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HomeMy WebLinkAboutMaterials Received After Packet PublishedONE MARKET PLAZA, STEUART TOWER, 8TH FLOOR SAN FRANCISCO, CA 941 05 -1 00 8 SedDETERT, MN 6 ARNOLD LLP August 19, 2010 Via Electronic Maid Chairman Earl McDaniel City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92658 www.idma.com 415.781.7900 phone 415.781.2635 fax Anna Shimko anna.shimko@sd,va.com Re: PRES Office Building B Project; No Recirculation of Negative Declaration Required Dear Chairman McDaniel and Commissioners, This firm represents Professional Real Estate Services, Inc., the proponent of the PRES Office Building B project (the "Project's that you will be considering at this evening's Planning Commission hearing. As you know, a Mitigated Negative Declaration (the "MND ") has been prepared under the California Environmental Quality Act ( "CEQA ") to examine the environmental impacts associated with the Project. The MND, published May 19, 2010, was updated via an Errata dated August 13, 2010. We understand that the question has been posed whether the changes made by the Errata to the original MND necessitate recirculation of the MND for an additional public review period before the MND may be adopted and applied to the Project approvals. We wish to assure you that we have thoroughly reviewed the MND and have concluded with certainty that none of the triggering circumstances exist that would require the MND to be recirculated. Rather, the Errata merely amplifies and clarifies data and conclusions already reached in the original MND such that the Planning Commission can confidently adopt and employ the MND at tonight's hearing. By way of brief introduction, I have specialized in CEQA law for the past 24 years, representing both private landowners and public agencies with CEQA compliance matters at the administrative level and in litigation. Some of our current clients include Home Depot, Safeway and Pixar on the private development side, and the localities of San Carlos, Foster City and Woodside on the public agency side. I have a particular CEQA sub - specialty in issues involving recirculation of negative declarations and environmental impact reports ( "EIRs "), having served as counsel to the University of California — San Francisco in the Supreme Court decision that set the standard for recirculation of EIRs,1 and that prompted the formulation of the CEQA guidelines that govern your decision this evening. CEQA Guidelines section 15073.5 provides that a lead agency must recirculate a negative declaration when it has been "substantially revised" after its release for public review, with "substantial revision" meaning that either (1) a new significant environmental impact has been identified and mitigation measures must be added to alleviate such impact, or (2) the lead agency has concluded that the proposed mitigation measures will not reduce the identified impacts to a less than significant level and new mitigation measures must be ' Laurel Heigbts Improvement Assn v. Regents of the Universitty of California, 6 Cal. 44' 1112 (1993). Chairman Earl McDaniel August 19, 2010 Page 2 added. CEQA Guidelines section 15073.5(c)(4) provides that recirculation is not required where "[n]ew information is added to the negative declaration which merely clarifies, amplifies, or makes insignificant modifications to the negative declaration." Here, the additional explanation in the Errata expands upon and bolsters, but in no way alters, the conclusions of the originally published MND. The Project description has not changed, except so as to make the building slightly shorter, thereby arguably decreasing impacts. No new mitigation measures have been added, and none were needed given that all conclusions regarding significant environmental impacts remain identical to those reached in the MND published in May, 2010. The changes provided by the Errata simply provide additional explanation to the public and decision - makers of the basis for the conclusions already drawn by the MND. In my view and based upon my experience, this is a classic example of information being added to a negative declaration in order merely to amplify, clarify or make insignificant modifications to the document and in no way triggering a recirculation requirement. I urge you to adopt the MND this evening and to approve the Project. I invite any questions or comments at any time, and appreciate the opportunity to communicate with you on this issue. Very truly yours, Av-,vie'--- c--' 7 Anna C. Shimko Sedgwick, Detert, Moran & Arnold LLP cc: David Lepo, Planning Director Newport Beach City Clerk Gaylene Olson Brad Schroth John Fitzgibbon LAW OFFICES PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS ANGELO J. PALMIERI (1926-19961 ROBERT F. WALDRON (1927-1998) ALAN H. WIENER' ROBERT C. IHRKO JAMES E. WILHELM' DENNIS G. TYLER' MICHAEL J. GREENE' DENNIS W. GRAN' DAVID D. PARR' CHARLES H. RANTER' PATRICK A. HENNESSEY DON FISHER GREGORY N. WEILER WARREN A WILLIAMS JOHN R. LISTER CYNTHIA M. WOLCOTT GARY C. WEISBERG MICHAEL H. LEIFER SCOTT R. CARPENTER RICHARD A. SALUS NORMAN J. RODICH RONALD M. COLE MICHAEL L. D'ANGELO STEPHEN A. SCHECK