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HomeMy WebLinkAbout19 & 22 - Lido House Hotel - CorrespondenceMemorandum L A `ah E "D g 4�a J 2 21__ E19. FIL-CO YJ17N Rk�,SZ CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 CIVIC CENTER DRIVE NEWPORT BEACH, CA 92660 (949)644-3210 To: Mayor and City Council Members / From: James Campbell, Principal Planner Date: August 20, 2014 �J Re: Lido House Hotel Final Environmental Impact Report (PA2012-031 & PA2013-217) The Final Environmental Impact Report (SCH#2013-111022) for the proposed Lido House Hotel and companion amendments to the General Plan, Coastal Land Use Plan and Zoning Code is attached for your review. The Draft EIR was transmitted to you back on July 10, 2014. The plans for the project are available on-line for viewing, but if you would like a paper copy, I can send a set to you. Please let me know as soon as possible. The plans, Draft EIR and Final EIR are available in digital form and can be downloaded at: http://www.newportbeachca.gov/eir in the folder named "Lido House Hotel." The project will appear on the September 9, 2014, City Council agenda for a public hearing. If you have any questions, please contact me at 949-644-3210. Enc. Final EIR for Lido House Hotel kms. McDonald, Cristal From: Denys Oberman [dho@obermanassociates.comj Sent: Monday, August 25, 2014 8:41 PM To: Brown, Leilani; City Clerk's Office Cc: dho@obermanassociates.com;'Kathryn Branman'; Linda Klein Subject: Comments regarding City Hall Site Reuse and Lido Hotel project Categories: Cristal PLEASE DISTRIBUTE TO THE CITY COUNCIL FOR SEPTEMBER 9, 2014 COUNCIL MEETING AND ENTER INTO THE PUBLIC RECORD. Mayor and Council Members, I will be on international assignment and unable to attend the September 9`" Council meeting, at which I understand that the Council will be asked to consider and approve various GP Plan and Zoning Amendments relative to reuse of the former City Hall site, along with Project EIR for the Lido House Hotel, and potentially a ground lease with the proposed developer, RDOlson. Previous more detailed testimony was already submitted to the Council and entered into the record. 1. Use Designation for the site- In accordance with the will of the people, and the Council's policy commitment to a Boutique Hotel as the preferred use of the site established in 2012, the GP and Zoning Designation should INCLUDE Hotel/visitor accommodation, and NOT include Residential or Residential/mixed use.(note that such amenities as a restaurant or retail as part of the Hotel do not require separate use classification). Public facilities may be included, if the Fire Station is included in the same parcel ---if not, it should be separated. 2. The public supported a team including Hotel Operator( Destination/Lowes), Developer/Builder RDOlson, and Designer WATG. We understand that the Developer is considering alternative Operating partner, and request that the Council require that the Developer disclose to the public the alternative Operator. We request that a ground lease not be approved, until such time as the Developer makes public the Hotel Operator team member. The Hotel Operator will drive the success of the initial rollout and life cycle(not the builder), and we believe that the public is entitled to vet and approve of the Operator(as was accomplished previously with Lowes Destination). There has been more than ample time for any diligence to have been completed, and an operator selected and negotiated. We respectfully request expert 3`d party review of the proposed Lease, to assure that its structure and terms are fair and reasonable, and do not undermine the proposed project. An expert such as PKF ,experienced in Hospitality, is requested. 4. The excessive delay of this project is costing the City and the community millions of dollars of revenue, AND puts the successful revitalization of Lido Village at risk. If the currently proposed developer/builder cannot demonstrate that the Operator and investment backing are in place, we expect that the City will seek proposals from other potential Hotel teams, and not other Residential or similar uses NOT approved by the public. 5. When the reuse was originally contemplated, it was thought that public space was an important ingredient for the use of the parcel. The proposed scheme leaves over 25% of the available site as open public area, outside the Hotel footprint. This space is vulnerable to ongoing nuisance and security problems. There is more than ample Park area in the vicinity—ocean and bay beaches, harbors, parks and community recreation facilities. This area can be more effectively deployed to support greater project ROI if included in the interior of the building footprint, and/or used to accommodate access with adjacent property owner. 