HomeMy WebLinkAbout0 - Correspondence11 Iii
OFFICE OF THE CITY ATTORNEY
DATE: January 24, 2012
TO: Honorable Mayor & Members of the City Council
FROM: Leonie Mulvihill, Assistant City Attorney
MATTER: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) - GOLF REALTY
FUND - 1600 AND 1602 EAST COAST HIGHWAY -
No.: A10 -00773
SUBJECT: City Council Meeting January 24, 2012, (Minor Revision to Agenda
Item No. 14
The Office of the City Attorney and City staff request a modification to the proposed
Development Agreement included in Agenda Item 14.
Specifically, we request that Section 3.1 of the Development Agreement, which is included
on Page 8 of the Development Agreement and marked as handwritten page 495 in the
agenda packet, be revised as set forth in Attachment No. 1.
We have confirmed that the applicant is agreeable to this modification
Submitted by:
OFFICE OF THE CITY ATTORNEY
rpyyL__�
L oe nie Mulvihill
Assistant City Attorney
Attachments: Attachment 1- Legislative Copy of Proposed Change
cc: Aaron C. Harp, City Attorney
Kimberly Brandt, Director of Community Development
[A10- 00773] -M &CC from LM 01.24.12 re Revisions to Section 3.1
ATTACHMENT No.1
which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee ")
in the sum of (i) Ninety -three thousand Dollars ($ 93,000 )
per each residential dwelling units; and (ii) Ten dollars ($10) per square foot of construction for
the proposed golf clubhouse'; and (iii) Ten dollars ($10) per square foot of new construction to
the existing tennis clubhouse, with the unpaid balance of said Public Benefit Fee increased on the
first January 1 following the Effective Date of this Agreement by the percentage increase in the
CPI Index between the Effective Date and said January lst date (the first "Adjustment Date ") and
thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent
January 1 during the Term of this Agreement (each, an "Adjustment Date ") by the percentage
increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the
percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance
be calculated based on the then most recently available CPI Index figures such that, for example,
if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index
figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for
November of the preceding year, the percentage increase in the CPI Index for that partial year (a
6 -month period) shall be calculated by comparing the CPI Index for November of the preceding
year with the CPI Index for May of the preceding year (a 6 -month period). In no event,
however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or
unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date.
Owner shall pay the Public Benefit Fee at the following time(s): (i) As to the residential dwelling
units, at the issuance of the building permit for each individual residential unit; and (ii) as to the
golf clubhouse and tennis clubhouse construction, at the time each building permit is issued to
Owner or on Owner's behalf. Notwithstanding any other provision set forth in this Agreement to
the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee
except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee ]benefit Fee
shall be calculated based on the total square feet of construction for the
proposed golf clubhouse and Owner shall not be entitled to any credit or offset
to the ]Public Benefit Fee for any existing buildings or structures. Owner
acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to
pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of
this Agreement and is not severable from City's obligations and Owner's vesting rights to be
acquired hereunder, and that Owner expressly waives any constitutional, statutory, or common
law right it might have in the absence of this Agreement to protest or challenge the payment of
such fee on any ground whatsoever, including without limitation pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution, California Constitution Article I
Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or
otherwise. In addition to any other remedy set forth in this Agreement for Owner's default, if
Owner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the
right to withhold issuance of any further building permits, occupancy permits, or other
development or building permits for the Project.
3.2 Other Public Benefits.
If the City has entered into a separate Development Agreement with The Newport Beach Country Club,
Inc. (the "NBCC DA "), pertaining to the development of a golf clubhouse on the Property, this requirement
to pay a Public Benefit Fee for the construction of the golf clubhouse shall not apply to Owner, unless
Owner itself is seeking issuance of permits for the construction of the golf clubhouse.
A10 -00773 v401.06. 11 FINAL 8
JAN .2 ZOSZ
ANALYSIS REGARDING USE CONVERSION (PA2005- 140)��.
On November 17, 2011, the City of Newport Beach ("City") Planning Commission
("Planning Commission ") unanimously approved applicant Golf Realty Fund's project, Project
File No. PA2005 -140 (the "Project'), with a conversion of uses, and denied the applicant's
request for a transfer of development rights. The proposed use conversion would convert 17
existing tennis courts on the site into 27 short-term lodging units (the "Bungalows'). The
Planning Commission determined that this use conversion is consistent with the general plan,
and recommended that the City Council approve the Project with the use conversion.
This paper briefly analyzes some of the legal authority in support of the use conversion.
I. SURMARY
o The City has very broad discretion in interpreting its own general plan and other
planning documents.
o The City Council's determination that a project is consistent with the
general plan "carries a strong presumption of regularity."
o A court will only overturn the City Council's interpretation of its own
general plan if "a reasonable person could not have reached the same
conclusion."
o The City Council is free to weigh and balance policy considerations when
interpreting its general plan.
o The use conversion is consistent with the City's general plan.
o The general plan explicitly assigns development intensity to the tennis
courts at Anomaly 46.
o The City Council has discretion to determine how much development
intensity to assign to the tennis courts for purpose of the conversion.
o Because the Project is within a Planned Community District, it does not need to
comply strictly with the zoning code. Nonetheless, the use conversion is
consistent with the intent of the zoning code.
o The use conversion will not set precedent for future projects.
o Use conversions are discretionary—the City Council can continue to
evaluate each proposed use conversion on its individual merits, and
approve, deny, or condition it.
o Anomaly 46 is unique. Anomaly 46 has the only tennis courts the general .
plan grants development intensity to in the City. The general plan does
not grant intensity that could be used for a conversion to uses like parks,
open space, or golf courses.