DONNA L. SNOW RYAN M. EASTER ELISE M. KERN MELISA R. PEREZ ELIZABETH VALADEZ AMISH J. BANKER MICHAEL I. KEHOE ROBERT H. GARRETSON RYAN M. PRAGER CHADWICK C. BUNCH ANNIE C. CHU JERAD BELTZ HEATHER H. WHITEHEAD ERIN BALSARA NADERI DEREK M. DEHANKE F. JUUAN FREEMAN III ERICA M. SOROS" CASEY W. BOURNE KIMBERLY C. LUDWIN /. PROFESSIONAL CORPORATION 2603 MAIN STREET EAST TOWER - SUITE 1300 IRVINE, CALIFORNIA 926144281 (949) 651 -9400 www.ptwW W.com August 19, 2010 VIA HAND DELIVERY AND EMAIL Chairman Earl McDaniel City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92658 Robert Hawkins Charles Unsworth Michael Toerge Barry Eaton Bradley Hillgren Fred Ameri Planning Commissioners City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92658 P.O. BOX 19112 IRVINE, CA 92623-9712 WRITER'S DIRECT DIAL NUMBER (949) 851 -7290 WRITER'S DIRECT FACSIMILE NUMBER (949) 825 -5433 FIRM'S DIRECT FACSIMILE NUMBERS 19491 851 -1554 1949) 151 -1225 jfreema n @ ptwww. com Re: PRES Office Building B Project: Initial Study, Mitigated Negative Declaration, and Amended Errata; General Plan and Planned Community Text Amendments enda Item No. 4; P Dear Mr. Chairman and Planning Commissioners: REFER TO FILE NO, 31191 -001 ist 19, 2010 Planning Commission -213) As you know, this office is legal counsel for Meyer Properties, a California limited partnership ( "Meyer "), which owns that certain office building located at 4320 Von Karman Avenue, in the Koll Center Newport Planned Community (the HKoll Center "), City of Newport Beach, California (the "Meyer Building "), which is contiguous to the proposed project development of an approximately 48 foot high, 11,960- gross - square feet office building (the "Project ") at 4300 Von Karman Avenue, in the Koll Center, in the City of Newport Beach (the IlCityl'). PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 2 The Meyer Building will be directly affected by many of the adverse environmental impacts identified in the Mitigated Negative Declaration for the PRES Office Building B General Plan and Planned Community Text Amendments (the "Study "), and the Errata to the Study, as amended August 13, 2010 (the 'Errata ") (which was released to the public on August 16, 2010), for the Project. As you are aware, this office submitted comment letters on behalf of Meyer on June 7, 2010 (the "Initial Comment Letter ") and August 5, 2010 (the "Second Comment Letter "), and provided comments at the continued August 5, 2010 Planning Commission public hearing on the Project. The City has amended the Errata to modify the Study to include revisions relating to the public comments. We have reviewed the Errata and are submitting this comment letter to inform the City that the Study and the Errata are still inadequate to serve as the environmental document for the Project under the California Environmental Quality Act ( "CEQA "), that a single EIR must be prepared for the Project and two related projects in the Koll Center, that analysis of cumulative impacts relating to the Project and the two related projects must be included in the EIR, that Newport Beach Charter Section 423 requires voter approval of the general plan amendment for the Project and the related Koll Center office building project, that the general plan amendment and Koll Center Development Standards text amendment are inconsistent with the General Plan, and that the Project is inappropriate for the Koll Center. I. CLARIFICATION OF THE SCOPE AND INTENT OF THE PROJECT. The Project proposes to build an additional building on the Project site, and does not propose to remove and replace an existing office building. An office building currently exists on the Project site, will remain on the Project site, and the Project proposes to remove a designated parking area to construct the proposed additional office building. The designated parking area that is proposed to be removed provides parking to the Koll Center buildings and was designed as a parking area to ensure ample parking consistent with the Koll Center Development Standards. Additionally, we would like to inform the Planning Commission of an important point that it may not have been aware of when discussing the Project at the meeting on PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 3 August 5, 2010. Planning staff and consultants for PRES informed the Planning Commission at the August 5th meeting that PRES intends to occupy the proposed new office building as its headquarters, and that PRES has spent considerable time and money working towards this end. Please note that PRES does not intend to occupy the proposed new building, as evidenced by the attached photograph of a sign at the Koll Center, prepared by PRES, advertising a "New Build -To- Suit - Opportunity" ( "Exhibit "A" ), and the attached marketing materials prepared by PRES for a "Build -To- Suit - Opportunity" ( "Exhibit "B "). Moreover, the sign depicted in Exhibit "A" is also depicted in the amended Errata, labeled Attachment I, "Viewpoint #7 East -side Sidewalk View to Project Site (moving north along Von Karman Ave.)