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HomeMy WebLinkAbout2013-22 - Overriding Considerations with the CEQA and State and Local Guidelines for Approval of Uptown Newport 4311-4321 Jamboree Rd. PA2011-134RESOLUTION NO. 2013 -22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADOPTING A STATEMENT OF OVERRIDING CONSIDERATIONS IN ACCORDANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND STATE AND LOCAL GUIDELINES FOR THE APPROVAL OF 25.05 ACRE PLANNED COMMUNITY KNOWN AS UPTOWN NEWPORT LOCATED AT 4311 -4321 JAMBOREE ROAD (PA2011 -134) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: STATEMENT OF FACTS. An application was filed by Uptown Newport LP ( "Uptown Newport" or "Applicant ") with respect to a 25.05 -acre property generally located on the north side of Jamboree Road between Birch Street and the intersection of Von Karman Avenue and MacArthur Boulevard, legally described as Lots 1 and 2 of Tract No. 7953 and incorporated herein by reference, (the "Property ") requesting approval for the development of up to 1,244 residential dwelling units, 11,500 square feet of retail commercial uses and 2.05 acres of parklands (the "Project "). The following approvals are requested or required in order to implement the project as proposed: a. Planned Community Development Plan Amendment No. PD2011 -003: An amendment to Planned Community Development Plan #15 (Koll Center Planned Community) to remove the subject property from the Koll Center Planned Community, pursuant to Chapter 20.66 (Amendments) of the Municipal Code. b. Planned Community Development Plan Adoption No. PC2012 -001: A Planned Community Development Plan (PCDP) adoption to establish the allowable land uses, general development regulations, and implementation and administrative procedures, which would serve as the zoning document for the construction of up to 1,244 residential units, 11,500 square feet of retail commercial, and 2.05 acres of park space to be built in two separate phases on a 25.05 -acre site, pursuant to Chapter 20.56 of the Municipal Code. The PCDP has three (3) components: 1) Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3) Design Guidelines. c. Tentative Tract Map No. NT2012 -002: A tentative tract map to establish lots for residential development purposes pursuant to Title 19 of the Municipal Code. d. Traffic Study No. TS2012 -005: A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the Municipal Code. e. Affordable Housing Implementation Plan No. AH2012 -001: A program specifying how the proposed project would meet the City's affordable housing requirements, pursuant to Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density Bonus) of the Municipal Code. City Council Resolution No. 2013 -22 Page 2 of 8 f. Development Agreement No. DA2012 -003: A Development Agreement between the applicant and the City of Newport Beach describing development rights and public benefits, pursuant to Section 15.45.020.A.2.a of the Municipal Code and General Plan Land Use Policy LU6.15.12. 2. The Property has a General Plan designation of Mixed -Use District Horizontal -2 (MU- 1­12), and the Property is located within the Airport Business Area, for which the Airport Business Area Integrated Conceptual Development Plan ( "ICDP ") has been adopted. The ICDP allocates a maximum of 1,244 residential units and up to 11,500 square feet of retail to be developed on the Property. 3. The Property is currently located within the City of Newport Beach ( "City ") Koll Center Newport Planned Community and is designated as Industrial Site 1. 4. On February 7, 2013, the Planning Commission adopted Resolution No. 1908, recommending to the City Council of the City of Newport Beach certification of the Final Environmental Impact Report No. ER2012 -001 (FEIR) and approval of the Project to the City Council. 5. The City Council held a public hearing on February 26, 2013, in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of the time, place and purpose of the aforesaid meeting was provided in accordance with the California Environmental Quality Act ( "CEQA ") and the Newport Beach Municipal Code ( "NBMC "). The FEIR which consists of the Draft Environmental Impact Report (DEIR), Comments, Responses to Comments, Revisions to DEIR, and Mitigation Monitoring and Reporting Program, staff report, and evidence, both written and oral, were presented to and considered by the City Council at the scheduled public hearing. 6. The FEIR for the Project was presented to the City Council, as the decision - making body of the Lead Agency, for certification as having been completed in compliance with the provisions of CEQA and State and local guidelines implementing CEQA. 7. The City Council has reviewed and considered the FEIR and has found that FEIR considers all potentially significant environmental effects of the Project and is complete and adequate, and fully complies with all requirements of CEQA and of the State and local CEQA Guidelines. 8. On February 26, 2013, the City Council considered and certified FEIR, by adopting certain CEQA Findings of Facts contained in Resolution No. 2013 -21, which is hereby incorporated by reference. 9. On the basis of the entire environmental review record, the proposed Project will have a less than significant impact upon the environment with the incorporation of mitigation measures, with the exception of the following significant and unavoidable impacts: A. Air Quality — Short term construction - related emission for Phases 1 and 2 of the project City Council Resolution No. 2013 -22 Page 3 of 8 B. Land Use - A determination of inconsistency with the John Wayne Airport Environs Land Use Plan (AELUP) by the Airport Land Use Commission (ALUC) C. Noise - Construction- related noise impacts for Phase 1 and Phase 2 of the project 9. On January 8, 2013, the City Council adopted Resolution No. 2013 -03 to provide notice to the Airport Land Use Commission and California Department of Transportation, Division of Aeronautics of the City of Newport Beach's intent to the find the Project consistent with the purposes of Public Utilities Code Section 21670 and overrule the Airport Land Use Commission's determination on October 18, 2012, that the Project is inconsistent with the Airport Environs Land Use Plan for John Wayne Airport. City Council Resolution No. 2013 -03 is hereby incorporated by reference. 