HomeMy WebLinkAbout11 - City Hall Reuse Amendments 3300 Newport Blvd & 475 32nd St - Correspondence03/26/2013 2:47PM FAX 8466501181 HAWKINS LAW OFFICES
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NAME
FAX NUMBER
PHONE NUMBER
Leilani Brown, City Clerk
(949) 644 -3039
From: RobcrL C. Hawkins
Client/Matter; Friends
Date: March 26, 2013
Documents: Comments on CC Agenda Item No. 11: FMND re City Hall Reuse Project
Pages: 7*
COMMENTS: Original will follow as indicated. —
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03/26/2013 2:47PM FAX 8486501181 HAWKINS LAW OFFICES
LAW OFFICES OF ROBERT C. HAWKINS
March 26, 2013
Via Facsimile Only
Keith Curry, Mayor
Members of the City Council
c/o Leilani Brown, City Clerk
City of Newport Beach
3300 Newport Blvd.
Newport Beach, California 92663
Re:
Greetings:
@0002 /0008
Thank you for the opportunity to comment on the captioned matter. This firm represents
Newport Residents United Again, a community group based on the original Newport Residents
United which lobbied in the early 1970s to establish the original height limit for the Coastal Zone,
the Friends of Dolores, a community action group dedicated to ensuring compliance with state and
local laws including the California Environmental Quality Act, Public Resources Code sections
21000 et seq., Friends of City Mall, a community action group dedicated the preservation of the "City
Hall" site for civic purposes, and others in the City in connection with the captioned matter.
We have commented on the captioned DMND several times and offer these additional further
comments on the captioned document.
First, although we have repeatedly requested that you provide us with all notices in
connection with the captioned matter, we have yet to receive any such notices. Please comply with
the requirements of the California Environmental Quality Act, Public Resources Code sections
21000 et seq. Again, as throughout this process, the City has failed to provide us with notice
required by CEQA and other laws.
Second, the Response to our January 17, 2013 Letter Comment 4 states that:
"This comment suggesting that the IS/MND was unreadable is the only comment
received that indicated the reviewer had difficulty reading and understanding the
information and analysis presented in the document. The IS /MND was distributed
to the State Clearinghouse, the California Coastal Commission and other
responsible public agencies and/or interested individuals and organizations. With
the single exception of this commenter, the City did not receive any comments
from any other recipient of the IS /MND that indicated reviewers had difficulty
reading the document or that it prevented them from understanding the findings
and recommendations included in the environmental analysis. Recirculation of the
IS/MND is not necessary."
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Keith Curry, Mayor
Members of the Ciry Council -? • March 26, 2013
Final MND, page 1 of Responses to our January 17, 2013 letter. This is incredible. It is also
factually incorrect.
At the January 17, 2013 hearing, all of the public commenters criticized the readability of
the DMND. Moreover, at the hearing, staff reported on the project and then introduced the MND
preparer, Mr. Keeton Kreit2er. Mr. Kreitzer discussed the MND.
The very first question asked of the EIR preparer, Keeton Kreitzer, concerned the
italicized document. Chairman Michael Toerge asked: "Why was the document in italics ?"
(Emphasis in the original.) Mr. Kreitzer responded that he had a computer glitz and the entire
document printed in italics. He said that it was not to mislead, to confuse or to make the
document less readable. Chair Toerge responded that "it certainly did make the document
much less readable." See audio minutes of the January 17, 2013 meeting (the audio minutes are
not measured so we cannot provide a location in the audio minutes) (Emphasis supplied). Other
members of the public including Jim Mosher and Denys Oberman also criticized the readability
of the document. Given these comments including the Planing Commission Chair's comments,
the document must be recirculated for public review and comment.
We note that the City has attempted to cure this defect retroactively by providing the
FMND in non - italic font. Unfortunately, this is not appropriate and cannot cure the problem.
