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HomeMy WebLinkAbout03 - North Newport Center Planned Community (PA2007 -151) - 500 -600 Blk Newport Center Drive, 42000 Blk San Joaquin Plaza - Staff Memo"RECEIVED, FfER E orl PRINTED!' # - " CITY OF NEWPORT BEACH F° OFFICE OF THE CITY ATTORNEY TO Mayor and Members of the City Council FROM: Robin L. Clauson, City Attorney Sharon Wood, Assistant City Manage RE Adoption of Ordinance Nos. 2007 -20 and 2007 -21, approving North Newport Center Development Agreement and Planned Community Development Plan DATE : December 18, 2007 The City Clerk received a 21 page letter, with numerous attachments, that was hand delivered just minutes before the 7:00 p.m., December 11, 2007, regular meeting of the City Council. This lengthy document and a separate letter from a traffic engineer were submitted on behalf of Greenlight, and presented in a manner which left no time for the Council to review and consider the letters at the meeting and no time for the City Clerk to make copies for staff, the applicant or the public (Greenlight letter). Previous to the receipt of this letter there had been no appearance or letter submitted by any member or representative of Greenlight, at either of the public hearings on the North Newport Center Project before the Planning Commission on November 15, 2007 or November 29, 2007. We have since had the time to review the letters and attachments and to consider the testimony of Phil Arst, the attorney for the firm of Leibold, McClendon & Mann and the engineer from Orosz Engineering Group, Inc., in the context of the letters. We have determined that neither the letters nor the testimony raised any new issues related to the City's Housing Element, compliance with the General Plan or Traffic Phasing Ordinance, or the approval of the Addendum to the 2006 General Plan Environmental Impact Report (GPEIR), which are not explained or provided for in the record or that would cause the actions taken by the City Council on December 11, 2007 to be reversed or modified. It is also our opinion that there is nothing in these letters that would prevent the City from adopting the two ordinances that were introduced on December 11, 2007. Issues Raised Regarding Housing Element In 2006 the City completed a four year planning effort to comprehensively update the City's General Plan. All elements of the General Plan were reviewed and updated including the Land Use Element, Circulation Element, Housing Element and Natural Resources Element. The updated General Plan was considered and approved by the City Council on July 25, 2006 after hundreds of hours of public meetings before citizens committees, the Planning Commission and the City Council. A Program EIR was certified Mayor and Members of the City Council December 18, 2007 Page 2 and approved by the City Council and the voters approved the detailed development capacity under the Land Use Element in November 2006, pursuant to the requirements of Charter Section 423. Staff forwarded the Housing Element to the Department of Housing Community Development ( "HCD') for review as required by State law 8 days after it was approved by the City Council. The letters submitted as attachments to the letter from Leibold, McClendon & Mann reflect these facts and the fact that City staff continues to actively work with HCD to gain HCD's certification of the 2006 Housing Element. (The City received certification of its previously adopted Housing Element in June 2005.) As of today's date there are no Department findings rejecting the 2006 Housing Element. In fact, the Project directly responds to one of the concerns expressed in the September 10, 2007 letter from HCD requesting additional information for their review of the Housing Element. In that letter HCD requested the City "demonstrate that these strategies [i.e. mixed use development in Newport Center] are realistic and viable..." The approval of a mixed use development in North Newport Center for development of 430 housing units along with required development of affordable housing in compliance with the Housing Element will provide just the assurance HCD requested. Ironically, the assertion by Phil Arst that the Project requires a Greenlight vote would run counter to the HCD concerns raised over the impacts on housing development that could be caused by Charter Section 423. If the City Council were to require another423 vote on these 430 units, which could limit housing development under the Housing Element, that would confirm the concerns raised by HCD in the review letters attached to the Greenlight letter. There is no need to make the findings required under Government Code Section 65863 as demanded by Greenlight. The Planned Community Development Plan and the Development Agreement implement the residential development approved by the voters in the 2006 Land Use Element. There is no reduction in housing density. The Development Agreement will provide vested rights to The Irvine Company for