10. On February 26, 2013, the City Council adopted Resolution No. 2013 -23 to overrule the Airport Land Use Commission's determination on October 18, 2012, that the Project is inconsistent with the Airport Environs Land Use Plan for John Wayne Airport. City Council Resolution No. 2013 -23 is hereby incorporated by reference. 11. Despite the occurrence of these impacts, however, the City Council may approve the Project if it adopts a Statement of Overriding Considerations that explain, in the City Council's view, the economic, social, and other benefits that the Project will produce and will render the significant effects acceptable. The record supports a Statement of Overriding Considerations pursuant to CEQA in that the Project includes public benefits that outweigh the air quality, land use and noise impacts of the proposed Project. A description of these public benefits included in Exhibit "A ". 12. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, It is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees and damages which may be awarded to a successful challenger. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Statement of Overriding Considerations. Pursuant to CEQA Guidelines Section 15093, the City Council of the City of Newport Beach has reviewed and hereby adopts the Statement of Overriding Considerations, attached as "Exhibit A ", which is incorporated herein by reference. City Council Resolution No. 2013 -22 Page 4 of 8 This Resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach held on the 26th of February, 2013. Keith C. Curry, Mayor ATTEST: t Auk Leilani I. Brown, City Clerk City Council Resolution No. 2013 -22 Page 5 of 8 EXHIBIT A STATEMENT OF OVERRIDING CONSIDERATIONS The City is the Lead Agency under CEQA for preparation, review, and certification of the Final EIR for the Uptown Newport Project. As the Lead Agency, the City is also responsible for determining the potential environmental impacts of the proposed action and which of those impacts are significant, and which can be mitigated through imposition of mitigation measures to avoid or minimize those impacts to a level of less than significant. CEQA then requires the Lead Agency to balance the benefits of a proposed action against its significant unavoidable adverse environmental impacts in determining whether or not to approve the proposed Project. In making this determination the City is guided by State CEQA Guidelines Section 15093 which provides as follows: CEQA requires the decision- making agency to balance, as applicable, the economic, legal, social, technological, or other benefits, including region -wide or statewide environmental benefits, of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits, including region -wide or statewide environmental benefits, of a proposal (sic) project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable." When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and /or other information in the record, The statement of overriding considerations shall be supported by substantial evidence in the record. If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091. In addition, Public Resources Code Section 21081(b) requires that where a public agency finds that specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in an EIR and thereby leave significant unavoidable effects, the public agency must also find that overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects of the project. Pursuant to Public Resources Code Section 21081(b) and the State CEQA Guidelines Section 15093, the City has balanced the benefits of the proposed Project against the following unavoidable adverse impacts associated with the proposed Project and has adopted all feasible mitigation measures with respect to these impacts. The City also has City Council Resolution No. 2013 -22 Page 6 of 8 examined alternatives to the proposed Project, none of which both meet the Project objectives and is environmentally preferable to the proposed Project for the reasons discussed in the Findings and Facts in Support of Findings. The Newport City of Beach City Council, the Lead Agency for this Project, and having reviewed the Final EIR for the Uptown Newport Project, and reviewed all written materials within the City's public record and heard all oral testimony presented at public hearings, adopts this Statement of Overriding Considerations, which has balanced the benefits of the Project against its significant unavoidable adverse environmental impacts in reaching its decision to approve the Project. Significant Unavoidable Adverse Environmental Impacts Although most potential Project impacts have been substantially avoided or mitigated, as described in the Findings and Facts in Support of Findings for the Uptown Newport Project Environmental Impact Report (State Clearinghouse No. 2010051094 ( "Findings "), there remain some Project impacts for which complete mitigation is not feasible. For some impacts, mitigation measures were identified and adopted by the Lead Agency, however, even with implementation of the measures, the City finds that the impact cannot be reduced to a level of less than significant. The impacts and alternatives are described below and were also addressed in the Findings. The EIR identified the following unavoidable adverse impacts of the proposed Project: Air Quality Phase 1 EIR Impact 5.2 -2: Short -term construction emissions generated by the Uptown Newport project would result in oxides of nitrogen (NOx) emissions that exceed the South Coast Air Quality Management District's (SCAQMD) regional significance thresholds during site preparation activities (year 2014 for Phase 1 and year 2017 and 2018 for Phase 2) and when construction activities of various phases overlap (year 2017 and 2018) and would cumulatively contribute to the nonattainment designations of the South Coast Air Basin (SoCAB). Of the eight years of construction, project - related construction activities would only exceed SCAQMD's threshold for three of those years because significant off -road equipment use and haul trucks are not necessary during vertical building construction. Mitigation Measure 2 -1 would reduce NOx generated by exhaust. Use of newer construction equipment would reduce construction emissions onsite. However, onsite emissions in addition to offsite emissions generated by haul trucks would generate substantial quantities of NOx and would continue to exceed SCAQMD's regional significance threshold. Therefore, during construction of the Project, this impact would remain significant and unavoidable. Phase 2 Same significant and unavoidable impact described for Phase 1 applies to Phase 2 City Council Resolution No. 2013 -22 Page 7 of 8 Land Use Phase 1 EIR Impact 5.9 -3: The Airport Land Use commission (ALUC) considered the Uptown Newport project at its hearing held on October 18, 2012 and voted to find the project inconsistent with the Commission's Airport Environs Land use Plan (AELUP) for John Wayne Airport (JWA) and AELUP for Heliports. Pursuant to State law, Project approval would require a 2/3 vote by the City Council to override ALUC's finding and this impact constitutes a significant, unavoidable impact of the Project. No mitigation measures are available that would reduce this impact to less than significant. Therefore, this impact would remain significant and unavoidable. Phase 2 Same significant and unavoidable impact described for Phase 1 applies to Phase 2 Noise Phase 1 EIR Impact 5.10 -6: During Phase 1 development, construction activity would have the potential to cause annoyance and interfere with activities of occupants at the nearby office buildings adjacent to the Project site and at the TowerJazz facility facing the construction area. Because of the height of the office buildings adjacent to the Project site, sound walls to block the line of sight between construction activities and nearby offices would be infeasible. Despite the application of mitigation measures, occupants at the offices adjacent to the Project site would be temporarily exposed to elevated noise levels during construction activities, and this impact would remain significant and unavoidable. Phase 2 EIR Impact 5.10 -6: The operation of heavy construction equipment during construction of Phase 2 would result in high noise levels at the residential buildings constructed under Phase 1 and at office buildings adjacent to the project site. Because of the height of these buildings, sound walls to block the line of sight between construction activities and nearby residents and office occupants would be infeasible. Despite the application of mitigation measures, nearby noise- sensitive uses would be temporarily exposed to elevated noise levels during construction activities, and this would remain significant and unavoidable. In addition, the EIR evaluated four alternatives to the Project and analyzed whether these alternatives could avoid or substantially lessen the unavoidable environmental impacts of the proposed Project. While some of the alternatives could lessen or avoid some of the unavoidable impacts of the proposed Project, some of the alternatives also resulted in different and in some cases, increased environmental impacts, consequently, for the reasons set forth in Section 6 of the Findings, none of the alternatives were determined to be feasible: No Project Alternative (Continuation of Existing Land Uses). City Council Resolution No. 2013 -22 Page 8 of 8 • Hotel /Office /Commercial Alternative Office /Commercial /Residential Alternative • Reduced Density Alternative The City evaluated the severity and duration of the significant, unavoidable impacts. The City, after balancing the specific economic, legal, social, technological, and other benefits including region -wide or statewide environmental benefits, of the proposed Project, has determined that the unavoidable adverse environmental impacts identified above may be considered acceptable due to the following specific considerations which outweigh the unavoidable, adverse environmental impacts of the proposed Project, in accordance with CEQA Section 21081(b) and State CEQA Guideline Section 16093. Payment of a public benefit fee per residential dwelling unit developed as part of the Project, including an annual adjustment to the public benefit fee based on the Consumer Price Index ( "CPI "). 2. Park land dedication and improvement s Municipal Code provisions, including the acres of on -site public parkland. consistent with applicable State law and dedication and improvement of over two (2) 3. Perpetual private maintenance of over two (2) acres of on -site public parks. 4. Improvement of private open space, including paseos and urban plazas that will be accessible to the public and connect the Project and surrounding properties to promote connectivity and pedestrian travel in the Airport Area. Remediation of soil and groundwater contamination on the Property that has existed on- site since the mid- 1980's. 6. Reduction in greenhouse gases generated within the Airport Area. 7. Reduction in electric, gas, water and sewer utility usage through the redevelopment of an existing industrial manufacturing site into a residential mixed use project. 8. Reduction of urban runoff volumes and implementation of stormwater runoff water quality facilities that will improve the quality of stormwater runoff exiting the Project and ultimately entering the Newport Back Bay, 9. Construction of affordable housing units within the Project that will provide affordable housing opportunities to Newport Beach residents. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2013 -22 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 26th day of February, 2013, and that the same was so passed and adopted by the following vote, to wit: Ayes: Gardner, Hill, Selich, Henn, Daigle, Mayor Curry Nays: None Recused: Petros IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of February, 2013. t City Clerk Newport Beach, California (Seal)