." Accordingly, PRES's purported intent to occupy the proposed office building as its headquarters appears to not be true, and is not a valid consideration for approving the Study and the Project. It appears that PRES's intent is to obtain and sell valuable entitlements, solely for its own monetary profit, by asking the City to take extraordinary measures to amend the general plan and Koll Center Development Standards text in violation of the stated goals of these documents. II. UNLAWFUL PIECEMEALING OF THE ENVIRONMENTAL ANALYSIS OF THE PROJECT. As stated in the Second Comment Letter, the Project unlawfully piecemeals the whole of a project into smaller projects that, when analyzed independently, result in lesser aggregate environmental impacts then when analyzed together. The Project is part of a larger project affecting the Koll Center that proposes to completely reconfigure and alter the Koll Center by building a residential village (the "Residential Village Project "), which proposes to add several residential buildings and common areas to the Koll Center, and plans to designate the lake and common areas contiguous to the Project site as a park or otherwise use as amenities for the Residential Village Project. Additionally, the larger project affecting the Koll Center includes the addition of another office building in the Koll Center, commonly known as the Newport Plaza project, which will also require a general plan amendment and Koll Center Development Standards text amendment (the "Newport Plaza Project "). The Project, the Residential Village Project, and the Newport Plaza Project must be analyzed together in a single EIR. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 4 CEQA Guidelines define "Project" to mean the "whole of an action" that may result in either a direct or reasonably foreseeable indirect physical change in the environment. CEQA Guidelines 15378(a). "Project is given a broad interpretation in order to maximize protection of the environment." McQueen v. Board of Directors of Midpennsulia Region Open Space District, 202 Cal. App. 3rd 1136 (1988). California courts have held that a lead agency must analyze each "project" consisting of a part of an entire action in a single environmental review document and not "split" a project into two or more segments. Such single comprehensive review ensures that environmental considerations do not become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have very dire consequences. Burbank- Glendale- Pasadena Airport Authority v. Hensler (1991) and Bozung v. Local Agency Formation Commission, 13 Cal. 3rd 263 (1975). Here, the Study does not review the entire action that is contemplated, which is tantamount to unlawful piecemealing. The Project is merely one piece of a much greater project that includes an additional General Plan amendment for the Newport Plaza Project, an additional amendment to the Koll Center Development Standards text for the Newport Plaza Project, and a massive residential development project in the Koll Center and property contiguous to the Koll Center to be governed by an Integrated Conceptual Development Plan (the "Residential Village Project "). Accordingly, the environmental analysis relating to the Project is required by CEQA to be analyzed together with the Newport Plaza Project and the Residential Village Project. For further discussion of the City's requirement to combine the environmental analysis for the Newport Plaza, please see Section II of the Second Letter. III. THE STUDY MUST ANALYZE CUMULATIVE IMPACTS. Pursuant to CEQA Guidelines Section 15165, a public agency must comment upon the cumulative effects of similar projects of a public agency. Thus, even if the City is not required to analyze the environmental impacts associated with the Project, the Newport Plaza Project, and the Residential Village Project in a single EIR (as we believe it is, as set forth in Section I of this letter), it must at least analyze the cumulative impacts associated with the three projects in each environmental document. The Study did not PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 5 comment upon or analyze Any of the cumulative impacts associated with the Project, the Newport Plaza Project, and the Residential Village Project. The relevant portion of CEQA Guidelines Section 15165 provides as follows: "Where individual projects are, or a phased project is, to be undertaken and where the total undertaking comprises a project with significant environmental effect, the lead agency shall prepare a single program EIR for the ultimate project as described in Section 15168. Where an individual project is a necessary precedent for action to a larger project, with significant environmental effect, an EIR must address itself to the scope of the larger project. Where one project is one of several similar projects of a public agency but is not deemed a part of a larger undertaking or a larger project the agency may prepare one EIR for all projects or one for each project, but shall in either case comment upon the cumulative effect." [Emphasis added]. The Project, the Newport Plaza Project, and the Residential Village Project are all similar projects of a public agency, the City. The Project proposes to develop an office building in the