development of 430 of the 450 residential units approved by the voters. Twenty units will remain available for the property owners in the areas authorized on the Land Use map. Thus there is no reduction in density and in fact many other property owners including the Newport Beach Country Club have expressed an interest in developing the remaining 20 units. In our view, the attachments form HCD do not establish that continued communications between the City and HCD constitute any support for the assertion that the City's Housing Element is legally non - compliant under state law. Rather the letters highlight the City's cooperation and progress toward obtaining HCD certification. Furthermore, the letter does not cite and we were unable to find any legal authority for the assertion that HCD approval or certification of a City's Housing Element is required for a consistency finding for approval of the Development Agreement or the PC Development Plan. Issues Raised Regarding Global Warming. The attached memo from the City Attorney was provided to the Planning Commission at its meeting of November 29. Staff inadvertently failed to attach it as part of the Mayor and Members of the City Council December 18, 2007 Page 3 background material for the meeting on December 11th. The memo explains the reasoning and support for the use of an Addendum to the 2006 General Plan EIR certified on July 25, 2006. The 2006 GPEIR was a Program EIR and under section 21166, the Project will not require a subsequent or supplemental EIR unless "new information, which was no known and could not have been known at the time the environmental impact report was certified as complete, becomes available." Section 21166 states that no subsequent or supplemental EIR shall be required, unless one or more of three events occur. The Greenlight letter argues that the GPEIR failed to analyze and mitigate the Project's global warming Impacts and thus the use of an Addendum is inappropriate. However, the Greenlight letter does not cite or reference new information about global warming or greenhouse gas emissions, which were not known or could not have been known, when the GPEIR was certified in 2006. The letter fails to provide any new information that the Project proposes substantial changes, or that substantial changes have occurred with respect to the circumstances under which the Project is undertaken, which will require major revisions to the GPEIR. The time period to argue the adequacy of the GPEIR as to analysis of global warming issues has long since passed. The City Council's action approving the Addendum was appropriate, so long as the administrative record as a whole contains substantial evidence to support a determination that any changes in the Project from the previously approved GPEIR were not so substantial as to require major modifications to the EIR. The City Council in its action approving the Resolution certifying the Addendum on December 11, 2007, made the findings to support this conclusion. There is no new information in the Greenlight letter to change the City Council's finding. Issues Raised Regarding Traffic Impacts Austin -Foust Associates, Inc. has analyzed the letter from Orosz Engineering Group, Inc., and prepared the attached memorandum responding to most of the comments in the OEG letter. Two comments in the OEG letter are not engineering questions: the applicability of Charter Section 423 (Measure S) to the Project, and the conversion factor for the transfer of hotel entitlement to office. Charter Section 423, including its trip threshold, applies only to projects that include a General Plan amendment. As explained in the attached memo from the City Attorney, the Project is consistent with the General Plan and no amendment is required. Therefore, the provisions of Charter Section 423 do not apply to the Project. With regard to the hotel conversion to office, OEG is correct that 1,000 square feet was used for the 30 hotel rooms from the original Four Seasons entitlement, and 1,425 square feet was used for the 100 room expansion approved in GPA 97 -3D. In both cases, these are the intensity limits included in the General Plan. The 65 hotel rooms added in the 2006 General Plan update were not assigned to any one site or block in Newport Center, but may be developed on any site designated MU -H3 (i.e., the three mixed use blocks in North Newport Center). Therefore, an intensity limit in terms of floor area was not included in the General Plan for these rooms. For the analysis of the Project, we determined that the more recently approved floor area per room (1,425 square feet) is a Mayor and Members of the City Council December 18, 2007 Page 4 more realistic reflection of the development that would occur in Newport Center than the general factor of 1,000 square feet that is used citywide for a greater variety of visitor accommodations. F:% userslcafthared%DebbielProjects WewportCenter \memolCCleiboldLtr.doc CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY