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.
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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
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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
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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
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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
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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
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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).
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• 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)