HomeMy WebLinkAboutPC2022-008 - RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT (DA2022-001) FOR THE TENNIS CLUB SITE WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY LOCATED AT 1602 EAST COAST HIGHWAY (PA2022-038)RESOLUTION NO. PC2022-008 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT (DA2022-001) FOR THE TENNIS CLUB SITE WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY LOCATED AT 1602 EAST COAST
HIGHWAY (PA2022-038)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. On March 27, 2012, the City Council of the City of Newport Beach (“City”) adopted Ordinance No. 2012-3 approving Development Agreement No. DA2008-001 (“Agreement”) between the City and Golf Realty Fund (“GRF”) for the Tennis Club site
within the Newport Beach Country Club Planned Community. The Agreement was
executed and recorded, as document number 2014000036369 on January 29, 2014. The effective date of the Agreement is September 27, 2012 with a term of ten years. 2. GRF has requested a first amendment to extend the term of the Agreement one additional
year, from September 27, 2022 to September 27, 2023 (“First Amendment”), in order to
develop the Tennis Club site consistent with the Newport Beach Country Club Planned Community (PC-47). The approved entitlements for the Tennis Club site, including development regulations and required conditions of approval as provided in the Agreement, remain unchanged by this First Amendment.
3. Section 15.45.040 (Development Agreements; Contents) of the Newport Beach Municipal Code (“NBMC”) requires development agreements include, among other provisions, the term, permitted uses, density and intensity of development, and maximum height and size of proposed buildings. The Agreement meets the requirements of Section 15.45.040 of the
NBMC as it includes the permitted uses, density and intensity of development, and
maximum height and size of the proposed buildings. None of those provisions are changed by this First Amendment. 4. The Planning Commission held a public hearing on May 12, 2022 which was continued to
May 26, 2022, in the City Council Chambers, located at 100 Civic Center Drive, Newport
Beach, California, at which time the Planning Commission considered the First Amendment. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), California Government Code Section 65867 and Section 15.45.050 (Public Hearing-
Notice) of the NBMC. Evidence, both written and oral, was presented to, and considered
by, the Planning Commission at this hearing.
Planning Commission Resolution No. PC2022-008 Page 2 of 4
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
In accordance with the California Environmental Quality Act (“CEQA”) set forth in the California
Public Resources Code Section 21000, et. seq. and its implementing State regulations set forth in the California Code of Regulations, Title 14, Division 6, Chapter 3 (“CEQA Guidelines”): 1. On March 27, 2012, the Newport Beach City Council approved Mitigated Negative
Declaration No. ND2010-008 (SCH 2010091052) and an Errata to Mitigated Negative
Declaration No. ND2010-008 (together referred as “MND”) that addressed the potential environmental effects associated with the Tennis Club site within the Newport Beach Country Club Planned Community (“Project”).
2. All environmental concerns for the Project are addressed in the previously approved
MND. The First Amendment does not change the Project but rather only extends the Term of the Agreement by one year. The First Amendment does not amend development standards, development requirements, or required mitigation measures identified in the MND.
The Planning Commission 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. SECTION 3. FINDINGS.
1. The City Council previously found the Agreement consistent with Land Use Element of
the General Plan which designates the Tennis Club site as Mixed Use Horizontal 3/Park and Recreation (MU-H3/PR). The MU-H3/PR designation on the Tennis Club site provides for the horizontal intermixing of regional commercial office, hotel, single-family and multi-family residential and ancillary commercial uses. The PR designation allows
active public or private recreational uses including parks (both active and passive), golf
courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. 2. The City Council previously found the Agreement consistent with Section 15.45.040
(Development Agreement Content) of the NBMC as it included all the necessary
components including the term, permitted uses, density and intensity of development, and maximum height and size of proposed buildings to be developed on the Tennis Club site, when it adopted Ordinance No. 2012-3 in 2012. With the exception of extending the term, all of the other necessary components articulated above, remain unchanged
by this First Amendment.