III, ANALYSIS
A. The City Council has great discretion to interpret its general plan
The City Council enjoys great discretion in interpreting its general plan and other
planning documents. "A city's determination that a project is consistent with the city's general
plan `carries a strong presumption of regularity. "" As such, where a city is interpreting and
applying its own general plan, zoning ordinance, or other local laws to decide whether to
approve a project or issue a permit, courts will only overturn the city's interpretation or
application if, based on the information before the city, "a reasonable person could not have
reached the same conclusion. "2
If the meaning of the general plan is "reasonably subject to debate," courts defer to a
city's interpretation:3
[The] City Council's specific finding that the project is consistent
with the City's general plan contains an implicit finding that the
project is not prohibited by any element of the general plan such as
the district plan; and that based on the evidence before the City
Council, this finding is reasonable. This court will therefore defer
to City Council's interpretation of its own document.
Additionally, a city is free to weigh and balance policy considerations when interpreting
its general plan:4
Because.policies in a general plan reflect a range of competing
interests, the governmental agency must be allowed to weigh and
balance the plan's policies when applying them, and it has broad
discretion to construe its policies in light of the plan's purposes; a
Clover Valley Foundation v. City of Rocklin (2011)197 Cal. AppAth 200, 238; see also
Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.AppAth 704,
719 -720 C`.`It is, emphatically, not the role of the courts to micromanage these
development decisions. Our function is simply to decide whether the city officials
considered the applicable policies and the extent to which the proposed project conforms
with those policies, whether the city officials made the appropriate findings on this issue,
and whether those findings are supported by substantial evidence. ") (italics in original).
No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243 (discussing the
determination that a project was consistent with the general plan); McMillan v American
Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 186.
No Oil, Inc., supra, at p. 243.
Eureka Citizens for Responsihle Government v. City ofEureka (2007) 147 Cal.App.4th
357, 374.
reviewing court's role is simply to decide whether the public
officials considered the applicable policies and the extent to which
the proposed project conforms with those policies. [Citation.]
Where there is conflicting evidence about whether a project is consistent with the
general plan, the City should weigh it. But ultimately, it is in the City's sound discretion to.
decide which evidence to credit. In Greenbaum v. City of Los Angeles, the Court of Appeal, in
discussing whether a tract map was consistent with the general plan, noted that "there was
conflicting evidence before the City Council and when conflicting evidence is present, `[it] is for
the agency to weigh the preponderance of conflicting evidence.' [Citation.] "5 The Court of
Appeal continued, "'[c]ourts may reverse the agency's decision only if, based on the evidence
before the agency, a reasonable person could not have reached the conclusion reached by the
agency. 05
Courts accord great deference to a local agency's determination of consistency with
its general plan "because the body which adopted the general plan policies in its legislative
capacity has unique competence to interpret those polices when applying them in its adjudicatory
capacity.
M. USE CONVERSION
A. The use conversion is consistent with the general plan
The use conversion is consistent with the general plan and not prohibited by any
provision therein. As an initial matter, the general plan does not prohibit use conversions.
Indeed, the City specifically provides for use conversions in the zoning code. As shown below,
the use conversion would be consistent with other general plan policies.
1. The use conversion is consistent with the MU -113 designation
The property, Anomaly 46, is designated Mixed -Use Horizontal 3 ("MU-11Y), which
allows hotel uses:8
The MU -113 designation applies to properties located in Newport
Center. It provides for the horizontal intermixing of regional
commercial office, hotel, multi- family residential and ancillary
commercial uses. Within the Tennis Club, residential uses may be
developed as single family units.
5 Greenbaum v. City ofLos Angeles (1984) 153 Cal.App.3d 391, 407 -408.
6 Ibid. (Italics in original.)
7 Banker's Hill, Hillcrest, park West Community Preservation Group (2006) 139
Ca1.AppAth 249, 273 fn. 23.
8 General Plan at p. 3 -14. .
Conversion of the tennis court development intensity to hotel rooms, a permitted use for the MU-
H3 designation, is thus consistent with the general plan.
2. The general plan contains no overall cap on hotels units
The general plan contains an overall cap of 450 residential units on Newport Center land
designated as MU -H3.9 But it contains no such overall limit on hotel rooms. Even if it did, as
the Planning Commission noted at the November 17, 2011 hearing, certain hotel rooms in
Newport Center have been converted to other uses. Thus, even if there were an overall cap on
hotel units, the proposed use conversion would remain within the cap.
3. The general plan contains no limits regarding floor area ratio or bulk and
massing that a use conversion would exceed
The general plan does not assign a floor area ratio to parcels that are designated MU -H3.
Rather, as discussed further below, the general plan assigns development intensity to those
parcels in Tables LUl and LU2. Similarly, the general plan does not contain restrictions
regarding bulk and massing that would limit the use conversion.