General Plan Statistical Area L4, Anomaly Location #2, and specifically located in the Koll Center. Likewise, the Newport Plaza Project proposes to develop an office building in the General Plan Statistical Area L4, Anomaly Location #2, and specifically located in the Koll Center. The Project and the Newport Plaza Project will certainly generate cumulative impacts, none of which have been analyzed in the Study. For example, impacts relating to, inter alia, construction, traffic, noise, land use and zoning, vibration, aesthetics, and air quality will all be more intense with the concurrent construction of two office buildings in the office park. These cumulative impacts must be identified and analyzed in the Study. Similarly, the Residential Village Project is a similar project of the City that will generate cumulative impacts that were not identified and analyzed in the Study. The Residential Village Project will be located in the Koll Center, and proposes to designate the property contiguous to the Project site, including the lake, as a public park or to otherwise use such property as an amenity for the Residential Village Project. The concurrent general plan amendments and construction relating to the Project and the Residential Village Project will generate a panoply of cumulative impacts. There will be cumulative impacts relating to, inter alia, land use and zoning, vibration, construction, air PALMIERI, TYLER, WIENER, WILRELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 6 quality, noise, water quality, biological resources, traffic, and aesthetics. Again, none of these impacts were identified and analyzed in the Study. CEQA Guidelines Section 15165 clearly states that cumulative impacts associated with similar projects of a public agency must address cumulative impacts associated with such projects, whether they are addressed in a single EIR or independent EIRs. Clearly, the Project, the Newport Plaza Project, and the Residential Village Project are similar projects that will generate some cumulative impacts that must be addressed in a single EIR, or at the very least in independent EIRs. The Study failed to identify and analyze these cumulative impacts. Accordingly, the Study is inadequate to serve as the environmental document for the Project under CEQA. IV. THE PROJECT IS INCONSISTENT WITH THE NEWPORT BEACH GENERAL PLAN. As discussed in both the Initial Comment Letter and the Second Comment Letter, the Project is inconsistent with the Newport Beach General Plan and the Koll Center Newport Planned Community text (the "Koll Center Text "). The inconsistencies with the General Plan and the Koll Center Text establish a fair argument on the basis of substantial evidence that the Project will have significant environmental impacts. Although the Planning Commission and Planning Commission staff have been put on notice of the significant environmental impacts relating to land use and planning, no revisions to the Study were included in the Errata. Accordingly, as stated in the Second Comment Letter, the comments regarding the inadequacy of the analysis of the impacts to land use remain unref ited. The following comments regarding the inconsistencies between the Project and the general plan amendment are included in this letter to supplement the comments set forth in the Initial Comment Letter and the Second Comment Letter. These supplemental comments are necessary to (i) ensure that the City complies with its General Plan regarding land use policies and obtaining necessary voter approvals, and (ii) emphasize the inadequacy of the land use analysis in the Study and to put the City on notice, for the third time, that there is a fair argument on the basis of substantial evidence that the PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 7 Project will have significant environmental impacts to land use, and therefore an EIR is required to be prepared for the Project. A. The General Plan May Not Be Adopted Without Voter Approval Pursuant to Charter Section 423 (Measure S). As set forth in further detail in the Second Comment Letter, approval of the general plan amendment for the Project requires voter approval pursuant to Charter Section 423. The general plan amendment for the Project is being considered by the Planning Commission separately from the general plan amendment for the Newport Plaza Project, even though each general plan amendment proposes to increase the maximum allowable development area above the maximum currently provided in the Newport Beach General Plan for the Airport Area, and specifically within the Koll Center. Indeed, as stated by Janet Johnson Brown, Associate Planner, at the August 5, 2010 Planning Commission Meeting, in response to a question from Commissioner Eaton, the allowable square footage for each general plan amendment was determined so that both general plan amendments could be adopted by the City, in either order, without requiring voter approval of the citizens of Newport Beach. If the square footage increase was combined into a single general plan amendment, such general plan amendment would be considered a "major amendment" under Charter Section 423 and would require voter