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Home My WebLink About11 - Land Use Entitlements for the Residences at 4400 Von Karman Project (PA2020-061) - Correspondence - 4320 Von Karman AttorneyPALMIERI HENNESSEY� LEIFER, LLP January 26, 2021 VIA E-MAIL Mayor and Members of the City Council of the City of Newport Beach c/o City Clerk cityclerk@newportbeachca.gov Michael H. Leifer Direct Dial: (949) 851-7294 E-mail: mleifer@palmierilawgroup.com File No.: - Re: 1/26/2021 Agenda Item No. 11 Supplemental Objection to 4400 Von Karman Project - Ordinance Nos. 2021- 1 and 2021-2: Land Use Entitlement Applications for the Residences at 4400 Von Karman Project (PA2020-061) Dear Honorable Mayor and City Council Members: On behalf of Meyer Properties, we submit this letter as a supplement to the objection letter submitted on January 11, 2021. The City continues to treat the apartment project proponent with suspicious and improper deference in comparison to the long-standing stakeholders and property owners in Koll Center Newport and others in the City. The City/applicant continued the prior hearing, not to try to resolve the objections—but to concoct an 81 -page "Responses to Correspondence." If the project applicant/City needs 81 pages to respond to the objections, the environmental submission is inadequate. Moreover, the additional 81 -pages were not made publicly available until two -business days prior to the continued hearing date. The City's 81 -pager reads more like a biased, advocacy document rather than providing good faith and reasoned analysis in response to the legitimate objections raised. It does not actually respond to the valid CEQA objections raised by Meyer Properties and other objectors. Rather, the City resorts to mischaracterizing the objections and then advocated concerning the mischaracterized objections. The City/Project Proponent's attempt to add the 81 -pages at the 11th hour demonstrates inadequacy and is violative of the due process rights of objectors and the public. Meyer Properties objects to the fundamentally unfair process that the City is undertaking. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.41h 683,720- 723.) 2 Park Plaza, Suite 550, Irvine, CA 92614-2518 (949) 851-7388 1 www.palmierilawgroup.com PALMI ERI HENNESSEY LEIFER, LLP.. Mayor and Members of the City Council of the City of Newport Beach January 26, 2021 Page 2 Staff argues that "issues related to the Koll Center Newport CC&Rs are private civil issues and do not affect any potential decision of the City Council." (Staff Report for 1/26/21, p. 11-2.) Staff is wrong legally and from the perspective of appropriate governance. Staff acknowledges that there are CC&R's and that the City can somehow ignore them. The City has ignored them and is not permitted to do so. CC&Rs are real property interests. (See Southern California Edison Co. v. Bougerie (1973) 9 Cal.3d 169, 172-173.) The Koll Center Newport CC&Rs should be analyzed and considered as it relates to land use impacts to those property rights, among others, in the City's environmental analysis. The proposed Project does not comply with the neighboring area or the CC&Rs. Per the CC&Rs, "Building Site" shall mean that portion of a Development Area upon which a Professional and/or Business Office Building may be built. "Common Parking Areas" shall mean those portions of the various Development Areas upon which on -grade parking facilities together with access driveways have been or will be constructed for the common use and benefit of the Owners and Occupants of all the Development Areas and the Improvements constructed thereon. "Professional and Business Office Areas" shall mean those areas of the Property designated in the Development Standards for Professional and Business Office Uses." Staff ignores the objections raised concerning the City's proposed ordinance to amend Planned Community Development Plan #15. Meyer Properties has objected that the City and applicant are working in concert to amend the Planned Community Development as an attempted end -around the established rights of the neighboring properties. The action is improper. It interferes with Meyer Properties' (and the other owners') contractual and property rights under the CC&Rs. By its action, the City is damaging/condemning/inversely condemning Meyer Properties' property rights (and those of the other similarly situated owners). Whether by design or lack of analysis, Staff ignores that the City is apparently going to be an eventual owner within Koll Center Newport of a sidewalk that is grandiosely referred to as a park. The lack of analysis leaves the public, this objector and the project participants uncertain as to status vis a vis the CC&Rs. Prior to the January 12th City Council meeting, the applicant and its counsel submitted letters to the City. In various aspects they are inaccurate. That KCN A Management (Koll), Shopoff and Olen reached a deal at an earlier time does not apply to Meyer Properties or any other KCN property owner. The proposed Project does not comply with the CC&Rs. The proposed Project is projected to cause significant impacts to the adjacent property owners. There will be loss of views. The proposed Project will physically bifurcate Koll Center Newport. That bifurcation will negate much of the "common use and benefit" of on -grade parking facilities, access and driveways. There will be significant impacts from construction and the ultimate use PALMI ERI HENNESSEY LEIFER, LLP.. Mayor and Members of the City Council of the City of Newport Beach January 26, 2021 Page 3 of the proposed Project. There will be noise and vibration. Traffic will be impacted. The proposed "plan" lacks a competent or coherent construction management plan. CEQA objections raised are numerous and detailed in the January 11, 2021 letters to the City Council. The modeling used under the General Plan EIR is outdated and not consistent with current state law. Level of service was replaced with vehicle miles traveled. A proper analysis would yield a significantly different result. Moreover, there are more units being proposed at this site than the General Plan contemplated. Accordingly, there are more significant impacts that were not analyzed in the General Plan EIR. The Project does not faithfully implement the ICDP. The Project inhibits integration by bifurcating the property through the creation of a public street where an internal, private drive isle previously existed. Further, the sidewalk/park is not functionally designed, not readily accessible to or useable by the public. The limited temporary parking demonstrates that the sidewalk is not a real park. Based on the objections raised in our January 11, 2021 letter, our January 25, 2021 letter to the Parks, Beaches and Recreation Commission, as well as the foregoing, and incorporating any and all objections and comments to this Project made by others in opposition during the environmental process, Meyer Properties requests that the City Council deny certification of the Addendum. The City should not approve the various Project approvals. The City should direct Staff and the Applicant to conduct a further analysis and full EIR concerning the impacts from this Project. Ata minimum, the City Council should delay consideration of certification and the Project approvals for at least 75 days to allow review of the project documents, including the 11th -hour documents that the City/applicant claim are now including with the Addendum. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4t' at pp. 720- 723 [information made available only short time before hearing and staff's presentation was misleading, brief comments sufficient to put agency on notice].) cc: Rosalinh Ung, Principal Planner - rung@newportbeachca.gov