The public commented on the italicized document, and the italics made the document
unreadable. The City Council will now have the luxury of the non - italicized document but the
public was not given this opportunity daring the public comment period which closed the day
after Christmas 2012. Given that the City has now circulated a non - italicized version of the
document, the City must recirculate this reformatted document for public review and comment.
As for the Responses to Comment Nos. 5 and 6, although they state that they are
analyzing the Project's impacts on the worst case scenario, the Responses fail to do this. First,
the proposed shade- shadow analysis was not part of the DMND, and the public has not had the
opportunity to review and comment on this study. The FMND without italics and with the shade
study must be revised and recirculated for public review and comment.
Second, the shade study is incomplete. The Project description includes increasing the
Shoreline Height Limits from thirty -rive (35') feet to fifty -five (55') with sloping roofs and
elevator towers to sixty (60') feet and architectural features to sixty -five (65') feet. The shade
analysis displays only shade for the fifty -five (55') feet, not the higher sloped roofs, elevator
towers and architectural features.
Moreover, no one verifies that the shadows are correct and that the analysis correctly
shows the shadows generated at the site and surrounding areas. This City has suffered from
unscrupulous persons who have fudged height issues: Andrew Goetz; the entitlement persons for
the Mormon Temple; and others. We need a reliable shade analysis to evaluate the potential
impacts of the Project, not some seat -of- the - pants, rush -rush analysis.
14 Corporate Plata, Suite 120
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Keith Cuny, Mayur
Metnhera of the City Cmmeil .31 March 26, 2013
Third, even this seat -of -the- pants, rush -rush shade analysis shows shade impacts: the
open space on the Project site will be permanently shaded. As we indicated in our original
comment letter, the DMND states:
"The purpose of allowing buildings, structures and architectural elements to
exceed 35 feet is to promote vertical clustering resulting in increased open space
and architectural diversity while protecting existing coastal views and providing
new coastal view opportuitities."
DMND, page 11 (Emphasis omitted to make the quote easier to read.) See also Response to Coastal
Commission Comment No. 4 ( "Additionally, the purpose for allowing taller buildings is clearly
described within the draft amendment; `...to promote vertical clustering resulting in increased
publically accessible on -site open space and architectural diversity while protecting existing
coastal views and providing new coastal view opportunities. "'
However, Response to Supplemental Comment No. 6 states:
"It is. important to note that the City of Newport Beach has determined that
Shadow sensitive uses include, but are not limited to, residential, recreational and
park areas, plazas, schools, and nurseries. Furthermore, the City considers that a
significant impact related to shadows occurs when 50 percent of shadow sensitive
use or area is in shade /shadow for at least 50 percent oFthe time between 9:00
a.m, and 3:00 p.m. Pacific Standard Time (PST) between late October and early
April or between 9:00 a.m. and 5 :00 p.m. Pacific Daylight Time (PDT) between
early April and Late October."
Section 7.0 of the FMND, page 2. However, the seat -of- the -pants, rush -rush shade analysis fails
to analyze the impacts on the Project site open space areas, e.g. the park areas. The FMND
recognizes these as shade sensitive areas, but the analysis shows that this area will be in shade for
most of the day. Yet, the FMND fails to recognize or appreciate this Project impact.
At the January 27, 2013 Planning Commission, we commented regarding such impacts.
Planner Campbell stated that Project impacts on the Project site were not impacts that needed to
be analyzed, addressed, Or mitigated. However, the FMND is replete with analysis of such
impacts including impacts regarding air quality and noise. For instance, Section 4.8(e)
concerning Hazards considers and discusses whether the Project will expose Project residents to
hazards including noise. Section 4.12(a) discusses the potential impact that the Project may
create by exposing Project residents to unwanted noise. Section 4.3(e) discusses the potential
that the Project may expose residents to objectionable odors.
