HomeMy WebLinkAbout23 - CorrespondenceSTONERIDGE
C A P I TA L P A R T N E R S
September 28, 2010
Ms. Leslie Daigle
Council Member District 4
Newport Beach City Council
3300 Newport Boulevard
Newport Beach, CA 92658
65's� 4 i`1iI ^n
AFTER ss °i. StF�.F1 µ?E
e lA
fii4Hl: XL5 nw-
Subject: Comments on Airport Business Area Integrated Conceptual Development Plan
Dear Councilwoman Daigle:
On behalf of 4350 Von Karman, LLC, the owner of the property located at 4350 Von Karman in
the City of Newport Beach, which is a part of Koll Center Newport and the Airport Business
Area Integrated Conceptual Development Plan ('Development Plan"), we have significant
objections and concerns regarding the approval of the proposed Development Plan. We
respectfully request the Council address these concerns prior to taking any action on the
proposed Development Plan.
When the Koll Center was master planned in 1972, it was intended to be developed as an office
and light industrial campus without a residential development component. It must be recognized
that the Development Plan represents the first step following the 2006 General Plan Update
toward the implementation of a fundamental shift in land use allowing up to 2,200 residential
units within the airport area. This will be accomplished by, among other changes to the Koll
Center, replacing existing non- residential land uses with new residential uses including
"additive" housing units to be constructed on existing surface parking lots.
We recognize that the proposed change in land use to create a residential and mixed use
development zone within the airport area may be a desirable planning goal. However, the impact
of these proposed changes on the existing office, commercial and industrial land uses, including
the property rights of the existing property owners set forth in the operational covenants,
easements and agreements between and among the existing property owners, must be fully
evaluated to insure that the impacts of these proposed changes in use are fully addressed and
mitigated to the maximum extent possible. In addition to the construction- related impacts, the
loss of existing parking resources and the accompanying replacement of new parking facilities
and the attendant altered vehicular and pedestrian circulation elements must be fully addressed.
Tel 949.474.5850 1 Fax 949.474.5851 1 4350 Von Karman Ave., 4th Floor, Newport Beach, CA 92660 1 wvvw.stoneridgecp.com
Councilwoman Leslie Daigle
City of Newport Beach
September 28, 2010
Page 2
Specifically, we request the following substantive issues be addressed:
Environmental Review:
The staff report states:
"No additional environmental review is required pursuant to Public Resources
Code Section 21166 because no substantial changes to the General Plan are
proposed which would require revisions to the General Plan EIR; no substantial
changes have occurred with respect to the circumstances under [with] which [sic]
the project is being undertaken which would require revisions to the General Plan
EIR; and no new information, which was not known and could not be known at
the time the General Plan EIR was certified, has become available."
We respectfully disagree with this determination, given the City of Irvine has adopted the 2010
IBC Vision Plan EIR which has a significant impact to the Newport Irvine Business Complex.
The City itself has acknowledged this impact through its extensive involvement with the City of
Irvine during the circulation of this EIR and by its recent settlement agreement with the City of
Irvine as a result of the impacts created by the IBC Vision Plan to the City of Newport and
specifically to the Newport Irvine Business Complex. The introduction of over 15,000 new
residential units to the Irvine Business Complex will have a significant impact to the Airport
Business Area Integrated Conceptual Development Plan which was NOT analyzed by the City of
Newport Beach's EIR, SCH No. 2006011119, certified on July 25, 2006.
Pursuant to CEQA Guidelines Section 15162, a subsequent or supplemental EIR is required if
(i) substantial changes are proposed in the project that will require major revisions to the EIR due
to new significant environmental impacts or a substantial increase in severity of previous
significant impacts, (ii) substantial changes occur with respect to the circumstances under which
the project is undertaken which will require major revisions to the EIR due to the involvement of
new significant impacts or a substantial increase in the severity of previously identified impacts;
or (iii) new information of substantial importance indicates that the project will have new
significant effects or more severe significant effects than previously studied in the EIR, and
mitigation measures that were previously considered infeasible or are considerably different
would substantially reduce the significant effects.