approval. Simply put, these two general plan amendments must be combined into a single general plan amendment. Each amendment independently proposes to expand maximum allowable development within the Airport Area, and specifically within the Koll Center. The cumulative impacts associated with expanding maximum allowable development via two separate amendments area are not identified and analyzed in the corresponding environmental review documents, and the public therefore does not have the benefit of reviewing such impacts. Moreover, the citizens of Newport Beach are entitled to approve by vote amendments to the General Plan in this area that exceed 40,000 square feet, pursuant to Charter Section 423. By splitting what should be a single general plan amendment into two general plan amendments, for the admitted purpose of avoiding the requirements of PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 8 Charter Section 423, the City is deceiving its citizens and divesting them of their vested right to approve of such expansion within the Airport Area. B. The Project is Inconsistent with the Land Use Policies Set Forth in the General Plan. At the Planning Commission meeting on August 5, 2010, the Planning Commission requested that Planning staff address the consistency of the Project and Land Use Policy 3.2. Accordingly, the staff report prepared for the August 19, 2010 Planning Commission Meeting (the "Staff Report") provides additional analysis regarding the Project's consistency with Land Use Policy 3.2, as well as with Land Use Policy 3.3. However, the analysis in the Staff Report is not included in the Study or the Errata. Any additional analysis of the impacts relating to consistency with land use policy must be included in the Study so that interested parties may review the environmental analysis pursuant to the procedures provided by CEQA. Additionally, regardless of the omission of this analysis from the Study and the Errata, the analysis of the consistency of the Project with Land Use Policy 3.2 and 3.3 is conclusory, incomplete, and inadequate. Furthermore, the analysis of the consistency of the Project with other Land Use Policies set forth in Section X of the Study and Appendix C to the Study is also inadequate. Accordingly, further analysis of the consistency of the Project with the General Plan Land Use Policies must be provided in an EIR. In addition, as discussed in detail in the Initial Comment Letter, the Study does not discuss the consistency of the Project with the General Plan's stated purpose and vision statement. The Project is in direct conflict with the General Plan's stated purpose and vision statement and this conflict must be identified and analyzed in an EIR. 1. History and Purpose of the General Plan. The Introduction of the General Plan sets forth the history and purpose of the General Plan, and the efforts that led to its adoption on July 25, 2006. Specifically, the Introduction describes how thirty-eight residents representing all segments of the community (the "Committee ") developed the General Plan, after thorough study of input of thousands of residents. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 9 According to p. 1 -2 of the General Plan, the Committee spent more than four years "during the most extensive public outreach in the City's history" preparing the General Plan. Indeed, the Introduction celebrates the General Plan and the process by which the Committee and the City's residents participated to have their input incorporated into the document. The General Plan includes a "Vision Statement" that describes "what the residents want the City to be now and in 2025." Specifically, the Introduction states on p. 1 -2 that the General Plan was developed to ensure that the City achieves its Vision Statement by, inter alia, "[rleducing potential new commercial, office, and industrial space by 1.45 million square feet." [Emphasis added]. The Introduction further states on p. 1 -9 that "the General Plan is also a tool to help City staff, City Commissions, and the City Council make land use and public investment decisions" and that "[f]uture development decisions must be consistent with the Plan." [Emphasis added]. Here, the Project proposes to expand the maximum allowable development in the Koll Center, which is in direct conflict with the Vision Statement. Despite this clear conflict, neither the Study, the Errata, nor any of the staff reports relating to the Project identify and analyze the Project's inconsistency with the General Plan's Vision Statement. 