6. We ask that the Council include a first right of refusal in the lease to acquire the Land. This will promote the economic ROI of the project, and provide cash that the City can deploy to reduce other debt, enhance infrastructure and service improvements. Thank you for your consideration. Denys Oberman, Kathryn Branman, Linda Klein Residents for Lido Village Revitalization ............................................................................... Regards, Denys H. Oberman, CEO OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: dho(a)obermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 949/476.0790 or the electronic address above, to arrange for the return of the document(s) to us. RECEIVED AFTER AGENDA PRINTED ITEM NO. 19 LAW OFFICES OF SEPTEMBER 9, 2014 GARY S. MOBLEY GARY S. MOBLEY n�sai�cbRPar+. M TELEPHONE (714) 96MI81 ERICA L. MOBLEY 17011 BEACH. BLVD., SUITE 900 - TELECOPIER (714) 3758672 - - HUNTINGTON BEACH,: CALIFORNIA 82847 - - September 5, 2014 VIA EMAIL/PERSONAL DELIVERY Mr. James Campbell, Principal Planner Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, CA 92660 Jeampbe� Tneewportbeachca.gov Re: LIDO HOUSE HOTEL AND PROPOSED EIR Pmject Nos. PA2013-217 and PA2012-031 Dear Mr. Campbell: This firm represents PORT PROPERTIES, INC., which - is the owner of: commercial property located at 3315-45 Newport Blvd., Newport Beach, located at the southwest corner of Newport Blvd. and Finley, directly across from the proposed Lido Hotel project. On behalf of my client, I am writing to formally oppose the proposed Lido Hotel development project, including the general plan amendment, coastal Iand use plan amendment, zoning code amendment, site development review, conditional use permit and traffic study, Project No. PA 2013-217 ("Development Project"), and the related Environmental Impact Report for this project, Project No. PA 2012-031 ("EIR"), both of which are currently on the agenda for the September 4, 2014, city council hearing. I request that this a copy of this letter be provided to the city council members in advance of the hearing and made part of the administrative record. Objections to Development Project. My client's primary concern is that the Development Project does not provide adequate parking for the proposed development, which will exacerbate an existing parking shortage in the area and thereby impact neighboring businesses, including my client's. The proposed project contemplates the acquisition of the old City Hall site commonly known as 3300 Newport Blvd. and construction of a 130 -room hotel on that site, which will include two restaurants and a spa. However, the project provides only 148 on-site parking spaces for this project. 148 parking spaces is barely sufficient to LAW OFFICES GARY S. MOBLEY Mr. James Campbell, Principal Planner Community Development Department CITY OF NEWPORT BEACH September 5, 2014 Page 2 meet the needs of the hotel guests alone. No provision is made for the hotel, restaurant and spa employees and staff, as well as visitors of the hotel, restaurants and spa, which will add an additional 60 vehicles. It is common knowledge that hotels, restaurants and spas are labor-intensive businesses that require substantial employees and support staff. It is not unreasonable to assume that, at any given time during normal business hours, there will be over 100 hotel, restaurant and spa and over 60 visitors and guests, most of whom will be driving separate vehicles. 148 parking spaces is simply insufficient to meet the needs of this project. My client intends to hire his own parking consultant to review the City's position on findings. Further, the project will include closing of the parking lot at the old City Hall, which is currently available and used for parking by local residents and employees of the local businesses. My client has conducted an informal survey, which indicates that there are between 25 to 35 vehicles currently parking in the old City Hall lot at any given time. It appears that several of these vehicles are patrons or employees of the West Marine Shopping Center. This parking will be .eliminated as part of the Development Project. Yet, again, the proposed development does not include any provision to replace any of these parking spaces that will be lost as a result of this development. The shortage of available parking caused by this development will severely impact neighboring businesses and residents in the vicinity, including my client's property, which is directly across the street. This impact will be exacerbated given the city's proposed street -widening project on Newport Boulevard, which will eliminate approximately 26 metered parking spaces in front of my client's property and the adjacent block. The loss of these 26 metered parking spaces together with the increased demand caused by insufficient parking spaces for the Lido House Hotel project can be expected to depress the local commercial businesses, including my client's tenants, and thereby substantially impair the value of my client's property to such an extent that it may rise to the level of a governmental taking. We understand that, as part of the proposed street -widening project, the city of Newport Beach is contemplating purchasing an adjacent building at 3201 Newport Blvd., which will be razed and used for parking to replace the loss of the 26 metered parking spaces in front of my client's property and the adjacent block. However, the acquisition of this property does not address the additional parking concerns that will be caused by LAW OFFICES GARY S.