4. The proposed use conversion is consistent with the site's development
intensity
The general plan establishes the development intensity for the site. Policy LU 6.14.2 is to
"[p]rovide the opportunity for limited residential hotel, and office development in accordance
with the limits specified by Tables LUl and LU2.s10
Table LUl lists the density/intensity for hotel as . "65 rooms in addition to those specified
in Table LU2," and for "Other. Nonresidential," "as specified by Table LU2.s11 Table LU2, in
turn, identifies two development limits for Anomaly 46: 3,725 square feet and 24 tennis courts.
So the general plan expressly identifies the 24 tennis courts as part of the development
limit for Anomaly 46, and as part of the density/intensity for Anomaly 46. The tennis courts
would be non - residential intensity, since they do not consist of homes.
The general plan does not assign numerical square footage to the tennis courts. But
clearly, since the tennis courts are listed as intensity, they do not have an intensity of zero. For
the purposes of converting the tennis courts into other uses, it is up to the City's discretion to
determine what intensity to assign to the tennis courts. And this is exactly what the City has
done for other uses with intensity, but no square footage, identified in the general plan.
For example, the general plan lists hotel rooms, theater seats, and tennis courts as
intensity on Table LU2 with no explicit square footage. Despite the general plan's silence on
General Plan at p. 3 -14.
10 General Plan at p. 3 -97.
11 General Plan at p. 3 -14.
4.
this point, the City has exercised its discretion to determine that hotel rooms and theater seats
may be converted to other uses and have square footage associated with them. The zoning code
states that: 12
For purposes of this analysis, theater use shall be allocated 15
square feet per seat. Hotel use shall be allocated the number of
square feet per room at which it is included in the General Plan.
When the General Plan does not specify intensity for hotel rooms,
it shall be as determined by the Director.
The City has the discretion to do the same with these tennis courts. Nothing in the
general plan suggests that the tennis courts should be treated differently than every other use and
assigned an intensity of zero square feet.. Quite the opposite, the general plan lists the tennis
courts as intensity: Interpreting the tennis courts as having no intensity, and thus no square
footage available for conversion, would be contrary to the cannons of statutory construction,
including the cannon to "give effect and significance to every word and phrase of a statute.s13
Assigning the tennis courts an intensity of zero would render Table LU2 a nullity— clearly not
something the City Council intended.
Regulation tennis court dimensions are 78 feet by 36 feet, or 2,808 square feet. To
remain conservative in the analysis below, the square footage number used includes only the
court dimensions and does not include edge area and areas for observation within the fenced
tennis court. The City could specify that each tennis court has a development intensity square
footage of 2,808.
The Tennis Club Site
(Tennis Clubhouse & Courts, Bungalows & Villas)
Component
Floor Areas . ft.
Component
Floor Areas . ft.
Clubhouse
3,725
Clubhouse
3,725
24 Tennis Courts
67,39214
7 Tennis Courts9s
19,956
27 Bungalows
28;219
Bungalow Spa
7,490
Concierge &Guest
Meetin Facll'
2,170
12 Newport Beach Zoning Code § 20.46.040(D).
13 People v. Guzman (2005) 35 Cal.4th 577, 588.
14 2808 sf/ court.
1s 18 of 24 courts will be demolished; and one new stadium court will be constructed.
5
5 SFR N/A
Totals . ft 1 71,117 1 61,560
As shown in the table above, the proposed Project will reduce the existing floor area of
the site's Tennis Club facility by approximately 10,000 square feet. The Project is therefore
consistent with the development intensity of the site.
The five single family residences are not included in the table calculating square footage
because their development rights are being "drawn from the remaining dwelling units that are
allocated for the Newport Center/Fashion Island Statistical Area.s16
11V. THE USE CONVERSION IS CONSISTENT WITH THE ZONING CODE
The Project is located in a Planned Community District, which is essentially custom
zoning. Both the current and earlier versions of the zoning code allow Planned Community
District development plans to conflict with and take precedence over the zoning code.17 So the
use conversion does not need to comply with the zoning code's specific conditions.
Nonetheless, the use conversion complies with the intent of the prior version of the
zoning code, which the Project is subject to. The prior version of the zoning code specifically
allowed conversions of uses that would not cause traffic impacts or that were from uses that
generate more traffic to uses that generate less. 18 Similarly, the existing version of the zoning
code allows use conversions that will not cause unacceptable traffic impacts.19 Additionally, the
prior zoning code states that "Any permitted or conditionally permitted use authorized by this
code and consistent with the General Plan land use designation or designations for land within
the PC District may be included in an approved PC development plan .',20 Thus, converting the
general plan intensity for tennis courts into hotel uses is consistent with the intent of the prior
version of the zoning code.
V. THE USE CONVERSION WOULD NOT SET PRECEDENT FOR FUTURE
PROJECT'S
For at least three reasons, the use conversion of the tennis courts at Anomaly 46 would
not set precedent for the entire City.
16 See Staff Report for Newport Beach Country Club (Aug. 4, 2011) p. 10.
17 See Newport Beach Zoning Code (Oct. 26, 2010) Chapter 20.12.020, subd. D; see also
Newport Beach Zoning Code (Feb. 21, 2008) Chapter 20.35.040.
is Newport Beach Zoning Code (Feb. 21, 2008) Chapter 20.63.050(B).