3. The Planning Commission finds extension of the Agreement for one additional year is consistent with provisions of California Government Code Sections 65864 to 65869.5 and Chapter 15.45 (Development Agreements) of the NBMC that authorize binding
Planning Commission Resolution No. PC2022-008 Page 3 of 4
agreements that: (i) encourage investment in, and commitment to, comprehensive planning and public facilities financing; (ii) strengthen the public planning process and
encourage private implementation of the local general plan; (iii) provide certainty in the
approval of projects in order to avoid waste of time and resources; and (iv) reduce the economic costs of development by providing assurance to the property owners that they may proceed with projects consistent with existing policies, rules, and regulations. With the exception of extending the term, all of the other necessary components articulated above,
remain unchanged by this First Amendment.
SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach, California hereby recommends to the City Council: 1. All significant environmental concerns for the Project have been addressed in Negative
Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration No.
ND2010-008 and no new or additional impacts will result from the First Amendment. The First Amendment does not change the Project but rather only extends the term of the Agreement by one year. The First Amendment does not amend any development standards, development requirements, or required mitigation measures identified in
Negative Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration
No. ND2010-008. 2. Adopt the First Amendment to Development Agreement No. DA2008-001 between the City of Newport Beach and GRF to extend the term of the Agreement by one year, from
September 27, 2022 to September 27, 2023. Except as modified by the First Amendment,
the Planning Commission recommends the amended Agreement remain in full force and effect.
Planning Commission Resolution No . PC2022-008
Page 4 of 4
PASSED, APPROVED, AND ADOPTED THIS 26th DAY OF MAY, 2022.
AYES: Ellmore, Klaustermeier, Kleiman , Koetting, Lowrey, and Weigand
NOES: None
ABST Al N: None
Curtis Ellmore, Secretary
Attachment(s): Exhibit A -First Amendment to Development Agreement
EXHIBIT A
First Amendment to Development Agreement No. DA2008-001
RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO:
City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: City Clerk
(Space Above This Line Is for Recorder’s Use Only) This First Amendment is recorded at the request and
for the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383.
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH and
GOLF REALTY FUND
CONCERNING PROPERTIES LOCATED AT NEWPORT BEACH TENNIS CLUB WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT
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FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864-65869.5)
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the “First Amendment”) is entered into and effective on the date it is recorded with the Orange County Recorder (“Effective Date”) by and between the CITY OF NEWPORT BEACH (“City”), and GOLF REALTY FUND, a California limited partnership “Property Owner”). City and Property Owner are sometimes collectively referred to in this First Amendment as the
“Parties” and individually as a “Party.”
RECITALS
A. Property Owner is the managing owner of and owns a fee interest in title to that certain real property located in the City of Newport Beach, County of Orange, State of California which is more particularly described in the legal description attached as Exhibit “A” and
depicted on the site map attached hereto as Exhibit “B” (“Property”). The Property consists of
approximately seven (7) acres within the area shown on the City’s Zoning Map as the Newport Beach Country Club Planned Community District. The Property comprises the Newport Beach Tennis Club site shown on Exhibit “B”, which consists of The Villas Sub-Area, The Tennis Club Sub-Area, and The Bungalows Sub-Area.
B. City and Property Owner entered into that certain Development Agreement
between the City of Newport Beach and Golf Realty Fund dated March 27, 2012, and recorded in the Official Records of Orange County on January 29, 2014, as document number 2014000036369 (“Agreement”) attached hereto as Exhibit “C” with a ten (10) year term.
C. On November 20, 2018, the City approved Coastal Development Permit No.
CD2017-039 to allow the demolition of the 18 existing tennis courts and construction of Tennis Club, Villas and Bungalows at the Tennis Property, however, the Agreement was not amended or modified. D. The Parties now wish to enter into that First Amendment extending the term for
an additional year.
E. On May 12, 2022, the Planning Commission noticed a public hearing on this First Amendment and continued the item to a date certain, May 26, 2022, at the conclusion of the public hearing.
F. On May 26, 2022, the Planning Commission held a noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff, Property Owner, and members of the public. Consistent with applicable provisions of the Development Agreement Statute and Ordinance, the Planning Commission adopted Resolution No. PC2022-008, recommending the City Council approve this First Amendment.
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G. On _____________, 2022, the City Council held a noticed public hearing on this First Amendment and considered the testimony and information submitted by City staff,
Property Owner, and members of the public. On ____________, 2022, consistent with
applicable provisions of the Development Agreement Statute and Ordinance, the City Council held second reading and adopted Ordinance No. ________ approving this First Amendment.