-MOBLEY APROFEB&ONAICORPdtnFION.., Mr. James Campbell, Principal Planner Community Development Department CITY OF NEWPORT BEACH September 5, 2014 Page 3 the Lido House Hotel project. My client is willing to enter into negotiations with the city or the developer to potentially sell its property to provide for parking spaces to mitigate . the impact of the development project. However, unless additional parking spaces are obtained, my client vigorously objects to this proposed project. Objection to Proposed EIR. My client also objects to the proposed the EIR on the grounds that it does not appear to adequately consider or mitigate the strain on traffic in circulation that will be caused by ibis new development project. In fact, my client believes that the traffic study, ; which forms the basis of thetraffic/circulation element of the proposed EIR, is seriously flawed and substantially understates the impact that the project will have on daily traffic and circulation in the area. As a consequence, contrary to the EIR, my client believes that this project will have a significant impact on the environment. Further, the proposed EIR does not provide sufficient mitigation of the impact that this project will have on the traffic and circulation in the area and other environmental impacts ofthe project. Conclusion. In summary, my client requests that the EIR be denied or returned for further consideration and that the Development Project be denied or conditioned on adding, additional parking to mitigate the additional parking needs caused by this project. Very 'truly V�hl yours, G cc: Aaron Harp, Esq., City Attorney (via email) Kimberly Brandt, Director (via email) Cristal McDonald, City Clerk, City of Newport Beach September 9, 2014 Agenda Item No. 19 CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 CIVIC CENTER DRIVE NEWPORT BEACH, CA 92660 (949) 644- 3210 Memorandum To: Mayor Hill and Members of the City Council From: James Campbell, Principal Planner (fWL Date: September 9, 2014 Re: Agenda Item #19, September 9, 2014, Lido House Hotel (PA2013-217) and Former City Hall Complex Amendments (PA2012-031) The City received the attached comment letter from attorneys representing Lido Partners, the owner of Via Lido Plaza'. The letter expresses Lido Partner's support for the proposed hotel use. The letter also expresses the belief held by Lido Partners that the closure of driveway access from Via Lido Plaza to 32nd Street across the project site and the resulting change in emergency and delivery vehicle circulation would create a public safety hazard and that the EIR fails to properly evaluate the alleged significant adverse impact. Additionally, the letter indicates that the EIR fails to address the consequences of approving the project prior to resolution of the pending quite title action and fails to mitigate cumulative impacts that could arise from the simultaneous construction of the project and the Newport Boulevard widening project. Staff believes that the information provided in the letter does not constitute significant new information to determine the EIR inadequate based upon the following: Public Safety Closing the 32nd Street access will require all vehicles accessing Via Lido Plaza to use the two other existing driveways (one from Finley Avenue and one from Via Lido). As part of the consideration of this comment, the City's Fire Department reviewed the project. According to Assistant Chief Kitch, the closure of the access point would not degrade emergency access to Via Lido Plaza (memorandum to J. Campbell dated July 30, 2014). Adequate emergency access to Via Lido Plaza is currently provided and will continue to be provided during operation and construction of the Project from Newport Boulevard, Via Lido, and from onsite parking areas that are and will continue to be accessed 1 The attached comment letter was transmitted with two letters previously received by the City that provide comments on the DEIR and FEIR dated June 13, 2014, and July 16, 2014, respectively. The two previous comment letters, and written staff responses, are included in the FEIR (comment letters #8 and #12). Lido House Hotel (PA2013-217) and Former City Hall Complex Amendments (PA2012-031) Page 2 by the two existing vehicular driveways from Finley Avenue and Via Lido. Emergency response times will remain within established standards and emergency vehicles can presently access both Via Lido Plaza parking areas through existing driveways Finley Avenue and Via Lido. Please refer to Final EIR, responses to comment letter 8 and comment letter 12. All delivery vehicles to Via Lido Plaza, including trucks, would need to access the shopping center by one of the other two existing driveways. Large tractor trailers cannot currently access the Finley Avenue driveway due to the design of the existing driveway improvements on the Via Lido Plaza property. Therefore, these vehicles would need to use the Via Lido entrance. Lido Partners provided truck turning templates indicating that the largest truck allowable on California roads cannot enter the site from the #2 lane while only using the right side of the Via Lido Plaza entry driveway. It is important to note that Lido Partners did not indicate that 65 -foot trucks currently deliver goods to Via Lido Plaza, but that the shopping center might require such deliveries if a grocery store were to re -occupy the site in the future. Despite the lack of a current need to accommodate 65 -foot tractor trailer trucks, Fusco Engineering provided truck turning templates for a 65 -foot tractor trailer truck that show that a truck can make the turn by swinging wide using all lanes within Via Lido and using the full width of the Via Lido Plaza entry driveway (letter dated July 28, 2014). If a vehicle or pedestrian is blocking the driveway, a truck making the necessary turning movement will simply wait for the driveway to clear and then access the driveway safely. This legal turning movementz was not considered to generate a significant traffic safety hazard, in the opinion of the City Traffic Engineer, due to the limited number and size of existing delivery vehicles compared to the traffic volume on Via Lido and the 25 mph speed limit on Via Lido which gives both the delivery truck drivers, pedestrians, and drivers of passenger cars time to respond and react safely. The ability for 65 -foot tractor trailer