19 Newport Beach Zoning Code (Oct. 26, 2010) Chapter 20.26.040(D).
20 Newport Beach Zoning Code (Feb. 21, 2008) Chapter 20.35.030(B).
RE
A. The City already allows use conversions
The City already allows use conversions under the zoning code, and the City has
approved use conversions in the past. So the proposed use conversion is not a new mechanism
that the City has never used before. The key difference between the proposed use conversion
and previous use conversions is that the proposed use conversion would convert the development
intensity that general plan Table LU2 gives to the tennis courts to another use, and other use
conversions involved other uses. But in its essential elements, the proposed use conversion is
similar to the other use conversions the City has approved.
B. Use conversions are discretionary _
The City has broad discretionary powers. The zoning code gives the City wide latitude in
approving, disapproving, or conditioning discretionary land use approvals.21 Whether to approve
a use conversion is entirely within the City's discretion. Similarly, Planned Community District
Development Plans are discretionary. 22 Thus, the City will retain its right to approve or deny
each use conversion on its individual merits. Approving the proposed use conversion does not
restrict the City's discretion for future use conversions.
C. Anomaly 46 has unique characteristics
The use conversion would not set precedent for future projects because of the
characteristics of the particular property involved. The general plan grants development
intensity for the 24 tennis courts to Anomaly 46. But the general plan does not grant
development intensity to any other tennis courts in the City.
And Anomaly Table LU2 does not present other situations that are amenable to a use
conversion like that proposed for the Project. The Anomaly Table lists three land uses that are
not designated with specific square footage: hotel rooms, theater seats, and tennis courts. These
items are listed in the column "Development Limit (Other)" in the Anomaly Table. As discussed
above, the City already allows the conversion of hotel rooms and theater seats to other uses.
Anomaly Table LU2 does not grant development intensity to uses like parking lots, open
space, or golf courses. So the proposed use conversion does not set any precedent for those
types of uses.
21 Newport Beach Zoning Code § 20.10.040(C) ("When this Zoning Code provides for
discretion on the part of a review authority, the discretion may be exercised to impose
more or less stringent requirements than required by this Zoning Code and may allow
deviations from the requirements in order to promote orderly land use and development,
environmental resource protection, and the other purposes of this Zoning Code.' ).
22 Newport Beach Zoning Code Chapter 20.56.
7
Items 14 & 15
Exhibits A & B of PC Texts
Item 14: CC 13
Exhibit Item 15: CC] 4
19
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MICHAEL ?_ CUPERO, ESQ.
January 24, 2012
Honorable Council Members, Newport Beach City Council
C/O Leilani Brown, City Clerk
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663
BY ELECTRONIC MAIL ONLY
Re: Tanuary 24.2012 City Council Items 14 and 15: Golf Realty Fund (PA 2005 -140) and
Newport Beach Country Club, Inc. (PA2008 -152)
Dear Honorable Councilmembers:
Although documentation confirming the shared ownership status of the properties
affected by above - referenced projects ( "Properties ") has already been lodged with the
City (and is a matter of public record), I thought it would be prudent to provide with
you relevant portions of the recorded Owner's Agreements for both projects for your
consideration and file.
As reflected herein, fifty percent of each of the Properties is owned by entities other than
Golf Realty Fund. These entities, including the Fainbarg Family Trust, Mira Mesa
Shopping Center -West, LLC, and Mesa Shopping Center East, LLC, are managed by my
clients, Mr. Elliot Feuerstein and Mr. Irving Chase. Thank you.
Sincerely,
vm��
Michael Recupero, Esq.
Ecc:
Mr. Elliot Feuerstein and Mr. Irving Chase
Kimberly Brandt
Leonie Mulvihill, Esq.
31877 Del Obispo St. - Suite 204 • San Juan Capistrano, CA 92675-3228
Ph: 949-429.6300. • Fax: 949.429.6303
0 Hill Properties
One Upper Newport Plaza
Newport Beach, CA 92660
THE QRIQ� Qp THIS UQCOHENT
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LEE a. BRANCH, COVITY ftEC0.°DER
QRaNOE COUNTY RECOBTER15 OFFICE as
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AGREEMENT BETWEEN REAL PROPERTY OWNERS
NEWPORT BEACH COUNTRY CLUB
Newport Beach, California
This Agreement Between Real Property Owners ( "Agreement ") is entered into by
and between O Hill Properties, a California limited partnership ( "0 Hill"), the Fainbarg
Family Trust dated April 19, 1982 ( "FFT ") and Mesa Shopping Center -Fast, a California
general partnership ( "Mesa "). O Hill, FFT and Mesa are sometimes referred to singularly
as an "Owner" or "party" or collectively as the "Owners" or "parties ".
RECITALS
A. The Owners desire to own, lease, manage, maintain, refinance, encumber and
hold for investment, as tenants in common, that certain real property comprising'
approximately 132 acres with improvements thereon, commonly identified as Newport Beach
Country Club located at 1600 East Pacific Coast Highway, in Newport Beach, California
and legally described in Exhibit "A" attached (the "Property').
B. The Owners have discussed the co- ownership of the Property and have
concluded that to avoid conveyancing and ownership problems created by death, marital or
other dissolution, bankruptcy or insolvency, disputes and the like, it is in the best interest of
each Owner that the holding of the Property be governed by an agreement which defines the
rights and duties of each Owner in the form of this Agreement.