Here, the Project and its huge shadow eliminates the benefit of the open space included in
the Project Description and which necessitates the Project's need to exceed the height limit. The
Project's exceeding the height limit actually will create a significant and unmitigated impact: the
shadow which undercuts and destroys the benefit of the open space. This is a significant Project
impact which requires mitigation. Indeed, it likely will require modification of the Project to
comply with the current height limits which likely will have no such shade impacts.
14 Corporate Plaza, Suitt 120
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Keith Curry, Maynr
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4 • Match 26, 2013
Fourth, the Shoreline Height Ordinance and Limitation arose due to citizen action. In the
early 1970s, a group of Newport Beach residents including Joe and Judy Rosener formed
"Newport Residents United ("NRU')." According to Allen Beek who testified on behalf of NRU
when the Council passed the height limit, one of the reasons NRU proposed the height limit was
the construction of the massive condominium towers near the Lido Isle Bridge. However,
FMND maintains that the Project with its height exceeding the current ordinance is consistent
with these large condominiums which gave rise to the height ordinance in the first place. For
instance, the discussion of Aesthetics notes:
"Several other taller residential, office, and a mixed use building are also located
in the vicinity of the project and within the view."
FMND, page 28. See also Response to Coastal Commission Comment No. 4 Also, see Exhibits
4.1 -1 through -7 which show that the only building penetrating the Shoreline Height Limit is the
601 Lido Condominiums and 611 Lido Park Condominiums which led to the Shoreline Height.
Ordinance. Further, Exhibits 4.1 -8 through -11 also show projects built before the Shoreline
Height Ordinance which are not in the vicinity of the Project but are on Pacific Coast Highway in
an area known as Mariner's Mile.
The other structures reference in the graphic entitled "Lido Village Building Height
Analysis" in Response to Coastal Commission Comment No. 4 show that the vast majority of
structures in the vicinity of the Project are within the Shoreline Height Limit, not in excess of
those limits. Only two properties shown on this Analysis are as high or higher than the proposed
Project: 601 Lido Condominiums and 611 Lido Park Condominiums,
The FMND cannot use these anomalies to show consistency with surrounding
development. Indeed, the Mariner's Mile projects are not in the vicinity of the Project site and
should not be considered at all. Further, the 601 Lido Condominiums is unusual as shown in the
Exhibits 4.1 -1 through -7. Without more, these anomalies cannot in and of themselves set the
standard. The standard is far lower: it is the current Shoreline Height Limit of thirty -five (35')
feet.
Fifth, as indicated in our original comments, the FMND refers to the Lido Village Design
Guidelines as regulatory. See Mitigation Measure 4.1 -1 and other references in the FMND
which state that the Guidelines "prescribe" standards of development. These references occur
throughout the FMND, Nonetheless, Response to Comment No. 15 states that:
"The characterization in the Draft IS/MND that the guidelines as regulatory in
nature was unintentional. Rather, the discussion of the Lido Village Design
Guidelines was intended to illustrate that future development must be found to be
consist with the design guidelines for approval."
FMND, Response to Friends' December 26, 2013, page 10. This is very confusing. The first
sentence in this Response suggests that the Guidelines are not regulatory; the second states that
the Guidelines are regulatory. The City cannot have it both ways: if the Project must be found to
be consistent with the Guidelines, then they are regulatory. If they are not regulatory, then the
Project need not be consistent with the Guidelines. Given that the FMND relies upon the
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Keith Curry, Mayor
Members of die City Council 15. March 26, 2013
regulatory understanding of the Guidelines, the Guidelines are part of the Project and must be
analyzed in the FMND.
Indeed, Response to our January 17, 2013 letter Comment No. 9 concerning the
Guidelines states that:
"It is acknowledged that the Lido Village Design Guidelines are not regulatory.