trucks to access Via Lido Plaza through the driveway on Via Lido was considered as a worst case scenario, but it is not considered reasonably foreseeable at this time. Lido Partners indicates that parking control gates for Via Lido Plaza are necessary when the former City Hall site is closed for construction. Lido Partners submitted plans several months ago for parking control gates to be installed at the Finley Avenue and the Via Lido driveway. Staff provided comments during the review requiring that the control devices would need to be redesigned as they could not operate without creating vehicle conflicts and hazards. Staff has consistently indicated to representatives of Lido Partners that the design of parking control gates at Via Lido Plaza must accommodate their needs without reliance on the 32"d Street access. To date, no response to staff's comments or modified design for the proposed gates has been submitted. Staff disagrees that Via Lido Plaza will be the default overflow parking lot for visitors to the area and hotel construction workers. The Plaza could, for example, provide parking time limits and signs to ensure parking is used for customers only and/or does not interfere with parking for customers. Towing is also an option as it is elsewhere within the City. Moreover, as part of the hotel's required construction management 2 The September 3, 2014, comment letter opines that a truck turning in from Via Lido using all lanes (on the same side of Via Lido) and the full width of the driveway is illegal. In fact, this circumstance occurs often in urban areas for delivery trucks. The California Vehicle Code, Section 22100 (a), recognized this reality by providing that: "Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway." Therefore, the City Traffic Engineer concludes that it is not illegal to make the right turn into Via Lido Plaza from lanes other than the lane closest to the curb. Lido House Hotel (PA2013-217) and Former City Hall Complex Amendments (PA2012-031) Page 3 plan, construction workers will be required to park on-site and avoid parking at Via Lido Plaza, unless they are patronizing the shopping center. Lido Partners believes that large trucks using the Via Lido driveway pose a risk to pedestrians within Via Lido Plaza as a truck would need to "thread" through pedestrian traffic in the parking lot and pass Via Lido Plaza storefronts. Existing conditions require that delivery trucks accessing the site from any access point must share existing vehicular drive aisles with pedestrians. Delivery vehicles traveling through shopping center parking areas are not uncommon and the public can generally expect to experience this circumstance especially since this shopping center cannot separate delivery vehicles from the parking lot due to its existing design. According to the West Marine manager, two 40 -foot trucks presently service West Marine during the 6:00 a.m. hour a week; one on Tuesday morning and one on Thursday morning. Given the number of trucks and the time of day, trucks won't likely be weaving through pedestrians or creating an inordinate risk to pedestrians. Deliveries to other businesses within Via Lido Plaza do not generally involve large trucks as the only loading area at Via Lido Plaza is solely devoted to West Marine and large delivery trucks to other tenants have not been observed and appear unneeded given the nature of the businesses run by the other tenants. Lido Partners has not provided any information as to the number, type or schedule of deliveries to any tenants. For these reasons, staff does not agree that closing the vehicular access point to 32nd Street and any resulting change to delivery routes will generate a significant increased risk to pedestrian safety in the parking lot at Via Lido Plaza. The comment indicates that the EIR is somehow flawed based upon the California District Court's ruling in City of Maywood v. LAUSD. That case involved a school district's proposal to construct a new high school at a site encompassing two city blocks and bisected by a busy street. The court held that under CECA the district had a duty to consider the project's potential impact on pedestrian safety from students who may jaywalk across the street rather than use a proposed pedestrian safety bridge. Nothing in the record indicated the district had considered the issue nor did the record support the district's contention that the project's design features would force students and staff to use the pedestrian bridge. The facts of that case and its outcome are inapplicable to the claims raised by Lido Partners and the City analysis of those claims. The City, as part of the Final EIR and responses to comments, these responses to comments, and the corresponding staff reports prepared for the Planning Commission and City Council, has conducted additional analysis of the alleged safety hazard and substantial evidence in the record supports the City's conclusion that there would be no new significant adverse safety impacts to pedestrians or other drivers while trucks access the existing Plaza. Lido Partners simply disagree with the City's conclusions. Access to Via Lido Plaza, Quiet Title Action In response to the Notice of Preparation for the Lido House Hotel EIR, Lido Partners threatened legal action to preserve what they think of as a right to continue using the City's property for access. In the 1930's and 1940's, the prior owner of Via Lido Plaza transferred to the City the property that is now the former City Hall site. No access easement was reserved or recorded for Via Lido Plaza