2. Land Use Policy 3.2. The Staff Report analyzes the Project's consistency with General Plan Land Use Element Policy 3.2 ( "LU 3.2 "). This analysis does not provide a complete and objective analysis of the consistency of the Project with LU 3.2. To the contrary, the analysis merely sets forth conclusory statements and advocates subjectively in favor of the Project. An objective analysis of the consistency of LU 3.2 reveals that the Project is not consistent therewith. General Plan Land Use Element Policy 3.2 states as follows: "Growth and Change Enhance existing neighborhoods, districts, and corridors, allowing for re -use and infill with uses that are complementary in type, form, scale, PALMIERI, TYLER, WIENER, WILRELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 10 and character. Changes in use and/or density /intensity should be considered only in those areas that are economically urperforming are necessary to accommodate Newport Beach's share of projected regional population growth improve the relationship and reduce commuting distance between home and jobs, or enhance the values that distinguish Newport Beach as a special place to live for its residents. The scale of growth and new development shall be coordinated with the provision of adequate infrastructure and public services, including standards for acceptable traffic level of service." LU 3.2 limits the ability of decision - makers to make changes to established land use polices only under very narrow circumstances, none of which are present for the Project. First, the Project area is not economically underperforming. The Koll Center and the surrounding area are thriving in the heart of Newport Beach's business district. Having an open parking area to serve office buildings within an office park does not qualify as economic underperformance. The open parking area where the Project site is located was designed and built to serve the buildings of the Koll Center. Likewise, the conversion of the former restaurant building in the Koll Center to an office building does not qualify as economic underperformance. To the contrary, the restaurant itself was economically underperforming, and the conversion of the restaurant building to an office building has eliminated this economically underperforming use. It is also important to note that the Project applicant voluntarily converted the existing building from restaurant use to office use in 2005. This conversion resulted in additional square footage designated as office use in the Koll Center. A voluntary conversion of restaurant space to office space may not be considered when determining whether a space is economically underperforming. Second, the Project is not necessary to accommodate Newport Beach's share of projected regional population growth. Nothing in the Study or the Errata documents any necessity to meet projected regional population growth. However, if the Project was being built to accommodate the population growth that will result from the Residential Village Project, then the Project should be considered part of, and evaluated in an EIR for, the Residential Village Project which is contiguous to the Project site. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 11 Third, the Project will not reduce commuting distance between home and jobs. The Koll Center is located in a business district that provides jobs to commuters from Orange, Los Angeles, San Diego, and Riverside Counties. Additional jobs in this area will only increase commuting distance between home and jobs for those that commute to the Newport Beach business district. Finally, the Project will not enhance the values that distinguish Newport Beach as a special place for its residents. The residents of Newport Beach determined when they drafted and adopted the Vision Statement that an express goal of the General Plan is to reduce commercial and office space in the City. This Project proposes to add, rather than reduce, additional office space to the City, and specifically to an area that would require a general plan amendment to increase the maximum allowable development area. Furthermore, the general plan was planned and adopted with express develop limitations imposed on the Airport Area, and specifically the Koll Center. Expanding allowable development area, via the general plan amendments for the Project and the Newport Plaza Project, directly conflicts with the values set forth by the citizens of Newport Beach in the General Plan. Analysis of Other General Plan Land Use Element Policies. Appendix C of the Study identifies various General Plan Land Use Element polices in a table and provides a brief analysis for each policy. The analysis in Appendix C concluded that the Project is consistent with every policy identified in the table. Many of the conclusions reached in Appendix C are supported by superficial analysis and provide no detailed analysis to support the conclusions. Specifically, Appendix C did not adequately analyze whether the Project is consistent with, inter alia, the following policies: • LU 3.1 Neighborhoods, Districts Corridors and Open Spaces: This conclusion incorrectly states that the Project would blend in with the existing architectural characteristics of the Koll Center. The Project proposes to build an office building that dwarfs the neighboring buildings that share the adjacent lake and parking area. Additionally, the architectural style is entirely different than the architectural style of the surrounding buildings. PALMIERI, TYLER, WIENER, WILRELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 12 • LU 5.4.1 Site Planning: This conclusion ignores the elimination of open space in the Koll Center area resulting from the construction of an additional office building in the Project area. • LU 5.4.2 Development