TO Chair and Members of the Planning Commission FROM: Robin L. Clauson, City Attorney RE North Newport Center: Response to Comments and Concerns Raised by Commissioner Barry Eaton DATE : November 29, 2007 This memorandum will respond to two issues raised by Commissioner Eaton at the November 15, 2007 Planning Commission meeting on the North Newport Center Development Plan, and related approvals, ( "Project'). Commissioner Eaton questioned the use of the General Plan EIR by way of an Addendum to comply with the environmental analysis necessary under CEQA and questioned whether that the approvals for the Project are consistent with the 2006 General Plan. A. Compliance with CEQA As described in the Addendum and as followed in the Addendum analysis, the Project implements the 2006 General Plan land use approvals. The 2006 General Plan was considered by the public and the City Council approved it in conjunction with the certification of a final Environmental Impact Report on July 25, 2006, (GPEIR). The first issue raised was related to Commissioner Eaton's view that the Project is a completely new project and thus requires its own environmental analysis. The logistical problem with interpreting the guidelines to determine when a project is a "new project" versus a ,'modified prior project," is a concept that comes from the 2006 Save Our Neighborhood' case which was based in the reasoning of the Benton case cited by Mr. Eaton. This concept of "is it a new project' was recently put to rest in the case of Mani Brothers vs. City of Los Angeles 153 Cal.AppAth 1385 issued on August 3, 2007. In that case the court upheld the use of an Addendum to a previously approved Environmental Impact Report when it was established that there was no substantial evidence to support the need for a subsequent or supplemental EIR as required under the provisions of the CEQA Guidelines. Pertinent to this discussion, the Mani court stated at page 1398, "When reviewing an agency's decision not to require a SEIR, the 'low threshold' fair argument test for requiring the preparation of an EIR in the Save our Neighborhood vs. Lishman (2006) 140 Cal.AppAth 1288 Planning Commission Page: 2 November 29, 2007 first instance is no longer applicable; instead, agencies are prohibited from requiring further environmental review unless the stated conditions are met." [citation omitted] Thus, in reviewing decisions made pursuant to section 21166, courts 'are not reviewing the record to determine whether it demonstrates a possibility of environmental impact, but are viewing it in a light most favorable to the City's decision in order to determine whether substantial evidence supports the decision not to require additional review:' " " " The rationale for limiting the circumstances under which a supplemental or subsequent EIR may be prepared is 'precisely because in- depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [citation omitted], and the question is whether the circumstances have changed enough to justify repeating a substantial portion of the process. [citation omitted] Therefore, section 21166 'provides a balance against the burdens created by the environmental review process and accords a reasonable measure of finality and certainty to the results achieved. At this point, the interests of finality are favored over the policy favoring public comments..." The court later clarified at page 1401, that the inquiry whether as a matter of law, a project was a modified or a new project was not an appropriate type of analysis called for under CEQA. "The focus of CEQA, both procedurally and substantively, is solely... the potential environmental impacts of a project. Labeling a project a 'new project' as distinguished from a 'modified project,' and finding such a label determinative, as the court did in Save Our Neighborhood, imposes a new analytical factor beyond the framework of CEQA. Particularly here where there is a previously certified EIR, changes in the size, ownership, nature, character, etc., of a project are of no consequence in and of themselves such factors are meaningful only to the extent they affect the environmental impacts of a project." Commissioner Eaton also was concerned that the process for environmental review for the Project should have been to follow the "Tiering" process described in Section 15152 of the CEQA Guidelines. While "Tiering off' a previous EIR could be appropriate under certain circumstances for certain projects, it is not necessary to be followed for this Project. Section 15152, which provides general requirements for Tiering situations such as a program EIR, also requires a later EIR only "when the initial study or other analysis finds that the later project may cause significant effects on the environmental that were not adequately addressed in the prior E1R,(15152 (0." Thus, even if the tiering process was used, Section 15152 does not require a new EIR for a project when a previous EIR adequately addressed any