H. This First Amendment is consistent with the City of Newport Beach General Plan (“General Plan”), including without limitation the General Plan’s designation of the
Property as “MU-H3/PR” (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the
Coastal Land Use Plan’s designation as “MU-H/PR (Mixed Use Horizontal / Parks & Recreation”, the Newport Beach Country Club Planned Community District that was adopted in 1997 by Ordinance No. 97-10 in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan, and the Newport Beach Country
Club Planned Community Development Plan No PC2005-002 approved for the Property on
March 27, 2012 by Ordinance No. 2012-2.
I. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this First Amendment: (i) is consistent with the City of Newport Beach General Plan as of the date of this First Amendment; (ii) is in the best interests of the
health, safety, and general welfare of City, its residents, and the public; (iii) is entered into
pursuant to, and constitutes a present exercise of, City’s police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119) and the Mitigated Negative Declaration No. ND2010-008 for the Newport Beach Country Club Planned
Community District (PA2005-002) approved by the City Council, both of which analyze the
environmental effects of the proposed development of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 et seq. and Chapter 15.45 City of Newport Beach Municipal Code (“NBMC”).
AGREEMENT
NOW, THEREFORE, City and Property Owner agree as follows:
1. Term of Agreement. Section 2.4 of the Agreement is hereby amended in its entirety to read as follows:
“The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until _______________ 2023, unless
otherwise terminated or modified pursuant to its terms.
Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 13.10 (as well as any other Property Owner obligations set forth in this Agreement that are expressly written to survive the
Termination Date) shall survive the Termination Date of this
Agreement.”
2. Attorneys’ Fees. Section 8.10 of the Agreement is hereby amended in its entirety to read as follows:
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“In any judicial proceeding, arbitration, or mediation (collectively, an “Action”) between the Parties that seeks to enforce the
provisions of this Agreement or arises out of this Agreement, the
prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include, but are not limited to, court costs, expert witness
fees, attorneys’ fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action.”
3. Notices. Section 13.1 of the Agreement is hereby amended in its entirety to read
as follows:
“Any notice or demand that shall be required or permitted by law or any provision of this Agreement and First Amendment shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited by a
reliable courier service that provides a receipt showing date and
time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows:
TO CITY: City of Newport Beach 100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Manager With a copy to: City of Newport Beach 100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Attorney TO PROPERTY OWNER: Golf Realty Fund One Upper Newport Plaza
Newport Beach, CA 92660
Attn: Robert OHill With a copy to: ________________________
________________________
________________________
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Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this
Section 13.1, and thereafter, notices to such Party shall be
addressed and submitted to the new address. Notices delivered in accordance with this First Amendment shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above.”
4. Full Force and Effect. Except as modified by the First Amendment, the entire
Agreement, its exhibits, and the exhibits attached hereto, are incorporated herein to this First Amendment and shall remain in full force and effect.
5. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
“PROPERTY OWNER” GOLF REALTY FUND, a California limited partnership
By:
Its:
By:
Its:
“CITY” CITY OF NEWPORT BEACH, a California municipal corporation
By:
Kevin Muldoon, Mayor
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
Attachments: Exhibit A – Legal Description of Property
Exhibit B – Depiction of Property Exhibit C – Development Agreement Recorded January 29, 2014
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ACKNOWLEDGMENT
State of California County of ______________________} ss. On _________________________, 20_____ before me, ______________________________, Notary Public, personally appeared _______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. _________________________________ Signature (seal)
ACKNOWLEDGMENT
State of California County of ______________________} ss.
On _________________________, 20_____ before me, ______________________________, Notary Public, personally appeared _______________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _________________________________
Signature (seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A-1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Parcel 1 and Parcel 2 of Parcel Map 94-102, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 316, Pages 3 to 6, inclusive, of Parcel Maps, in the
office of the County Recorder of Orange County.
B-1
EXHIBIT B
DEPICTION OF PROPERTY
C-1
EXHIBIT C DEVELOPMENT AGREEMENT RECORDED JANUARY 29, 2014