As indicated in the guidelines, the City of Newport Beach is responsible for
design review and project implementation. Project must adhere to adopted
General Plan, zoning politics, and regulations, which outline requirements
specific for individual parcels within Lido Village, including the City Hall
property. Nonetheless, the lido Village Design Guidelines are intended to
influence the theme and character of that development. To that end, the
guidelines addressed all aspects of future land use that may occur within Lido
Village, including edge conditions, pedestrian connection, open space,
sustainability, architecture, landscaping, etc., to ensure that the objectives
articulated in the document are achieved. In addition, guidance is also provided to
achieve the desired visual character and aesthetic. quality within Lido Village,
even though all improvements occurring with the affected area are subject to
applicable regulations and permitting process imposed by the City' General Plan,
zoning code and related ordinances, and other related regulatory requirements.
Finally, the guidelines are intended to provide design guidance for future
development and redevelopment "...with the assurance that others who follow
will be held to the same or similar unifying set of standards. "Thus, while they are
not regulatory, they include guidance f'or promoting compatibility and minimizing
land use conflicts through the implementation of planning and design solutions
that also reduce potential adverse effects."
FMND, Response to January 17, 2013 Comment No. 9, page 4 (Emphasis supplied.) Again, this
does not really address the question. This Response recognizes that the Guidelines are not
regulatory and only provide guidance. However, if so, then how can the FMND rely on
compliance with the Guidelines to mitigate Project impacts? See Mitigation Measure 4.1 -1.
They cannot. Hence, the FMND contains an analysis which requires further discussion regarding
the Guidelines and their mitigation of the Project's impacts. Indeed, as we indicated in our
December 26, 2013 Comment, the Project really includes the Guidelines, and the environmental
document must be revised to address this aspect of the Project.
Sixth, the FMND fails to analyze the Project's impacts on the existing environment. That
is, it improperly compares the Project's impacts, not to the existing environment, but on a
hypothetical General Plan environment. This is legal error.
Recently, the California Supreme Court decided the CEQA issue of environmental
baseline. In Communities for a Better Environment v. South Coast Air Quality Management
Dist. (2010) 48 Cal. 4th 310 ("South Coast AQMD ") , the Supreme Court held that the
environmental baseline is CEQA is generally the existing conditions on the ground. There, the
South Coast Air Quality Management District prepared a negative declaration for a refiner
project by Conoco - Philips. Among other things, the District argued that the environmental
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Keidi Curry, Mayor
MCMhary of [Ile CI[y Council 16 • March 26, 2013
baseline was maximum output of the refinery which had valid permits to operate it at the site
even though the refinery had yet to be built. Among other things, ConocoPhillips argued that
failure to use the maximum permitted operations as a baseline would violate ConocoPhilips
vested rights and contravene CE QA's statute of limitations.
The Court reviewed the case law and stated:
A long line of Court of Appeal decisions holds, in similar terms, that the impacts
of a proposed project are ordinarily to be compared to the actual
environmental conditions existing at the time of CEQA analysis, rather than to
allowable conditions defined by a plan or regulatory framework. This line of
authority includes cases where a plan or regulation allowed for greater
development or more intense activity than had so far actually occurred, n6 as well
as cases where actual development or activity had, by the time CEQA analysis
was begun, already exceeded that allowed under the existing regulations. n7 In
each of these decisions, the appellate court concluded the baseline for CEQA
analysis must be the "existing physical conditions in the affected area"
(,F•nvironmental Planning & Information Council v. County of El Dorado, supra,
131 Cal. App. 3d at p. 354), that is, the "`real conditions on the ground "' (Save
Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87
Cal.App.4th at p. 121; see City of Carmel-by-the-Sea v. Board of Supervisors,
supra, 183 Cal, App. 3d at p. 246), rather than the level of development or activity
that could or should have been present according to a plan or regulation."
Id. at 320 -21. The Court held that:
"Applied here, this general rule leads to the conclusion the District erred in using
the boilers' maximum permitted operational levels as a baseline. By treating all
operation of the boilers within the individual limits of their permits to be part of
the environmental setting, or baseline, the District ensured that no emissions from
increased boiler operation would be considered an environmental impact so long
as no single boiler operated beyond its permitted capacity."