C. The Owners also believe it necessary and appropriate to have one Owner be
the managing Owner for purposes of accounting and administration.
NOW, THEREFORE, in consideration of the foregoing Recitals and the conditions
and covenants hereinafter contained, the Owners hereby agree as follows:
D' At this time, Exhibit "B" attached hereto and by this reference incorporated
herein reflects the ownership interests in the Property.
E. It is the purpose of this Amendment for Mira Mesa -West and NBCC Ltd to
assume and agree to be bound by the terms and conditions of the Original Agreement.
NOW, THEREFORE in consideration of these Recitals and the conditions and
covenants hereinafter contained, it is agreed as follows:
1. Mira Mesa -West and NBCC Ltd hereby acknowledge having received a copy
of the original Agreement, having read the Original Agreement and agree to assume the
duties imposed upon owners of the Property thereunder and to be bound by each and every
term and condition of the Original Agreement,
2. Except as amended hereby, the Original Agreement shall remain in full force
and effect.
EXECUTED as of March 12, 1993, at Newport Beach, California.
Owners:
0 Bill Properties, a
California limited partnership
By:
Robert 0 HlU ,
its General Partner
The Fainbarg Trust,
dated April 19, 1982
B y CU&11)
Allan Fainbarg, Trustee
Mesa Shopping Center -Fast
A California General Partnership
By: t}---
Amol D. Feuerstein
Managing General Partner
By: �.rx,C,etice�a sal .
Elliot Feuerstein
Managing General Partner
Mira Mesa Shopping Center -West
A California General Partnership
By: Gd_ GrC- tfi! . r, z�@2 By: �" R, , ' �a L-
Sara Fainbarg, Trustee „/ Arnold D. Feuerstem
Managing General Partner
By: 0- � rw.
Elliot Feuerstein
Managing General Partner
O
Newport Beach Country Club$
a California limited partnership
By: 0 Hill Properties, a
California limited partnership
Its General Partner
General Robert 0
i
V
E%MIT "All
Parcel 1 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange,
State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel
Maps, in the office of the County Recorder of Orange County.
Parcel 3 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange,
State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel
Maps, in the Office of the County Recorder of Orange County.
0 Tull Properties
One Upper Newport Plaza
Newport Beach, CA 92660
Attn: General Counsel
Allan and Sara Fainbarg, Trustees
of The Fainbarg Family Trust dated
April 19, 1982
890 W. Baker
Costa Mesa, CA 92626
Mesa Shopping Center -East
c/o Arnold Feuerstein
2293 W. Ball Road
Anaheim, CA 92805
Mira Mesa Shopping Center -West
c/o Arnold Feuerstein
2293 W. Ball Road
Anaheim, CA 92805
With a copy of any notices to:
Mesa Shopping Center -East
Mira Mesa Shopping Center -West
clo E11iot Feuerstein
8294 Mira Mesa Blvd.
San Diego, CA 92126
Newport Beach Country Club,
a California limited partnership
One Upper Newport Plaza
Newport Beach, CA 92660
Attn: Robert 0 Hill
25%
25%
15%
10%
25%
®� ;AAL
RECORDING REQUESTED BY AND TIM N f- I 10,3( }ti661
WHEN RECORDED RETURN TO: ;_
0 Hill Properties recorded in Uffi_ial Record=
One Upper Newport Plaza of Orause County, C lifonli.a
Newport Beach, CA 92660 Lee A. Ermch" County Recorder
i 3 ?e i of it i Q55i
(Spat
AGREEMENT BETWEEN REAL PROPERTY OWNERS
BALBOA BAY CLUB RACQUET CLUB
Newport Beach, California
This Agreement Between Real Property Owners ( "Agreement ") is entered into by
and between 0 Rill Properties, a California limited partnership ( "0 Hill"), The Fainbarg Trust
dated April 19, 1982 ( "TFT "), Mesa Shopping Center -East, a California general partnership
(Mesa - East), Mira Mesa Shopping Center -West, a California general partnership ( "Mira Mesa -
West"), and Newport Beach Country Club, a California limited partnership ( "NBCC Ltd ").
0 Hill, TFT, Mesa -East, Mira Mesa -West, and NBCC Ltd are sometimes referred to
singularly as an 'Owner" or "party" or collectively as the "Owners" or "parties ".
RECITALS
A. The Owners desire to own, lease, manage, maintain, refinance, encumber and
hold for investment, as tenants in common, that certain real property comprising
approximately 6,099 acres with improvements thereon, commonly identified as Balboa Bay
Club Racquet Club Iocated at 1602 East Pacific Coast Highway, in Newport Beach, California
and legally described in Exhibit "A" attached (the "Property "),
B. The Owners have discussed the co- ownership of the Property and have
concluded that to avoid conveyancing and ownership problems created by death, marital or
other dissolution, bankruptcy or insolvency, disputes and the like, it is in the best interest of
each Owner that the holding of the Property be governed by an agreement which defines the
rights and duties of each Owner in the form of this Agreement,
C. The Owners also believe it necessary and appropriate to have one Owner be the
managing Owner for purposes of accounting and administration.