Respectfully, we believe that it would constitute an abuse of discretion for the City to approve
the Development Plan without preparing and circulating a supplemental EIR for the proposed
project on the grounds that substantial changes have occurred with respect to the circumstances
under which the Development Plan is being undertaken which will require major revisions of the
previous EIR. In particular, the involvement of new significant environmental effects and a
substantial increase in the severity of previously identified significant effects warrant the
preparation of supplemental EIR for the Project. Additionally, new information of substantial
Councilwoman Leslie Daigle
City of Newport Beach
September 28, 2010
Page 3
importance, which was not known and could not have been known with the exercise of
reasonable diligence at the time the previous FIR was certified as complete shows that the
project will have one or more significant effects not discussed in the previous EIR and
significant effects previously examined will be substantially more severe than shown in the
previous EIR ...." (Cal. Code of Regs., tit. 14 § 15162).
We also believe that because the Development Plan is the initial step in a series of anticipated
project approvals that include the submittal of "regulatory plans" by each participating property
owner, there is impermissible project splitting under CEQA. A lead agency must consider the
whole of an action, not simply its constituent parts, when determining whether it will have a
significant environmental effect (Cal. Code of Regs., tit. 14 §15003(h)). Furthermore, the scope
of review under CEQA is not confined to immediate effects, but extends to reasonably
foreseeable indirect physical changes to the environment (Cal. Pub. Res. Code § 21065, Cal.
Code of Regs., tit. 14 § 15378(a)). Failure to evaluate the potential environmental impacts
associated with an increase of 2,200 residential units and additional mixed -use development near
the airport at the time of approval of the Development Plan constitutes impermissible "project -
splitting" and violates CEQA.
The approval of the Concept Plan clearly constitutes a substantial change that will create new
significant environmental impacts, and deference of environmental review constitutes
impermissible project splitting in clear violation of CEQA. (Bozung v. Local Agency Formation
Commission, 13 Cal.3d 263 (1975)). For example, there has been no current or updated
evaluation whatsoever of the project aesthetics, impacts to air quality, cultural and biological
resources, public services and utilities, hydrology and water quality, traffic, parking or
circulation associated with the proposed residential density.
CC &Rs:
While enforcement of the provisions of the Kell Center North CC &Rs is not a City
responsibility, the City should be aware that the proposed project may not be implemented
without approval of 75% of the property owners who are a party to the CC &Rs. There is no
evidence in the record that 75% of the property owners have given their consent to the
Development Plan or to any amendment to applicable provisions of the CC &Rs. Note that the
CC &Rs grant to each of the property owners in the project reciprocal, non - exclusive rights to use
all of the parking areas constructed by the respective Building Site Owners (collectively, the
"Common Parking Areas"). Common Parking Areas are defined in the CC &Rs as "those
portions of the various Development Areas upon which on- grade [emphasis added] parking
facilities together with access driveways have been or will be constructed for the common use
and benefit of the Owners and Occupants of all of the Development Areas and the Improvements
constructed thereon." Nowhere in the CC &Rs is it contemplated that easements reserved and
granted to the Owners will be disturbed, modified, removed, relocated or replaced with
subterranean parking facilities (as opposed to the contemplated on -grade facilities), nor has there
been, to our knowledge, any discussion with the owners as to financial impacts that such a
Councilwoman Leslie Daigle
City of Newport Beach
September 28, 2010
Page 4
modification may have, including, without limitation, increased costs of maintenance, repair, and
replacement of any Common Parking Areas, which would likely be assessed against owners.
Parking:
The proposed plan does not adequately address how parking will be provided or managed for the
existing property owners within Koll Center North. We believe it is premature for the City
Council to approve this plan which allows for the removal of existing parking facilities without
adopting a program to guarantee parking for the existing properties at the level they are being
provided today which conforms to City code requirements and the operational covenants and
agreements between and among the property owners.
Circulation:
There has been no discussion within the proposed plan regarding the adequacy of the new
circulation plan both to serve the existing property owners internally and how access will occur
from the public streets. We believe it is premature for the City Council to approve this plan
without understanding and adequately addressing circulation.