and none presently exists. In 1964, the City approved and recorded a "Notice of Consent" for use of the area pursuant to Civil Code Section 813 allowing the public to use the driveway. The purpose of the Notice Lido House Hotel (PA2013-217) and Former City Hall Complex Amendments (PA2012-031) Page 4 of Consent was (and is) to advise users of these access roads that their use is consensual and revocable at the will of the owner of the City Property. Under Civil Code Section 813, the City may revoke the Notice of Consent at any time by recording a notice of revocation. The City does not believe Lido Partners has any legal right to the City's property other than its existing permissive use pursuant to the Notice of Consent. In response to Lido Partners claim, the City initiated legal proceedings to quiet the title and determine what, if any rights Lido Partners has to the City's property. As indicated in the Final EIR, the City does not intend to revoke its consent or close the driveway until the City receives a judicial determination that Lido Partners has no right of access from the City's property, other than its existing permissive use. If the City is unsuccessful in the quiet title action, the project would need to be modified to provide vehicular access to Via Lido Plaza and that modified project would require some form of review and additional CEQA analysis by the City and consistent with the Zoning Code. The comment letter suggests that it is premature for the City to make findings related to the proposed applications in the light of the possibility that the project may be altered should the City be unsuccessful with the quiet title action. The city need not delay action on the project until a court rules on the merits of the quiet title action. The recommended application and CEQA findings are for the proposed project and not for a potentially modified project. Again, if the project must be modified in the future, staff will review those changes and process the potential request consistent with the Zoning Code and CEQA to ensure that all findings can be satisfied. Cumulative Impacts with Newport Boulevard widening project The traffic analysis within the EIR did consider the traffic impacts of the proposed project with and without the Newport Boulevard widening project (See Section S.5 of the DEIR). This analysis was included in the Draft EIR, including the technical appendices, as it is a planned improvement to the circulation system consistent with the Circulation Element of the General Plan. The analysis of potential construction -related congestion impacts to traffic circulation identified Mitigation Measure TRA -1 that requires the preparation and implementation of a detailed construction management plan to avoid significant traffic disruptions. Impacts were determined to be less than significant as a result. Construction -related traffic disruption was also examined cumulatively with other projects, and it was determined that Mitigation Measure TRA -1 would mitigate cumulative impacts even if there were overlaps in construction between the hotel project. The Newport Boulevard widening project was not included in the construction -related analysis as the timing of that project, at the time Notice of Preparation and when the Draft EIR was published, was unknown due to the need for additional financing for the improvement, the need to acquire private property for the implementation of the improvement etc. The timing of the widening project was therefore speculative and not a reasonably foreseeable future project which the City was required to consider as part of the near term cumulative construction related impacts analysis. Subsequent to the completion of the DER, and before the completion of the FOR, the City completed a Mitigated Negative Declaration for the Newport Boulevard widening project. The anticipated timing of construction was identified as potentially beginning in September of 2015 and ending in March of 2016. Hotel construction is anticipated to begin early 2016 after all other required Lido House Hotel (PA2013-217) and Former City Hall Complex Amendments (PA2012-031) Page 5 responsible and trustee agency approvals are obtained. The City anticipates that the Newport Boulevard widening project could be completed before commencement of construction of the hotel; however, if the final construction phase of the Newport Boulevard widening project (landscape installation) were to overlap with the initial construction phase of the Lido House Hotel project (demolition) in early 2016, project -related construction trips would not result in cumulatively considerable significant adverse impacts, including to traffic, noise or air quality when considered in conjunction with the widening project. This is because the number of trucks associated with demolition activities, approximately 13 per day during the first month of construction, and trucks hauling away demolition debris would access Newport Boulevard from 32"d Street or Finley Avenue thereby providing additional options to avoid traffic disruptions. Mitigation Measure TRA -1 requires the preparation of a construction management plan for the Lido House Hotel project prior to the issuance of building permits. The Lido House Hotel construction management plan includes, but is not limited to, measures for the maintenance of appropriate traffic control for safe and efficient vehicular traffic through the area, identification of approved construction vehicle routes, and specific hours of operation, and prohibition of use of local streets. The Newport