Id. at 322. See Neighbors for Smart Rail v. Exnosition Metro Line Construction Authority
(2012) 205 Cal. App, 4r' 552 petition for review ranted 2012 Cal. LEXIS 7556 (to the opposite
effect; opinion was depublished pending the Supreme Court review).
Hence, under South Coast AOMD, the FMND uses an improper baseline to assess
impacts including traffic impacts. The FMND states:
"When the City's General Plan Update was approved in 2006, the City had
commissioned a traffic study that assumed that the existing City Mall site would
be expanded to 75,000 square feet. Therefore, based on the General Plan 2006
Update traffic (land use) assumption used to analyze the traffic impacts associated
with the project site, the City determined that such future redevelopment/reuse of
the City Hall Complex property would not require voter approval for the purpose
of analyzing the Charter Section 423 thresholds."
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Keith Curry, Mayen
Memhere of die City Council - 7 - March 26, 2013
FMND, page 112. The FMND uses this "General Plan" analysis to determine the baseline for the
Project instead of the existing conditions on the ground today which is 54,000 square feet
including the Fire Station. See City Council Study Session presentation, page 2. This does not
comply with the requirements of CEQA and with the direction of the South Coast AOMD Court.
Indeed, it inflates the traffic generated under existing conditions and lessens the traffic impacts of
the project. The FMND must be revised to consider the Project's impacts on traffic and other
issues based upon a comparison with the existing conditions, Likely, the Project will generate
substantially more traffic than existing conditions,
Moreover, the FMND seems confused on this point. In Response to our December 26,
2013 Comment No. 34, the FMND states that:
"Fite Station No. 2 is an existing use that currently generates traffic to and from
the site as a result of home -to -work trips. Those trips currently exist and are
reflected in the baseline traffic for the Project."
FMND, Response to Comment No. 34, page 14. However, it is unclear under the General Plan
baseline whether or not the Fire Station traffic was not allocated to another site.
In conclusion, the FMND is totally inadequate. Good and sound policy reasons and good
planning require the preparation of an EIR. Such an Elk would analyze correctly the existing
environmental setting including the 54,000 square foot current City Hall structure, would clearly
state the Project objectives which include adequate open space for this public site, would analyze
all impacts including shade impacts, would include adequate mitigation, would include a
discussion of Project alternatives which is necessary for the Project to go forward, and would
allow the City to override any significant an unmitigated impacts.
Thank you, again, for the opportunity to comment on the FMND. As before and although
ignored for this hearing, PLEASE PROVIDE US WITH NOTICE OF ANY RESPONSES
TO THESE COMMENTS IN A NON-ITALICIZED FORMAT AND WITH NOTICES OF
ANY AND ALL BEARINGS ON THE CAPTIONED PROJECT AND FMND.
Of course, should you have any questions, please do not hesitate to contact me.
RCH/kw
Cc: Leilani Brown, City Clerk (Via Facsimile Only)
14 Corporate Plan, Suite 120
Newport Beach, California 92660
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Fax: (949) 650, 1181
Brown, Leilani
From:
Denys Oberman idho @obermanassociates.com)
Sent:
Tuesday, March 26, 2013 6:17 PM
To:
Curry, Keith; m hen n527 @hotmail.com; Gardner, Nancy; Daigle, Leslie;
edselich @adelphia.net; Hill, Rush; Petros, Tony; Kiff, Dave; Harp, Aaron; Brawn, Leilani
Subject:
City Hall Site Reuse - PLEASE ENTER INTO THE PUBLIC RECORD
Attachments:
City Hall Site Reuse - statement to City Council 3 -24 -13 for Public Record.docx
Importance:
High
Sensitivity:
Confidential
Please enter the attached document into the Public Record.
Testimony provided at City Council meeting this evening.
Thank you.