Integration of residential use within an existing office complex:
We understand the desire of the city to bring housing in close proximity to jobs, however, careful
consideration of how to integrate these normally incompatible Iand uses must be taken. The
issues of parking, circulation, and/or utilization of public spaces have not been fully discussed or
mitigated in this proposed plan, but rather, delegated to a future date on a project by project
basis. We believe the integrated plan should have a more thorough discussion of these impacts
with accompanying mitigation, including phasing of that mitigation. It is unacceptable in our
view to rely on project by project approvals to determine how the project should be implemented
and what the mitigation should be for the conceptual plan. Such project integration should also
be addressed in the project CC &Rs, subject to consent of the requisite percentage of owners in
the project.
Finally, it is premature for the Council to make a decision on the proposed project until the issues
we have outlined are addressed. Most importantly, the preparation and circulation of a
supplemental EIR for this project should be conducted before the Council takes any action on the
proposed Airport Business Area Integrated Conceptual Development Plan.
We urge the Council to defer any decisions on this project until the adequate information the
Council needs to make a decision is provided.
Councilwoman Leslie Daigle
City of Newport Beach
September 28; 2010
Page 5
Respectfully,
Capital Partners, LLC`
ec: Mayor Keith Curry, District
Mayor Pro Tern Michael Henn, District l
Councilman Steven Rosansky, District -1
Councilman Don Webb, District 3
Councilman Edward Selich, District 5
Councilwoman Nancy. Gardner, District
SWood@newportbeachca.gov
Kyle Weichert, Stoneridge Capital Partners; LLC
Tracy Perrelle; Stoneridge Capital Partners, LLC
Pamela Sapetto, Sapetto Group Inc;
Andrea Maloney, Sapetto Group, Inc,
David Waitc „JMBM'
1� f Tom Muller
manatt Manatt, Phelps & Phillips, LLP
manatt I phelps I phillips Direct Dial: (310) 312 -4171
E -mail: TMuller @manatt.com
September 27, 2010 Client - Matter. 41392 -031
Honorable Members of the City Council
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
Re: Airport Area Integrated Conceptual Development Plan — Conexant Easement
Ladies and Gentlemen:
We represent Conexant Systems, Inc., one of the two applicants for City approval of the
proposed Airport Area Integrated Conceptual Development Plan. This letter addresses an issue
raised at the September 9, 2010, hearing of the Newport Beach Planning Commission on this
matter, which is also the subject of a letter dated September 24, 2010 from John S. Adams &
Associates, Inc. to Councilmember Daigle.
As recommended to you by the Planning Commission, the Airport Area Integrated Conceptual
Development Plan calls for several accessways from the proposed development on the Conexant
site to the adjoining streets. One of those accessways is an easement connecting the Conexant
property north to Birch Street (circled in red on the attached graphic).
At that hearing, representatives of John S. Adams & Associates, Inc., representing the owners of
the land encumbered by the easement, called into question Conexant's right to use the easement
for the proposed residential redevelopment of the Conexant property. The speakers and letter
claim that the easement is in some way limited so as to preclude its use for the proposed
residential project.
The easement contains no such limitations. It is clear and unconditional.
The easement (copy attached) granted Rockwell, then the owner of what is now the Conexant
property, "a non exclusive easement for passage in, over and along the [Adams] real property . .
. including the right to maintain driveways, roadways, sidewalks and passageway on said
property." The grant is broadly- worded and the document contains no restrictions at all on the
use of the easement —it is not limited to any particular volume or type of traffic or any particular
use of the Conexant property. This is not an ancient easement —it was granted in 1978, an era in
which drafters of easements were fully capable of writing restrictions where restrictions were
intended. The parties clearly intended that Conexant's rights be broad, for they inserted no
restrictions on use of the easement, notwithstanding the Adams' unfounded speculations as to
what the "original intent of the easement" may have been.