significant effects resulting from the project. Here, the North Newport Center Addendum serves as the "other analysis" of whether the Project may cause significant effects "not adequately addressed in the prior EIR:' The Planning Commission Page: 3 November 29, 2007 North Newport Center Addendum also details how the Project does not create any new environmental effects not already evaluated in the GPEIR. A later EIR is therefore unnecessary under Section 15152. CEQA Guidelines Section 15153 would also not apply to this Project. Notably, Section 15153 governs the use of an EIR from an earlier project for a "separate, later project', not a project implementing approvals that were already analyzed under a Program EIR. Accordingly, the City has followed the requirements for a Program EIR under Section 15168, rather than the requirements for a "separate later project' under Section 15153. In addition, CEQA Guideline Section 15378 does not require treating the Project as a "separate later project." This section merely defines the term project for CEQA purposes. As part of its definition Section 15378 does provide examples of projects subject to CEQA, including enactment and amendment of zoning ordinances. However, Section 15378 provides no indication, that "enactment and amendment of zoning ordinances," which implement the adoption or amendment of local general plans or elements of a general plan, are separate projects requiring separate EIRs. In this case, the GPEIR contemplated new or amended zoning regulations to implement changes in the land use designations and descriptions in the 2006 Land Use Element, as approved by the voters in November 2006. Specific to North Newport Center, previous zoning of APF and Planned Community District Regulations did not address these new land use designations and necessarily were required to be amended to implement the new MU -H3 designations for portions of Newport Center. It was recognized that such zoning implementation regulations would be necessary in the Resolution adopting the new General Plan. As outlined in the Addendum, new or amended zoning regulations are exactly the circumstances envisioned by the GPEIR, and the Planned Community Regulations Guidelines and Development Agreement all necessarily were directed to occur for the approved development entitlements in the new Land Use Element. B. Consistency with the General Plan Under California law, a project is consistent with a General Plan if it is compatible with the objectives, policies, general land uses and programs specified in the General Plan regardless of whether the Project is in rigid conformity with every detail of the General Plan. The Project approvals which will be referred to as the "Development Plan" for North Newport Center are compatible with the objectives, policies, general land uses and programs specified in the General Plan because it promotes the General Plan's mixed used goals and follows the mixed use land use designations within the authorized entitlements for Newport Center and Fashion Island. The Development Plan and all of the related approvals are within the authorized land uses for the North Newport Center properties. The MU -H3 ( Mixed Use - Horizontal) designation authorizes the regulated land uses of intermixing of regional commercial office, hotel, multi - family residential and ancillary Planning Commission Page: 4 November 29, 2007 commercial uses. The Fashion Island property is designated CR or commercial retail and the 75,000 additional square feet authorized by the 2006 voter approved Land Use Plan is consistent with that zoning and within the authorized entitlements. This is also true for the development of the 430 residential units within the MU -H3 designated properties. Thus whether the development is built as hotel entitlement or office entitlement it is an authorized use under the General Plan, and specifically the Land Use Element. In my opinion, the Development Plan and the related approvals including the transferred development rights are compatible with the objective policies, general land uses and programs specified in the General Plan. While the contemplated transfer of development rights will result in the condensing of existing office and the expansion of that existing office in a certain block, and the conversion of hotel to office, this factor in and of itself does not directly conflict with the policy found in "Opportunities for change" in LU3.3, or the policy overview related to Newport Center and Fashion Island, or the related goals and policies under LU 6.14. This is especially true in the context of LU 6.14 objective that Newport Center and Fashion Island be a successful mixed use district that integrates an economic and commercial center serving the needs of Newport Beach residents and the sub - region with expanded opportunities for residents to live close to jobs, commerce, entertainment and recreation and is supported by a pedestrian friendly environment. The Planned Community