Form and Architecture: This policy requires that new development of office buildings be designed to convey a unified character. The proposed office building is approximately 48 ft. and three - stories tall, while the surrounding buildings are only one or two stories tall. None of the buildings in the vicinity of the Project site are even close to being 48 ft. tall. Indeed, the Meyer Building located next door is only 14.5 ft. tall, and has a completely different architectural style. Furthermore, although the Planning staff described this building as only a two -story building at the August 5, 2010 hearing, the building is actually three stories tall, including the first floor parking structure, and is much taller than an average three -story building. Describing the Project building as "two- story" is misleading. The height and architectural style of the new office building is inconsistent with the character of the surrounding buildings, and must be identified as such in an EIR. • LU 5.6.1 Compatible Development: The addition of a new office building in the immediate vicinity of the proposed Residential Village Project may result in cumulative impacts to land use policies that were not identified and analyzed in the Study and Errata. The common areas surrounding the proposed building are proposed to be designated as a residential community park, or otherwise serve as an amenity for such residential community, which is inconsistent with the addition of an office building to the Koll Center. These cumulative impacts must be addressed and analyzed in an EIR. • LU 6.15.1 Land Use Districts and Neighborhoods. This policy requires that business parks, commercial, and airport- serving districts and residential neighborhoods be integrated to ensure a quality environment and compatible land uses. No analysis is provided regarding the integration of the Project with the Residential Village Project and the land to be designated as a residential community park contiguous to the Project site Further, no integrated development plan has been submitted to the Planning Commission that even contemplates the Project. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 13 Additionally, Appendix C does not adequately analyze and discuss impacts to land use relating to inconsistency with the General Plan Circulation Element ( "CE "), and does not discuss cumulative impacts associated with the concurrent implementation and construction of the Newport Plaza Project and the Residential Village Project, as required by CEQA Guidelines Section 15165. Namely, the analysis of the following policies, inter alia, in Appendix C does not include an adequate analysis of impacts: • CE 2.1.1 Level of Service Standards: Cumulative impacts to levels of service were not analyzed for both construction periods and post - construction periods for the Project, the Newport Plaza Project, and the Residential Village Project. • CE 6.2.1 Alternative Transportation Modes: The conclusion in this section inexplicably states that the Project will encourage the use of alternative transportation. It then states that the Project site is not located near bus transit. This conclusion contradicts the analysis set forth Appendix C. Neither the Study nor the Errata provides evidence in support of the Project encouraging the use of alternative transportation. Public transportation in the vicinity of the Koll Center is limited, most commuters do not use alternative transportation to travel to the Koll Center, and therefore the Project is not consistent with this land use policy. • CE 7. 1.1 Required Parking: The analysis in this section does not discuss the cumulative impacts to available parking associated with the Residential Village Project, including the proposed residential community public park or other amenity contiguous to the Project site associated therewith. Additionally, the conclusion that the Project is consistent with this policy is reached in spite of the analysis set forth in this section that recognizes that the Project will violate the Koll Center Newport Community Plan requirement that there be one parking space for every 225 square feet. Although the decision making body has the discretion to allow one space for every 250 square feet, such a decision will still violate the parking requirement set forth in the Koll Center Newport Community Plan and this inconsistency must be analyzed in an EIR. PALMIERI, TYLER, WIENER, WILRELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 14 • CE 7.1.8 Parking Configuration: ation: The analysis in this section does not discuss the cumulative impacts to parking configuration and parking management programs associated with the Residential Village Project, including the proposed residential community public park contiguous to the Project Site associated therewith. Furthermore, although the Planning staff pointed out the benefit of shielding the parking area from street view that will result from the Project at the August 5th meeting, the construction of a 48 ft. tall building to shield a designated parking area is unnecessary to accomplish this goal. There are many less intrusive options that may accomplish shielding