Boulevard widening project will also include the preparation of a traffic control plan as a matter of routine that must appropriately schedule minimal lane closures for safe and efficient vehicular access to and through the area by the public and emergency vehicles. Both projects will have to submit their plans to the City for review prior to implementation, and will need to demonstrate that they can successfully operate at the same time, if necessary, while allowing access to properties in the affected area, minimizing disruption in peak hour traffic, and maintaining emergency access at all times based on anticipated conditions. Implementation of these measures would minimize or avoid any potential concurrent construction conflicts from occurring in the event that construction of both projects overlapped. It should be further noted that all impacts associated with the proposed Lido House Hotel project were determined to be less than significant, and should the construction schedule of the Lido House Hotel and the Newport Boulevard widening project temporarily overlap, the proposed mitigation measures (TRA -1 [Construction Management Plan], N-1 [Noise], and AQ -1 [Construction Related Emissions Control Measures]) would ensure that a significant impact would not occur. Attachment: Comment letter from Lido Partners dated September 3, 2014. September 3, 2014 VIA USPS OVERNIGHT AND VIA EMAIL RI-1111RNewportBeachCa.gov Rush N. Hill, II City Council Member, District 3 Mayor Office of the City Clerk P.O. Box 1768 Newport Beach, CA 92658 Re: Certification of the Final EIR for the Lido House Hotel Project Dear Council Member Hill: 0-OESVED & , COMMUNITY SEP 0 3 21314 O DEVELOPMENT vs Op NEWPOO 77670.00004 We represent Lido Partners, the owner of the Via Lido Plaza property situated immediately north of the proposed Lido House Hotel Development ("Project"). While we have provided the City of Newport Beach's ("City") staff with several rounds of comments on the Project's Draft and Final Environmental Impact Reports ("EIR"), we wanted to take this opportunity prior to the City Council meeting to provide you with a summary of our major concerns over the Project's significant environmental impacts arising from the closure of an accessway that runs north/south and connects Via Lido Plaza with 32nd Street (the "32nd Street Access").' As explained in our prior comments, the 32nd Street Access is very important to Lido Partners, as it provides the only safe and efficient access for large delivery and emergency vehicles to Via Lido Plaza. To be clear, Lido Partners supports a hotel use for the former City Hall property, and applauds RD Olson for proposing a beautiful development to help revitalize the Lido Village area. But there is no reason why the hotel development cannot also preserve safe, efficient access to Via Lido Plaza, and avoid the significant impacts that would arise should the 32nd Street Access be closed without suitable access elsewhere. Contrary to the belief of the City staff, large vehicle access to Via Lido Plaza through Via Lido would pose serious public safety issues, and the Final EIR fails to address the consequences of approving the Project prior to resolution of the lawsuit brought by the City against Lido Partners, and fails to mitigate for the cumulative impacts arising from the simultaneous construction and operation of the Project and the Newport Boulevard Road Widening Project. TRUCK ACCESS THROUGH THE VIA LIDO ENTRANCE PRESENTS A PUBLIC SAFETY ISSUE Closing the 32nd Street Access would require large delivery and emergency vehicle traffic to be routed to Via Lido, which is a much busier street, with far more vehicle and pedestrian traffic, than 32nd Street. These large trucks would have to use the Via Lido entrance into Via Lido Plaza. This will require large trucks to execute a difficult and illegal turning maneuver into Via Lido Plaza before traveling through the shopping center's primary parking area to the loading dock. Similarly, trucks exiting the Via Lido driveway ' We have attached our prior correspondence for your convenience. We reaffirm all the objections set forth in this prior correspondence, notwithstanding City staffs unsuccessful attempts to respond to these objections in the Final EIR and the staff reports for the Planning Commission meetings. Paul Hastings LLP 1 55 Second Street I Twenty -Fourth Floor I San Francisco, CA 94105 t: +1.415.856.7000 1 w .paulhastings.com Rush N. Hill, Il, City Council Member September 3, 2014 Page 2 would need to use both the incoming and outgoing lanes, thus blocking cars trying to enter Via Lido Plaza. Both of these movements could potentially cause unsafe backups on Via Lido with restrictive visibility. While the City characterizes the volume of truck traffic as "insignificant," and has downplayed the traffic impacts, the City overlooks the critical public safety impacts that such a re-route would have. Moreover, the issue is not how many trucks access Via Lido Plaza today. The hotel will be there for 55 years or more, and it is impossible to say how many trucks will be accessing Via Lido Plaza in the future. There is no disputing that Via Lido is a much more traveled road that 32nd Street, and that entering Via Lido Plaza from Via Lido is trickier and more time consuming than entering 32nd Street. A large truck must execute a wide turn that would potentially impact three lanes of Via Lido, and could complicate traffic entering Lido Marina Village, to the north. Moreover, several months ago Lido Partners submitted plans to the City to erect parking