Regulations and Guidelines and the authorized uses and development of office in conjunction with the additional of 430 residential units and the existing Island Hotel, along with the modest expansion authorized by the General Plan for additional retail in Fashion Island, all integrate within the context of the overall goals and policies of the General Plan for Newport Center and do not create any direct conflict with any policy or objective. RC:da F:%userslcafthared\ Projects %NewportCenter\memoMPCgpeir.doc 0A4 LIST1N_J rRAPPIC ENGINEERING MEMORANDUM AIVO rRA'NSP0RrAr1ov PLANNING . TO: Sharon Wood, City of Newport Beach Tony Brine, City of Newport Beach FROM: Joe E. Foust, P.E. DATE: December 18, 2007 SUBJECT: RESPONSE TO OEG, INC. NORTH NEWPORT CENTER PROJECT COMMENTS The City received a letter with comments regarding the North Newport Center Trip Transfer and TPO studies from Orosz Engineering Group, Inc. (OEG), dated December 11, 2007. This report summarizes Austin -Foust Associates, Inc. (AFA) analysis of and responses to those comments. ANALYSIS The comments in the five -page letter are summarized in 10 bullet points that are taken directly from the letter. The responses to these comments are as follows: The commenter references two traffic studies prepared by AFA in his review. These two documents are: 1. Newport Center Trip Transfer Traffic Study - hereafter referred to as "Transfer Study." This study analyzes whether the proposed transfer of development rights is consistent with General Plan Policy LU 6.14.3. 2. North Newport Center Traffic Phasing Ordinance Traffic Study - hereafter referred to as "TPO Study." This study complies with the requirements of NBMC Chapter 15.40 for the project by the applicant (i.e., not including a 72 TSF City Hall in Block 500). For the sake of clarity, AFA's response will indicate which of these two studies (i.e., the Transfer Study or the TPO Study) is being discussed. 017080m 2.dw 2223 Wellington Avenue, Suite 300 • Santa Ana, California 92701 -3161 Tel: (714) 667 -0496 Fax: (714) 667 -7952 www.austinfoust.com Comment 1 The trip generation rates used to estimate the City Hall traffic have been understated. Response] The City Hall trip rate used in the Transfer Study is 1.5 trips per thousand square feet (TSF). This trip rate utilized ITE's published rate for office park (ITE category 750). ITE does provide some very limited trip rate data for government office buildings, but this data was obtained from only two studies and ITE expresses a specific caution warning in its use. As a result, a substitute trip rate from ITE's office park category was utilized. The two published ITE rates for government office range from 1.21 to 2.85 trips per TSF. A review of a civic center trip rate published by SANDAG indicates a rate that is 40 percent higher for a civic center office than a regular commercial office use. This source corroborates the use of the ITE office park rate of 1.5 trips per TSF, which is 34 percent higher than the regular office rate as determined for this project using ITE's office rate regression equation. Comment 2 The AM peak hour traffic has not been considered in the traffic equality calculations. Response 2 The City's standard practice for many years has been to utilize the PM peak period to determine trip neutrality in transfer studies for Newport Center. The City has consistently followed this policy and, in fact, use of the PM peak is specifically called out in the North Newport PC document. The continued use of the past practice remains a valid concept. The concept of trip neutrality is based upon the understanding that the peak condition is not made worse. For example, the ADT trip rate was not utilized since it is entirely possible to increase ADT without increasing the peak hour. Similarly, it is universally accepted that of the two peak periods (or three if the noon peak is considered) that the PM peak is the critical period. The TPO Study examined 40 intersections and the PM peak was the critical one at 33 of the locations. For the remaining seven, where the AM experienced the highest ICU, the ICU was LOS "C" or better. The average AM LOS is one level better than the PM (AM average ICU = 0.52 versus PM average ICU = 0.61). Consequently, there is little doubt as to whether the AM or PM is the most critical period for determination of trip neutrality. Comment 3 City Hall trip generation has not been included in the traffic analysis. Response 3 The use of 72 TSF of transferred floor area for City Hall was included in the Transfer Study. The City Hall was not included in the TPO Study since it is not part of the project proposed by the applicant. A separate Traffic Study will be conducted for the City Hall option site if or when a development proposal is made. Comment 4 Hotel trip generation has not been included in the traffic analysis. 