusing system in which the clear allocations the public sees listed in the General Plan have unknown significance because they can be altered by subsequent non - General Plan amendment procedures. And despite the promise of a clear tracking system in General Plan Implementation Programs 10.1 and 10.2 (pages 13 -12), it becomes virtually impossible for the public to verify whether new or proposed development in Newport Center, and other areas of the City subjected to these behind - the - scenes transfer procedures, conforms to the General Plan as modified and when or how those modifications were authorized. 2. It is unclear to me why we allow this convoluted and confusing procedure rather than simply amending the General Plan, and the tables it contains, to accurately reflect our currently valid development limits. As it is, it seems that without formally notifying the public it is changing the General Plan, or following the procedures that would normally be expected thereof (such as having a public hearing before the Planning Commission), the Council can essentially nullify the General Plan land use limits in Newport Center. 3. Nonetheless, nothing I can find in the General Plan, other than Policy LU 6.14.1 on page 3- 96 (allowing limited transfers and conversions out of Fashion Island), contemplates the conversion of allocations from one kind of use to another, and certainly not the "conversion" of residential uses (which per the definitions in the Glossary do not include hotel rooms) to non - residential uses or vice versa. 4. Nor can I find anything that exempts transfers within the North Newport Center Planned Community from the provisions of NBMC Chapter 20.46, even though the findings needed to justify a transfer there seem different than elsewhere per Policies LU 4.3 and 6.14.3. In particular, Chapter 20.46 would seem to require a hearing before the Planning Commission and a deed restriction memorializing that the development limits applicable to the property are different from those found in the General Plan or Zoning Code. 5. The present convoluted system has led to such peculiarities as the 524 unit residential project at San Joaquin Plaza. That project is clearly at odds with the clearly stated limit on page 3 -16 of the General Plan that a maximum of 450 residential units are allowed in the totality of the "MU -1-13" use areas in Newport Center, which include Block 500 (GP Anomaly 39), Block 600 (Anomaly 40), San Joaquin Plaza (Anomaly 48) and the Tennis Club (Anomaly 46) adjacent to the Newport Beach Country Club. Other City documents indicate February 24, 2015, Agenda Item 13 Comments - Jim Mosher Page 2 of 3 5 of the 450 floating residential units were assigned to the Tennis Club. The presently contemplated 524 + 5 = 529 units clearly exceeds the 450 units allowed for the totality of the MU -H3 areas. 6. Likewise, the public reading the General Plan would assume the Marriott Hotel (Anomaly 43) is allowed 611 rooms and The Island Hotel is allowed 425 rooms (plus some portion of the 65 hotel room allotment floating around the MU -H3 parcels, of which the Tennis Club has apparently taken some). Yet neither of those numbers seems current due to subsequent, hard -to -track transfers and "conversions." Even within this convoluted system, the math presented in the Tracking Table of Attachment CC3 does not give one confidence the present action would be sufficient to justify the "development" described (moving entitlements around to allow occupying the 520 Newport Center Tower, the 24 Hour Fitness facility and all but one of The Irvine Company owned buildings in the 100 Block). a. With regard to Block 500, the staff report submitted for the April 10, 2014, review of the North Newport Center Development Agreement by the Zoning Administrator cited an existing entitlement of 599,659 sf compared to 310,684 sf of existing development and plans to occupy the new 365,069 sf office tower at 520 Newport Center Drive. If the contractor is correct that the building size is "only' 347,552 sf, the sum of what is said to be the existing and planned new development exceeds the "post- transfer" entitlement of 599,525 sf listed in the table by something like 50,000 sf or more. b. There is likewise something drastically wrong the numbers cited for Block 600 (site of the Island Hotel and PIMCO Tower). The tracking table indicates the remaining entitlement is just enough to "re- open" the 17,300 sf 24 Hour Fitness facility (which has apparently never actually been closed ?), yet the difference between the post - transfer entitlement of 1,600,327 sf and what is said to be the existing development of 1,298,109 sf is not 17,300 sf, but rather 302,218 sf, or 284,918 sf more than needed to re -open 24 Hour Fitness. In addition, the April 2014 review reported the existing development was 910,637 sf with 398,846 sf to be added when the PIMCO tower at 650 Newport Center Drive was occupied. Those add to 1,309,483 sf of existing development, which does not quite square with the current tracking. But what is the reason for wanting new entitlement substantially beyond that needed to re -open 24 Hour Fitness? And why does the table imply that after to re- opening 24 Hour Fitness there will be zero entitlement remaining? Was excess entitlement supposed to transferred out of Block 600 into Block 500 instead of as shown? c. With regard to Block 100, the present transfer affects only The Irvine Company parcels in the center of the block. Yet the General Plan appears to set an overall development limit of 199,095 sf for the entire block (Anomaly 35). How does changing the allotments to the TIC parcels affect the rights of the other landowners in the block who are not part of the North Newport Planned Community? d. I believe there is also some question about exactly what the square footages listed in the Tracking Table represent. A primary purpose of the table would seem to be to February 24, 2015, Agenda Item 13 Comments - Jim Mosher Page 3 of 3 monitor compliance with both General Plan and Greenlight (Charter Section 423) development limits. The Definitions in the implementing guidelines for Greenlight (Council Policy A -18) make clear that the "floor area" in Greenlight is "gross' floor area, including everything within a building's exterior walls, including such accessory features as elevator shafts and mechanical rooms on all floors. The intention to use gross floor area is also embodied in the definition of "Floor Area Ratio" in the 2006 General Plan. However, in 2010 a somewhat discrepant definition of "Floor Area, Gross," tending towards what most would call "Floor Area, net" or "Usable floor area" was inserted in the Zoning Code, and it is not clear what numbers are being reported here. It is also not entirely clear what justification there is for not counting parking structures as development. 8. As a result of the numerical inconsistencies between the Post Transfer "Entitlement," "Existing Development" and "Remaining Entitlement" columns in the Tracking Table, the report leaves unclear unclear how close the North Newport Planned Community as a whole will be to the General Plan limits at the end of the actions described in the report. Will Block 600 have a large amount of remaining entitlement beyond the 17,300 sf needed to reoccupy 24 Hour Fitness? Or is the 4,302 sf in Fashion Island all that will be left? 9. The report similarly gives the public no clue as to how close the Newport Center Statistical Area L -1 as a whole (including areas outside the "Planned Community") is to the General Plan limits, which would seem relevant to understanding the significance of the proposed changes. 10. The "Trip Transfer History" in Table 1 of the Trip Transfer Analysis (Attachment CC5) does not seem to be entirely accurate: a. Transfer 1 actually seems to refer to Resolution 2007 -82 from December 11, 2007. The way the equivalency between hotel rooms and office space was determined for that transfer (apparently at the rate of something like 1,206 sf per hotel room) is not immediately obvious. Transfer 2 seems to be Resolution 2008 -72 from July 22, 2008, and involved the removal of 24, 428 sf from Block 600, which is not listed in the table. c. The "Total Existing Entitlement" row at the bottom of the table fails to list the remaining 295 hotel rooms in Block 600. 11. Regarding the staff report, the "FUNDING REQUIREMENTS" section says "There is no budgetary impact related to this item." Has The Irvine Company paid the cost of staff time and the traffic study? 12. Planning decision resolutions for the benefit of a specific private party typically include an indemnification clause insulating the City from the cost of defending the decision in court. Is The Irvine Company indemnifying the City?