control gates at the Via Lido and Finley Avenue entrances to Via Lido Plaza. Parking gates will be needed once the City Hall site is closed for construction of the Project, as the public traditionally has used the City Hall site for overflow and beach parking, and the Via Lido Plaza parking lot will become the default overflow lot for visitors to the area (and undoubtedly hotel construction workers as well). Once parking gates are installed at the Via Lido entrance to the plaza, however, large truck access at that entrance will virtually be impossible. That will only heighten the importance to Lido Partners of its continued ability to use the 32nd Street Access. Large trucks traveling through the Via Lido entrance also poses a greater risk to shoppers at Via Lido Plaza. To avoid blocking Via Lido, a large truck entering Via Lido Plaza must proceed quickly through the driveway entrance. But that is an extremely difficult turn for large trucks to make. Once that turn is made, trucks must thread through pedestrian traffic traveling between the parking lot and the Via Lido Plaza storefronts. Simply, routing large trucks through the Via Lido entrance greatly increases the possibility of accidents to vehicles, pedestrians, and shoppers compared to the access provided by the 32nd Street Access. Even the risk of one serious pedestrian accident creates a significant impact that the Final EIR fails to adequately consider. See City of Maywood v. Los Angeles Unified Sch. Dist., 208 Cal. App. 362, 394-95 (2012) (faulting an EIR for failing to consider the potentially significant impacts to pedestrian safety caused by the construction of a road that ran through the middle of a school project). It. LIDO PARTNERS WILL LIKELY PREVAIL IN THE CITY'S EASEMENTLITIGATION, WHICH At the Planning Commission hearing, representatives of the City said that the City had not sued Lido Partners in the lawsuit that is now pending between the City and Lido Partners. We think it makes sense to set the record straight on that point, and provide the Council with some background about the lawsuit. . The City unilaterally filed the lawsuit. The City sued Lido Partners in April 2014 for declaratory relief and to quiet title for the area generally comprising the 32nd Street Access, Lido Partners filed a cross- complaint seeking to have the court declare that it has an implied license or equitable easement that gives Lido Partners the right to continue using the 32nd Street Access. Lido Partners' claim is credible and likely to succeed, based on the fact that the Via Lido Plaza property has used the 32nd Street Access for at least the last 75 years. PAUL Rush N. Hill, II, City Council Member September 3, 2014 Page 3 The Via Lido Plaza property was initially developed in the 1930's as an office -retail mixed use center. The owner of the Via Lido Plaza property transferred to the City much of the property that became the City Hall in 1939, and then transferred the 32nd Street Access to the City in 1946. Continuously since even before 1939, however, the 32nd Street Access has been used as a major access way for the Via Lido Property. As the Via Lido Plaza property and the adjacent City property developed over the years, the 32nd Street Access became the only suitable access point to the Via Lido Plaza property for large fire and safety trucks and large delivery trucks. Since the 1940's, the City has repeatedly approved site plans, building permits, and entitlement applications relating to the use of the Via Lido Plaza property, the plans for which showed and contemplated access to the property through the 32nd Street Access. The City's acquiescence in Via Lido Plaza's use of the 32nd Street Access over the course of at least 75 years has created an implied license and/or an equitable easement for Via Lido Plaza to continue using the 32nd Street Access. Lido Partners and its predecessors have spent millions of dollars in reasonable reliance on the use of the 32nd Street Access in developing, redeveloping, and operating Via Lido Plaza. Finding an implied license or equitable easement for large truck access over the 32nd Street Access would have little to no harmful effect on the City, as the City has allowed the use of the 32nd Street Access for that purpose for at least 75 years. Nor would it have any harmful effect on the hotel developer, as early plans for the Lido House Hotel preserved the 32nd Street Access to Via Lido Plaza. On the other hand, the hardship to Lido Partners from closing the 32nd Street Access would be great, as it provides the only safe access for such large trucks to access Via Lido Plaza. The City relies on the fact that it recorded a notice of consent to use land pertaining to the 32nd Street Access in 1964. But by that time, the accessway had already been used by Lido Partners and its predecessors for over 25 years. Lido Partners' rights to use the accessway were long established by 1964. Those same rights serve to prohibit the City from terminating Lido Partners' use of the 32nd Street Access, simply to facilitate its preferred Project layout. As the City staff has already recognized, the Project cannot go forward as designed if Lido Partners prevails in the City's lawsuit against it. See City Response to Draft EIR Comments 8-2 ("The City does not intend to revoke its consent or close the driveway until the City receives a judicial determination that Lido Partners has no right of access to the City's property ...."). Accordingly, at this time the City cannot credibly make the required findings to issue the Project's land use