6/10/93
EXIIIIIIEIIT "Av
LEGAL DESCRIPTION OF THE PROPERTY
Parcel 1:
That portion of Block 93 of Irvine's Subdivision in the City of Newport Beach, County of
Orange, State of California, as per Map recorded in Book 1 Page 88 of Miscellaneous Maps in
the Office of the County Recorder of said County described as follows:
Lot A as shown on that certain Parcel Map filed October 10, 1967 in Book 10 Page 20 of
Parcel Maps in the Office of the County Recorder of said County, and Parcels 1, 2 and 3 as
shown on that certain Parcel Map filets February 11, 1977 in Book 92 Pages 13 and 14 of
Parcel Maps, in the Office of the County Recorder of said County.
Parcel 2:
As easement for ingress and egress over the most Southerly 190.00 feet of Parcel 1, in the
City of Newport Beach, County of Orange, State of California, as shown on that certain Parcel
Map filed October 10, 1967 in Book 10 Page 20 of Parcel Maps, in the Office of the County
Recorder of said County.
A
EXIIIBIT "Bu
OWNERSIHIP INTERE ST IN THE PROPERTY
Name and Address of Owner Interest in Property
Allan and Sara Fainbarg, Trustees 257a
of The Fainbarg Trust dated
April 19, 1982
890 W. Baker
Costa Mesa, CA 92626
Mesa Shopping Center -East 15%
c/o Arnold Feuerstein
2293 W. Ball Road
Anaheim, CA 92805
Mira Mesa Shopping Center -West 10%
c/o Arnold Feuerstein
2293 W. Ball Road
Anaheim, CA 92805
With a copy of any notices to:
Mesa Shopping Center -East
c/o Elliot Feuerstein
8294 Mira Mesa Blvd.
San Diego, CA 92126
Newport Beach Country Club 25%
One Upper Newport Plaza
Newport Beach, CA 92660
Attn: Robert 0 Hill
0 Hill Properties 25%
One Upper Newport Plaza
Newport Beach, CA 92660
Attn: Robert O Hill
M ig
RECEIVED
AM
MICHAEL RECUPE `E(3 10' 40
C__C7 OF
January 19, 2012
Honorable Council Members, Newport Beach City Council
C/O Leilani Brown, City Clerk
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663
BY ELECTRONIC MAIL AND U.S. POST (CERTIFIED MAIL)
Re: Tanuary 24, 2012 City Council upcoming items Newport Beach Country Club, Inc.
(PA2008 -152) and Golf Realty Fund (PA 2005 -140)
Dear Honorable Councilmembers:
This letter is written on behalf of one -half of the fee ownership of the Newport Beach
Country Club and Tennis Club' (the "Properties ") which you are considering for
entitlement on Tuesday, January 24, 2012.
Newport Beach Country Club (PA2008 -152).
We reiterate our support for the Newport Beach Country Club, Inc. plan as a reasonable
exercise of our tenant's authority to improve the leasehold interest. The architecture,
design and layout of the plan are well thought out, and accommodate their operations
well. We are supportive of the Planning Commissions' approval of the narrowed, one-
way, drive aisle parallel to Pacific Coast Highway ( "PCH ") which creates an expanded
landscaped buffer and further separates the Club parking lot from PCH. As the
testimony at the Planning Commission illustrated, this feature preserves critical
longstanding benefits for both the tenant and the adjacent nursery who rely on the
access for their business' success. Lastly, we have heard no cogent reason from Mr.
OHill as to why he was attempting to entitle a separate clubhouse on the Country Club
site, to the detriment of our tenants.
t The Fainbarg Family Trust (managed by Irving Chase), the Mira Mesa Shoppping Center -West, and the
Mesa Shopping Center -Fast (managed by Elliot Feuerstein), collectively own 50% of the Properties.
31877 lh_! dbispnSt. • Suitc 204 • Sam Juan Capistrano. CA 92675-32=8
Ph: 949.420.6300 • F91x: 949.429.6303
City of Newport Beach
January 19, 2012
Golf Realty Fund (PA2050140).
This project has been processed to the exclusion of my clients. As the City file will
reflect, my clients maintain that:
a) Robert OHill, or his associated entities, including Golf Realty Fund, do
not have the unilateral authority to go forward with this application, or
entitle this property without the consent or input of the co- owners; and,
b) Robert OHill has been removed as the Managing Owner of both NBCC
and Tennis Club Properties. (Mr. OHill is contesting his removal.)
Both of these topics are the subject of litigation scheduled to commence by arbitration on
April 2, 2012. We would, once again, ask that the City consider postponing a decision
on this project until these issues get worked out.
In the event the City is inclined to push forward we, again, demand that any
encumbrance on the Property, including the Development Agreement, require the
consent of all the owners of the property. For reasons that are not understood, the
Development Agreement for the Tennis Club property was changed between the date
of Planning Commission approval and the new proposed version to delete important
protections for my clients — essentially paving a path for Robert OHM to unilaterally
encumber the land without the owners' written consent. We believe this is inconsistent
with the law, and an appropriate topic of inquiry at the upcoming hearing.
Thank you for your consideration.
Sincerely,
va)-�
Michael Recupero, Esq.
Ecc:
Elliot Feuerstein
Irving Chase
John Olson, Esq.
Kimberly Brandt
Leonie Mulvihill, Esq.