of parking without taking a designated parking area and constructing a 48 ft. tall building, especially considering that the parking lot is already partially shielded because it is located behind the lake and set back more than 100 ft. from the street. Appendix C also does not adequately analyze and discuss impacts to land use relating to inconsistency with the General Plan Noise Element ( "N "), and does not discuss cumulative impacts associated with the concurrent implementation and construction of the Newport Plaza Project and the Residential Village Project, as required by CEQA Guidelines Section 15165. Namely, the analysis of the following policies, inter alia, in Appendix C does not include an adequate analysis of impacts: • N 1.2 Noise Exposure Verification for New Development: Cumulative noise exposure impacts associated with the Newport Plaza Project and the Residential Village Project were not analyzed in Appendix C. • N 1.8 Significant Noise Impacts: Cumulative significant noise impacts associated with the Newport Plaza Project and the Residential Village Project were not analyzed in Appendix C. • N 4.3 New Commercial Developments: The Project was not designed to minimize noise impacts, as required for commercial developments that abut residentially designated properties, including the Residential Village Project. Analysis of this inconsistency with N 4.3 must be included in an EIR for the Project. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 15 • N 4.6 Maintenance or Construction Activities: This section does not include analysis of noise relating to maintenance or construction activities adjacent to the Residential Village Project's proposed residential areas. Analysis of this inconsistency with N 4.6 must be included in an EIR for the Project. V. ADDITIONAL CONSIDERATIONS THAT REQUIRE DISAPPROVAL OF THE PROJECT AND THE STUDY. This office has submitted two comment letters to the Planning Commission detailing the inadequacy of the Study to serve as the environmental document for the Project. In response, the City has prepared and subsequently amended the Errata, and conducted additional studies relating to biological resources, to attempt to cure what otherwise is an incomplete environmental analysis of the Project. These additional efforts by the City to cure the inadequacies of the Study are a good start, but fall far short of the environmental analysis requirements set forth in CEQA. Indeed, many of the conclusions set forth in the Study and the Errata are not supported by any analysis. CEQA requires an EIR to be prepared for a project whenever it can be fairly arizued on the basis of substantial evidence that the project may have a significant environmental impact. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d, 68, 75. [Emphasis added]. Although the Planning staff has conducted additional studies and provided additional analysis relating to certain environmental impacts, even if these additional studies and analysis are sufficient to meet the requirements of CEQA (we contend that they are not sufficient), they have still not addressed many of the inadequacies identified in the Initial Comment Letter and the Second Comment Letter, and these inadequacies therefore remain unresolved. VI. CONCLUSION. As documented in detail in the Initial Comment Letter, the Second Comment Letter, and this comment letter, there is a fair argument on the basis of substantial evidence that the Project will have significant environmental impacts. Accordingly, an EIR must be prepared for the Project. Additionally, the Project is part of a larger project PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Chairman Earl McDaniel Robert Hawkins August 19, 2010 Page 16 within the Koll Center, and therefore must be analyzed together with all three projects in the Koll Center, and cumulative impacts relating to these three projects must be identified and analyzed. Furthermore, the general plan amendments for the Project and the Newport Plaza Project must be considered a single amendment, and must be approved by the vote of the citizens of Newport Beach pursuant to Charter Section 423. Finally, regardless of environmental considerations, the Project is not consistent with the General Plan, including its land use policies, is inappropriate for the Koll Center, and must not be approved. Very truly yours, F. Julian Freeman III FJF cc: David Lepo, Planning Director Newport Beach City Clerk Meyer Properties Michael H. Leifer, Esq. Ryan M. Easter, Esq. EXHIBIT "A" qtr i +i �: °��i -t ..`y4 v �a.� �p ���y`{��,JAy •�he� � gt�.i r - ' � � t ��• 1 ,��� �� .wit 71Z, >,1 h 4 ER3i' JJ nv lk [ �af i h .i Ldp �(.4ysao a ++. "a �p� O� d��e !r4T"- \� °� \r'.&G EXHIBIT "B" BUILD -TO -SUIT OPPORTUNITY NEWPORT BEACH CALIFORNIA PROJECT USE: Commercial Office SITE AREA: .536 Acres ±23,383 Square Feet RENTABLE AREA: ±10,000 Square Feet NUMBER OF FLOORS: 2 PARKING: 42 Stalls ENTITLEMENTS: August 2010 OPPORTUNITY: Well located in the heart of Newport Beach's business district and the Koll Center. Close proximity to John Wayne Airport with easy access to 405, 55 and 73 Freeways. �mmmmmmmmm �.m ¥m it� }§ 2�Ali � \ \ § §( \ §] . i ` _ . )