permits, specifically the Site Development Review's requirement that the Project will "ensure safe and convenient access and circulation for pedestrians and vehicles," and does "[n]ot ... endanger[], jeopardize[], or otherwise constitute[] a hazard to the public convenience.... interest, ... or general welfare of persons residing or working in the neighborhood of the [Project]." Making such findings now ignores the City staffs admission that its right to close the 32nd Street Access to provide the Project with its preferred service vehicle access will only be made clear after resolution of its lawsuit against Lido Partners; crucially, if Lido Partners succeeds in the lawsuit, the City's finding of "no jeopardy to an interest of a person" would be inaccurate as a matter of law. Nor does the EIR explain how 32nd Street Access will be continued during construction of the hotel if Lido Partners prevails in the lawsuit. That too is a significant failing in the EIR. PAUL Rush N. Hill, II, City Council Member September 3, 2014 Page 4 While Lido Partners has met several times with RD Olson to find a compromise that could accommodate all stakeholders and possibly end the litigation, we are disappointed that the City staff has failed to fully grasp the consequences of approving the Project prior to resolution of its lawsuit against Lido Partners, and has not explored any Project alternatives that would preserve safe access to Via Lido Plaza, either by preserving the 32nd Street Access or (for example) creating a new entrance to Via Lido Plaza from Via Oporto. Lido Partners is left with the impression that it is the only stakeholder seeking a compromise resolution. At the September 9, 2014 City Council meeting, we understand that the City Council will also vote on the Newport Boulevard and 32nd Street Modification Project ("Newport Boulevard Project"), which will make substantial road widening improvements in the area of the proposed hotel Project. The Project's Final EIR, however, fails to analyze or provide appropriate mitigation for the cumulative environmental impacts arising from simultaneous construction and operation of the Newport Boulevard Project alongside the hotel Project. The Final EIR's cumulative impact analysis fails to account for the Newport Boulevard Project. While the Final EIR's traffic analysis compares the level of service effects of the completed Newport Boulevard Project on area traffic, there is no comprehensive analysis on cumulative impacts arising from the construction of the Newport Boulevard Project, or any analysis of the cumulative impacts on any other CEQA element besides traffic (e.g., noise, air quality, greenhouse gasses) for the Newport Boulevard Project. For instance, the Newport Boulevard Project is expected to be constructed over a six-month period, beginning September 2015 and ending March 2016, which overlaps with the hotel Project's construction starting early 2016 through summer 2017. While the Mitigated Negative Declaration ("MND") for the Newport Boulevard Project states that "[c]onstruction of the Lido House Hotel project is not anticipated to begin until construction of the tProject] is complete," there is no assurance the this will be the case, and neither the MND nor the Final EIR contain any mitigation measure staggering the construction of both projects. Concurrent construction could be devastating for area traffic and emergency access, considering that "[Newport Boulevard Project] construction would require temporary lane closures on both Newport Boulevard and 32nd Street," while the hotel Project would bring into the area "922 total haul truck trips for soil import over a 21 day period (44 trips per day)." See MND at 49; Draft EIR at 5.5-20. Binding mitigation is required to ensure that area traffic does not grind to a halt during the construction of both projects. IV. CONCLUSION We appreciate your consideration of these important issues, and urge you to delay your vote on the Project until the City has an opportunity to correct the most glaring errors and oversights in the EIR. AUL Rush N. Hill, II, City Council Member September 3, 2014 Page 5 Delaying your vote would also give the City, RD Olson, and Lido Partners more time to consider creative solutions that would eliminate the Project's significant impacts on Via Lido Plaza and avoid further litigation over the 32nd Street Access. Sincerely, Gordon E. Hart of PAUL HASTINGS LLP GEH:BBE cc: Jim Campbell, Principal Planner, City of Newport Beach Don Howard, Fritz Duda Company LEGAL US W # 79664734.8 Buck B. Endemann of PAUL HASTINGS LLP RECEIVED AFTER AGENDA PRINTED ITEM NO. 19 + 2 2- FREVISEDI Condition No. 32 DATE: —9 S To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Lido House Hotel project (PA2013-217) and Former City Hall Reuse Amendments (PA2012-031) including, but not limited to, the General Plan Amendment No. GP2012-002, Coastal Land Use Plan Amendment No. LC2012-001, Zoning Code Amendment No. CA2012-003, Site Development Review No. SD2014-001, Conditional Use Permit No. UP2014-004, Traffic Study No. TS2014-005; and/or the City's related California Environmental Quality Act determinations and the certification of the Final Environmental Impact Report No. ER2014-003 (SCH#2013111022). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Applicant shall not be required to indemnify the City from any lawsuit, or damages, costs, attorneys' fees, or other expenses related thereto, that is brought by any person or entity that is currently a party to litigation initiated by the City related to the Former City Hall site.