PAGE MICHAEL RECUPERO, ESQ.
i
• RECEIVED
2012 JAN 18 AN 10: 44
Try U Y CLERIC
CI P anuary 13, 2012
C, E_k
Office of the Mayor, Mayor Nancy Gardner
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92658 -8915
Dear Mayor Gardner,
The Newport Beach Country Club, Inc. is proposing to replace the aging Newport Beach
County Club golf clubhouse. Our proposal is scheduled for the January 241i City Council
hearing and we would like to offer you an opportunity to meet with the Newport Beach
Country Club project team before the January 241i hearing so that we can brief you on
our proposal.
We have been working with the City of Newport Beach Planning staff for over three
years and were very pleased to receive a recommendation for approval of our project by
City staff and then to receive the November 171i Planning Commission's
recommendation that the City Council also approve our plans. Our plan for the
reconstruction of our clubhouse at the Newport Beach Country Club is straightforward.
However, we would appreciate the opportunity to provide you a briefing on our project
because of the complexity created by a competing application filed by Golf Realty Fund,
Inc. which is also scheduled for City Council consideration on January 241i.
We are happy to have the briefing at the Newport Beach Country Club or at a location of
your choosing. We would also suggest briefings in groups of two or three Council
Members if that is agreeable. We would like to set the briefings for early next week as I
will be out of town next Friday.
I look forward to hearing back from you.
Thank you,
David C. Wooten, Chief Executive Officer
Newport Beach County Club
949 - 630 -4505
T if r
NLNNTP )Rr BEACH
C 6 C S T R 1 C L L R
1600 East Pacific Coast Highway • Newport Beach, California 92660 • (949) 644 -9550 • Fax(949)644-5057
www.newportbeachcc.coni
ArNsirwg Garden Centers
'An Employee -Owned Company"
2200 E. Route 66, Suite 200 Glendora, CA 91740 -4673 (626) 914 -1091 Fax (626) 335 -0257
January 12, 2012
Newport Beach City Council
Re: Newport Beach Country Club Improvements Affecting Armstrong Garden Centers
Located at 1500 East Coast Hwy., Newport Beach, CA 92660
Dear Esteemed Council Members:
I am the Vice President of Operations for Armstrong Garden Centers, including the
location immediately north of Newport Beach Country Club. I respectfully ask for your -
support of the site plan approved by the Newport Beach Planning Commission on
November 17, 2011.
The approved site plan includes a critical access way to our Garden Center. I have
had many opportunities to see the financial impact of temporary access closure to our
garden centers. Unfortunately, they typically result in a 25% decline in our revenue. While
these temporary losses in revenue can, and must, be absorbed, a permanent loss in
revenue cannot be. Our customers insist on convenience and a visit to our Newport Beach
location will no longer offer that convenience without access to a traffic signal that allows a
left or right turn onto Coast Highway.
Another major concern that outweighs convenience is safety. We receive multiple
deliveries on a weekly basis and due to the high rates of speed motorist maintain on this
stretch of Coast Highway, there is a great safety concern with delivery trucks attempting to
merge in to oncoming traffic from either of our driveways. Access to the traffic signal at the
entry to the Country Club eliminates these safety concerns and provides a safe right -of -way
for delivery trucks, our customers, and the residents of Newport Beach.
We enjoy doing business in Newport Beach, but if we were to lose this access way,
the loss of revenue, coupled with the potential safety issues would make it impossible for
Armstrong Garden Centers to continue to operate in Newport Beach.
Thank you for your consideration,
Ian Hydoski
Vice President of Operations
Armstrong Garden Centers Inc
IH:eam
IBC PLAN
GENERAL PLAN VIOLATION
Proposed IBC Golf Clubhouse exceeds the
recent voter approved General Plan by
20,000 sq. ft. or 63%
Proposed IBC Golf Parking Lot is 166,354
sq. ft. of asphalt, 150% larger than the
Pro Owner Plan.
• - • 97e. ed IBC Clubhouse frontage and
d walls eliminate virtually all views olf course from the PCH and Entry.
Proposed IBC Clubhouse building is 140'
wider and 1 00' feet closer to PCH in
comparison to the Property Owner Plan.
lo[
'jREEN
Co 11 0
4\e
Se 211 ►
M
I IBC Proposed
I Parking Lot
I
IBC Proposed —�
lMy —,y: ; Loading Area
11
►1
1 ►1
/
2, 00 Property Owner Plan 1
f5ri Greenskeeper Area
,I __ ► 1
r o ..'
Y 1
Mainenance Bldg.
8,565 sq ft
Proposed IBC Plan crowds the existing
16th "T" box.
Proposed IBC Clubhouse is 100 ft closer
and 120 ft wider than the Property Owner
Plan as viewed from PCH.
ARMSTRONGS
NURSERY
EXHIBIT 1 OF 5
1
1�
�I
X
260'
, P
— 380' \ R E
i
\Go \Cour=
8
,
-IKr perly Owner
s 7
Footprint Golf Clubh use
OR r• . ft f♦ \
IBC Clubhouse
Footprint
30,693 sq ft
i 300'
I
t
1
1
t
I
1
I
t _
Extent of IBC
1 proposed AsphaMll
I W
IBC seMae Owl
► Vehicle Access
r
Extent of IBC
proposed
— ApVing
�1
�I
Property Owner Plan has 78,970 sq ft or Extent of IBC
250% more landscaping than the IBC Plan. Propos , ed a
This significantly enhances views from
Irvine Terrace, PCH and exiting the Country �� *. �`O
Club. ��
Property Owner Golf Clubhouse has a 400
foot setback from PCH protecting the
existing golf course views and providing a
strong Entry statement while preserving
existing views to Open Space.