Regards,
Denys H. Oberman, CEO
EV ®BERMN
Stabgy a:d Ananclal Advison
OBERMAN Strategic Consulting & Transactions
2600 Michelson Drive, Suite 1700
Irvine, CA 92612
Tel (949) 476 -0790
Cell (949) 230 -5868
Fax (949) 752 -8935
Email: dho(cDobermanassociates.com
CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is
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March 24, 2013 Re. City Hall Site Reuse- PLEASE ENTER INTO THE PUBLIC RECORD
City of Newport Beach
Mayor and Council Members
Civic Center Drive
Newport Beach CA 92660
Mayor and Council Members:
We are pleased that the City is progressing the land use measures required to enable the
Redevelopment of the City Hall Site located at 3300 Newport Blvd. in Newport Beach.
We appreciate the City's desire to further a land use scheme that provides some flexibility concerning
the ultimate use which may be agreed upon. However, we are concerned and object to the following:
1. The City continues to reference Concept Plan 5B as a document ratifying both public opinion
and City policy. The Concept Plan should not be referenced or reliable upon for the following
reasons.
a) The referenced Public Process documentation does NOT accurately represent the broad
Public View, as was stated repeatedly by the public in testimony. The public universally
OBJECTED TO "Housing" as a use for the subject site. This testimony occurred in written
form, and in repeated testimony in City Council and other meetings. The public testified in
favor of an Upscale Boutique Hotel as the preferred use for this site, which could provide a
much - needed Anchor for retail, commercial and entertainment /recreational uses required
for Lido Village area revitalization. The Public at large DISAPPROVED OF THE USES as
proposed in the Staff Report's description of Concept Plan B.
b) The Concept Plan was not developed or vetted in accordance with CEQA or Brown Act
requirements. While this plan is not labeled as a Master Plan per se, it has been referred to
as such by Council members repeatedly. The stated 5B Concept Plan is NOT a legal
document - - -We request that the City discontinue use of this as any form of guidance or
influence on the community or prospective developers.
2. In response to significant public testimony, the City commissioned a recognized Hotel consultant
to conduct a study to assess the marketability and economic feasibility and attractiveness of a
Hotel use . The study results were compelling, reflecting economic benefit to the City, public
benefit, and marketability exponentially greater than that of the alternatives proposed by
Council members or another consultant previously commissed,Keyser Marston.
Yet the City continues to invest resources and funds in evaluation of other uses which
CONSTITUENTS DO NOT WANT, AND WHICH ARE NOT AS ECONOMICALLY BENEFITTO THE CITY.
There is already a prepondence of dense, residential uses of both single and multifamily nature in the
Lido /Balboa Penninsula area. The last thing that is needed is more residential uses. The area needs a
Destination Anchor to promote the require complementary mix of retail, restaurants, recreation and
entertainment which will make the area a destination with commercial viability and sustainability.
A hotel will create less impacts on the environment and surrounding infrastructure than a large
residential complex.
There are already plans for development of additional mix use and retail in the surrounding area -- -more
on this site is not appropriate.
3. Public Notice- The City continues to conduct what is characterizes as Public Hearings without
adequate,reasonable Notice to the public at large, or Interested Parties.The City serially alters
Agendae and dates with only last minute notice to the public
Given the significance of this project, we request that specific outreach be completed so that
Interested Parties can be kept current, and have adequate opportunity to comment and testify.
At minimum, all of the area Community and Homeowners Associations should be kept updated,
along with the press, concerning dates and Agendae of public hearinings, and staff reports.
4. Rate of Error in Consultants and Staff Reports- There is an exceptionally high rate of error in
both Consultant and Staff Reports. When errors have been pointed out, they have not been
cured, and there is Inaccurate Information in the record. For example, there were readily
apparent errors in the Keyser Marston report that were specifically identified, but no cure was
provided. We again request that population, demographic, and consumer — related information
be corrected so that the City Council, Planning Commission, the public, and prospective
development partners are not relying on Erroneous or Misleading Information to make
conclusions concerning policy and programs of material importance.
Thank you for your consideration.
Denys H. Oberman
Resident
Cc: Interested parties