017080n=2.doc Response 4 The Transfer Study does include a hotel land use trip rate since it is an entitled, but as yet un -built use that is subject to elimination with a credit calculated for the would -be trip generation based on the concept of trip neutrality. The TPO Traffic Study does not include a hotel trip rate because there is no hotel proposed -only office, residential, and retail uses. Furthermore, a health club rate and restaurant are included in the TPO Traffic Study since they are existing facilities, which currently contribute traffic to the existing volume, and are to be removed. The hotel rooms being replaced are entitled, but as yet un- built. Therefore, they do not actually generate any existing traffic, nor is any credit applied in the TPO Study. Comment 5 Increases in existing Fashion Island development have been identified in the traffic analysis, but are not discussed anywhere else in the documentation. Response 5 The comment correctly reports that 75 TSF of expanded retail use is included in the TPO Study. This increased "shopping center" use is shown in Table I on Page 2 of the TPO Study. This 75 TSF of expanded retail is also shown in the General Plan and included in the EIR document. Since the 75 TSF is proposed to be developed in Fashion Island, as shown in the General Plan and EIR, it did not need to be addressed in the Transfer Study. Comment 6 When the AM peak hour is considered, the actual amount of equivalent development is 160 TSF less than proposed. The proposed project results in 160 TSF of office uses over and above that consistent with the General Plan. Response 6 It is unclear as to how the commenter arrived at the 160 TSF amount. The comment seems to apply only to the Transfer Study since the AM peak period is included as required by City Ordinance in the TPO Study. The commenter, again, presumes that the AM peak period is used in the determination of trip neutrality. Reference is made to essentially the same comment (i.e., Comment 2) and the response, which points out the City standard and continuing practice to utilize the PM peak period for the purpose of calculation of trip neutrality for Newport Center transfer of development rights. Therefore, the amount of office square feet available through the Transfer Policy would remain unchanged. See Response Number 2, which indicates that the PM peak period is the critical period. In addition, the TPO Traffic Study does, in fact, include a complete analysis of the AM peak period as well as the PM peak period for the project proposed by the applicant. Comment 7 The amount of equivalent SF calculation is suspect. Ol 7090mm2.doc Response 7 The statement appears to be a general observation by the commenter. The Transfer Study included all the proposed new uses as well as the existing uses that are being removed and the existing, but as yet un -built entitlement to calculate the resulting trip neutrality for the proposed project. The Transfer Analysis even included a potential relocated City Hall, which is not currently proposed in the applicant's project description. Comment 8 The project would add at least 179 more peak hour trips than currently envisioned Response 8 The comment indicates the project would generate a net increase of 179 peak hour trips. This is absolutely not the case. The proposed project, including a 72,000 square foot relocated City Hall (which is not currently part of the project), would be precisely trip neutral in the critical PM peak hour as compared with the existing constructed uses plus the remaining un -built entitlement. The figure 179, noted by the commenter, merely represents the AM peak hour trip difference between the existing uses in Block 600 that are being eliminated, and the total trips generated in Block 500 with the new office. The figure does not take into account the credit due the 195 hotel rooms eliminated in the transfer. It is a meaningless comparison unless the hotel credit for 195 rooms is also considered. Comment 9 The project will create significant impacts at three intersections during the peak hours. Response 9 The comment is correct. In addition, this finding, which is also noted in the General Plan and EIR, was thoroughly evaluated and mitigated to the extent feasible in the TPO Study. The findings of the TPO Study are that one of the three locations, MacArthur Boulevard and San Joaquin Hills Road, can be mitigated with intersection widening whereas the other two locations on Coast Highway at Marguerite and Goldrod, although impacted, are to be retained in their existing configuration. These findings and mitigation are also consistent with the General Plan and EIR. Comment 10 The project is not traffic neutral, or consistent, or equivalent and the analysis is incomplete. Response 10 The statement appears as a simple statement of the commenter's opinion. By contract, these responses to his previous nine comments have pointedly shown that, in fact, the project is based on trip neutrality as determined by a long standard practice by the City and both analyses (i.e., the Transfer Study and TPO Study) are complete. 017080mm2.doc