11355 West Olympic Boulevard, Los Angeles, California 90064 -1614 Telephone: 310.312.4000 Fax: 310.312.4224
Albany I Los Angeles I New York I Orange County I Palo Alto I Sacramento I San Francisco I Washington, D.C.
manatt
manatt I phelps I phillips
City of Newport Beach
September 27, 2010
Page 2
Since the easement was put in place, it has been continuously used by the employees and
contractors of Conexant and its precedessors, as well as members of the public who wished to
sell to or buy from or otherwise do business with those companies. When the properly is
redeveloped as a residential project, the easement will continue to be used by the owners and
occupants of the (new) buildings constructed on the property and their visitors. It is not
proposed as a City street or thoroughfare, but only as a means for owners and occupants of the
project and their visitors to come and go from exactly the same property as was granted the
easement in 1978.
Case law relating to the scope of easements holds quite clearly that the use of an easement may
change to accommodate growth and development. And this is not a situation in which a
dramatic increase in the use of the casement is proposed. The proposed residential project will
not substantially increase the peak use of the easement over the levels of use when the easement
was granted, or even over current levels. While precise data are apparently not available for the
1970s, Conexant's records show that well over a thousand cars per shift, for three shifts per day,
were present at the Conexant property in the late 1970's and early 1980's —and those cars
entered and left the property all at once; at the beginning of each shift, a far more intense peak
use than will result from the proposed residential development.
Of course, this 33 -foot wide easement is just one of several accessways from the proposed
project to the surrounding public streets, so, as is currently the case, traffic will be distributed
over this and the other accessways.
Austin -Foust & Associates, Traffic Engineers; conducted several traffic studies during our
project's design phase to account for all proposed traffic and ensure that the proposed street
alignments will not overload any one point of entry /exit. The City's Ptanning, Traffic, Fire and
Public Works Departments have all reviewed the proposed plan for compliance and their
recommendations have been incorporated into the project design. In addition, the environmental
impact review for the project is underway, which will include in -depth traffic analysis and
provide for mitigation measures to render any traffic impacts insignificant.
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Brown, Leilani
From: Ung, Rosalinh
Sent: Monday, September 27, 2010 9:05 AM
To: City Clerk
Cc: Wood, Sharon; 'Gerald S. Gilbert` Carol McDermott; Kathy Marvick; 'Meserve, Scott'
Subject: FW: Koll /Conexant
Attachments: KollConexantLetter9- 10 -2.pdf
From: Brian Adams [mailto:badams @pacbell.net]
Sent: Monday, September 27, 2010 9:00 AM
To: Ung, Rosalinh
Cc: john adams (office)
Subject: Koll /Conexant
Ms. Ung,
Attached is a letter we have submitted to District 4 council member Leslie Daigle with regard to this Tuesday's City
Council meeting and ther Koll /Conexant conceptual plan. The letter discusses our concerns with the proposed plan.
Please consider the attached letter as our written correspondence to the city regarding our issues with the proposed
Koll /Conexant plan.
Regards,
Brian C. Adams
JOHN S. ADAMS & ASSOCIATES, INC.
5100 Birch Street, 2nd Floor
Newport Beach, CA 92660
Phone (949) 833 -1972
Fax (949) 851 -2055
JOHN S. ADAMS & ASSOCIATES, INC.
5100 BIRCH STREET, NEWPORT BEACH, CALIFORNIA 92660
(949) 833 -1972 FAX (949] 851 -2055
September 24, 2010
Ms. Leslie Daigle
City Council Member
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
Re: Airport Business Area Integrated
Conceptual Development Plan
Dear Ms. Daigle:
I am submitting these comments as the representative of Courthouse Plaza Association. This
association includes 5100, 5120, 5140 and 5160 Birch Street, a four building office complex
located immediately adjacent to the proposed Koll and Conexant projects.
The KolUConexant development proposes to utilize an existing private easement across our
property for public access to Birch Street. The Birch Street driveway is a private easement, not a
public access easement. The easement area is not owned by Conexant. The Koll / Conexant
project proposes to create public parks and public streets which will be directly connected to our
Birch Street private driveway. Public access across this easement is not currently allowed, nor
will it be allowed in the future.