Property Owner Golf Parking Lot's interior
medians and generous landscaped
setbacks reduces the visual dominance of
the parking lot and creates a significant
landscape corridor adjacent to PCH
1
1 I
1
t
1 I
1 I
1 1
1 1
1 r
RPM
of IBC pro d
Parking Lot & Access Road _ i r
PACIFIC COAST HIGHWAY
CLUB D
m
o`
d
N
0
r
A
CTnIF CIITP. UnITCIF �C. PA- DVIkTC` Tnrr ('lIAAnAnTCCNkTC r-V®
The proposed IBC plan eliminates 70% of
public view of the open space golf course.
Public banquet facilities with large prefunc-
tion areas not typical and inconsistent with
the private golf clubhouse.
IBC's proposed public banquet facilities
and prefunction areas are in conflict with
exclusive, private golf club and golf
member and will create traffic.
The proposed IBC Clubhouse is 102 ft
closer to PCH and 120 ft wider than the
Property Owner's clubhouse.
1 To
IBC Maintenai...�
Bldg Footprint
8,565 sq ft
60 Feet Closer to the
16th Tee Box
1
15th Green
i
18th Green
Property Owner —
Golf Clubhouse
Footprint 26,044�+dt-
\0C eient of Gradl rg�
i
i
• - I 1
The proposed IBC parking lot has been {
ex anded to the west and will re uire the
rmoof existing trees.
The proposed IBC Plan increases the
number of parking spaces from existing
and increases the asphalt area maintaning
a swap meet appearance to the parking
lot.
Long north /south rows of parking magnify
the shopping center appearance of the
parking lot.
M.
Practice _f_f
Green
�OF
7
a
00 G�
All
r
(� r#lpd .,, Members / ��.:�
Cntry \
t ws ° \
s,
Given to Golf Entry \
F- 17 Steps Extent oJ,Properfy
Banquet 111 0' Owner's Proposed
Entry ...... Parking Lot
102.87/
Retaining Wall
Retaining Wall ;
•. 10 1M.- Mlivil.
300'. The proposed IBC Plan
removes existing significant
I open space turf at Entry and
M M ' n front of Visitor Serving
use.
i '
Frontage road retention creates significant
traffic hazards and visual impacts along 65
If of Pacific Coast Highway. Frontage
Easement terminated in 1997 per Records
Document #19970630399
PACIFIC COAST HIGHWAY
Identical straight, narrow landscaped
setback along PCH frontage as exists
EXHIBIT 2 OF 5
TRC k PRCIPFPTV n-XA1KT1PR'c PT A ITT CMAPAUTCCIM �®
PROPERTY OWNERS PLAN AREAA
18th
GREEN
x0000
I'
/Ne,
_
75 _ _�— 1
IBC Proposed '
1 Parking Lot
\ i 1
—} Turf Removed
IBC Proposed
Loading Area
� 1
1
Property Owner Pla
Greenskeeper Area
1
alnenance Bldg.
8,565 sq ft j
_ � •rt
t
PROPERTY OWNERS PLAN AREA B
I
I\
m
i;
a
n
b
71-00 . %\
1 �
1
1
1
1
1
1
I
I
I
1
I
I
1
pr 1
KEY MAP
-- - - --�A
I I
I I
I I
I I
I I
I I
I I
V I
43.394 sq ft I r I
Open Space j V
L- -- - - ---
.lam *• .. +•��.� ^;
t S%
44. _
d
D
d
N
7
O
r
a
A
PACIFIC COAST HIGHWAY
B
I I
I I
I I
I I
I
I y I
I I
Property Owner design visually draws the
golf course toward the entry by providing
generous open spaces. Clubhouse Drive
ends in a T- intersection with dramatic views
of open space, Golf Course and
Clubhouse. Additionally, this open space
area also creates pleasing views from the
Bungalow units to the Golf Course
Clubhouse, and ocean views.
Avery gracious open space area has been
designed to create a prestigious approach
to the Golf Clubhouse. The landscaped
median helps frame Golf and Clubhouse
views.
EXHIBIT 3 OF 5
BLOW UP COMPARISONS NFWPORTRFAC'HCYl1TNTRYC'T1IR 4®
124' + /- closer to Coast Highway
1, .00 aooww Mw% *Am
10ft offill I , IBC Proposed Clubhouse
Golf Club Parking Lot _ _
Existing Grade r
Grade 10 ft higher (17 steps) than Golf Parking Lot
Truck Type
Rear Dump
Truck
Bottom Dump
Truck
'Wards Per Truck
10 cu yds
14 cu yds
Total Truck Trips
3,906
2,730
Daily Trips - Assumes 15 Trucks,
4 cycles per day
60
60
Total Work Days
65
47
Total Months
3.25
2.35
EXHIBIT 4 OF 5
GOLF COURSE
I
RP RKiNG
COAST HIGHWAY I
I,
t
GOLF CLUBHOUSE SITE SECTION COMPARISONS
NEWPORT BEACH COUNTRY CLUB ® updated 10/3/2011