The Airport Business Area Integrated Conceptual Development Plan is required to be in
conformance with the guidelines of the General Plan. One of the key elements of the General
Plan is the "connectivity" of the project with surrounding uses and streets. Exhibit LU23 of the
General Plan, prepared by ROMA Design Group, describes the existing Birch Street driveway as
a "Proposed Residential Street." The current KolUConexant Plan cannot provide this public
street access, because they have no legal right to do so. Therefore, the proposed development
fails to meet the General Plan requirement of connectivity.
The Planning Commission recognized the "connectivity" issue and the KolUConexant plan's
inability to meet this requirement without utilizing the Birch Street easement. In fact, the
Planning Commission's approval of the conceptual plan was contingent upon the project
maintaining the access to Birch Street. Again, the public will not be allowed access across the
Birch Street easement area. Therefore, approval of the conceptual plan amounts to approval of a
plan that cannot be developed as proposed.
Ms. Leslie Daigle
City of Newport Beach
September 24, 2010
Page 2
Furthermore, the project provides access through the Conexant property to the adjacent office
buildings within Kell Center Newport. This access would allow additional traffic from these
adjacent properties to further burden the Birch Street driveway. These adjacent properties have
no legal right to utilize the easement area.
Regardless of the public access issues, which clearly violate the terms of the easement,
Conexant's proposed redevelopment of their property conflicts with the original intent of the
easement. Conexant does not have the right to unilaterally change the use of the easement. The
easement was never intended to provide primary or secondary access to a high - density
residential development, let alone public parks and streets.
The easement was granted in 1978. In 1978, neither parry to the easement agreement, Rockwell
(succeeded by Conexant) nor Aetna (succeeded by Koll), could ever have intended for the Birch
easement to be utilized for a high- density residential development. The zoning at that time
allowed business park uses. Residential use was not allowed.
Conexant's proposed change in use of their property to high- density residential will negatively
impact our property. Upon consultation with legal counsel, it is clear that Conexant's plan is
outside the scope of the easement and adds a significant and uncontemplated burden on the
servient estate. (such estate being our Courthouse Plaza office development). Conexant does not
have the right to materially expand the use of the easement.
With regard to traffic on the easement, the proposed Conexant plan will add 1,244 units to the
Conexant property. Of these 1,244 units, only 632 units will be trip neutral, or replacement trips
for the demolition of the existing Conexant manufacturing facility. The remaining 612 units will
additive, meaning they will create additional traffic above the existing use. These additional trips
will directly burden the easement area and have detrimental effects on our office buildings. In
addition to the additive residential units, the creation of public parks and streets will create
further traffic over the easement area. On top of this, the conceptual plan opens up vehicular
access to the adjacent Koll Center Newport office building and proposed Koll residential
buildings. There has not been a traffic study of the easement driveway that addressed the impacts
of the proposed public parks, public streets and the access provided to the adjacent Kell Center
Newport properties. Clearly the proposed conceptual plan will create significant burdens on the
easement area.
Lastly, the applicants have never contacted us to attempt to alleviate the burdens their project
will place on our property. Instead they have chosen to ignore our legal rights as the fee owners
of the easement area. The applicants should not be allowed to burden adjacent property owners
with their traffic and other impacts.
Ms. Leslie Daigle
City of Newport Beach
September 24, 2010
Page 3
We request that the City Council delay any decision on the conceptual plan until the applicants
resubmit a development plan that relocates the Birch Street access onto their own property. This
driveway can easily be relocated to the adjacent Koll property and connect directly to the current
driveway entry at Teller Avenue. This would help to relieve some of the burden this project will
have on our property. I have attached an exhibit showing the suggested relocation of the Birch
Street driveway.
Sincerely,
JOHN S. ADAMS & ASSOCIATES, INC.
Brian C. Adams
Courthouse Plaza Association
cc: Rosalinh Ung
Michael Henn
Steve Rosansky
Don Webb
Ed Selich
Nancy Gardner
Keith Curry
O