HomeMy WebLinkAboutC-4031 - MOU Regarding West Santa Ana Heights Reorganization Area Permit ProcessingE
MEMORANDUM OF UNDERSTANDING (MOU)
REGARDING
WEST SANTA ANA HEIGHTS REORGANIZATION AREA
PERMIT PROCESSING
THIS MEMORANDUM OF UNDERSTANDING REGARDING WEST SANTA ANA
HEIGHTS REORGANIZATION AREA • PERMIT PROCESSING ( "MOU "), dated
MA 1 , 2008 for purposes of identification, between the COUNTY OF ORANGE
( "County') and the CITY OF NEWPORT BEACH ( "City ") is based on following:
RECITALS
WHEREAS, the City has just annexed approximately 150 acres of unincorporated
land commonly known as the West Santa Ana Heights Reorganization to the City of
Newport Beach. Within this annexed area are three pending projects (the Fairway Villas
Project, Mesa Orchard Project, and Hernandez Condo Project, the 'Projects ") that have
been filed with and have obtained various entitlement approvals granted by the County.
The Projects are described in Exhibit A, attached hereto and incorporated herein by this
reference. The Projects are located on three separate parcels or sites described in Exhibit
B and depicted in Exhibit C1 -3, ( "Properties "). The Properties are owned by three
separate and independent parties or entities ( "Owners "). Before the annexation process
was complete, various land use entitlement applications were filed with the County, and
are at various stages of the entitlement process resulting in potential uncertainty as to
whether the City or County Land Use Regulations would apply to those pending Projects.
WHEREAS, certainty as to the timing of the application of the City Land Use
Regulations to an annexed site avoids public confusion, waste of public planning staff
resources and promotes economic investment. Therefore, the City and County desire to
set forth a reasonable, equitable and fair arrangement for the application of the City Land
Use Regulations to the Projects in the area annexed and for the continued processing of
the Projects.
WHEREAS, for the Fairway Villas Project and the Mesa Orchard Project, the City
will assume the provision of Land Use Authority for each of the Properties when the
corresponding Project which is the subject of the pending application has had its plans
checked and been issued a Building Permit by the County or the currently pending
application is withdrawn by the applicant or when the permits or Development Approvals
expire pursuant to the provisions of law including, but not limited to, the building or
administrative code as adopted by the County, whichever is sooner. For the Hernandez
Condo Project, the County will retain Land Use Authority up to and including issuance of
the final Certificate of Occupancy or the currently pending application is withdrawn by the
applicant or when the permits or Development Approvals expire pursuant to the provisions
of law including, but not limited to, the building or administrative code as adopted by the
County, whichever is sooner.
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WHEREAS, City and County are public entities possessing the common power to
review and approve applications for administrative and ministerial permits for
development, including subdivision maps, conditional use permits, grading permits and
building permits, and other approvals related to the development of real property. The
City and County also have the common power to accept dedications, impose exactions,
and to develop and maintain recreational and public facilities pursuant to provisions of
State and /or local law. Government Code Sections 51300, of seq., authorize a county to
contract with a city for the performance of municipal functions common to both agencies
by designated county officers and employees. This Agreement fully complies with all
State statutory and constitutional provisions related to the transfer of municipal functions
from a city to a county.
WHEREAS, this Agreement furthers the objectives of the Parties, including, but not
limited to the protection of property rights with regard to land use regulation for Projects
subject to County land use entitlement processes that have not been fully completed.
This Agreement also provides a vehicle for ensuring that all conditions to development are
satisfied, and that any subsequent proposed modification to an individual Development
Approval or Development Plan shall not impair or affect the right of the Owner of that
corresponding Property to develop the Project to the fullest extent permitted.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual
covenants and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the County and City agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific
meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized,
when used in the Agreement. The defined terms include the following:
1.1.1 "Agreement' means this MOU.
1.1.2 "City" means the City of Newport Beach.
1.1.3 " County° means the County of Orange, a political subdivision of the
State of California.
1.1.4 "Development' means the improvement of the Properties for the
purposes of completing the structures and improvements on the
Properties and for the uses contemplated by the Development
Approvals for the Projects as shown on the approved Development
Plans. The term "Development" includes any necessary tentative and
final subdivision map, condominium plan, a use of or conversion to a
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new use contemplated in a pending application for the Property,
grading, construction of any infrastructure and public facilities related
to a Project whether located within or outside the subject Property,
construction of on site buildings, or repairs or improvements to any
existing building or other structure, installation of landscaping and
parking facilities, and the occupancy of all buildings on a Property.
The term "Development" does not mean any planning, building or
grading activity after an individual Project is Fully Improved.
1.1.5 "Development Approvals" means all use and development permits,
subdivision maps, licenses, consents, rights and development
privileges, grading permits, building or other permits, agreements and
other actions that have been approved or granted by the County for
the Projects. The term "Development Approvals" also includes all
subsequent land use, grading and building approvals or actions that
are necessary for the subdivision, development and construction of
the Projects.. "Development Approvals" also includes any
modification or amendment of those actions before the assumption of
Land Use Authority by the City over a Property.
1.1.6 "Development Plans" means the contemplated uses, designs, building
elevations, architecture, plans, drawings, densities, building
specifications, parking and site coverage ratios, maps and other
aspects necessary for development of the Properties for the
described Project, as based on the County's Land Use Regulations
and as conditioned or contained in, and consistent, with the
Development Approvals.
1.1.7 "Fully Improved" means that all construction has been completed
pursuant to the approved Development Plans and certificates of use
and occupancy have been issued for the residential dwelling use and
the sale of condominium ownership(s) units pursuant to the
Development Approvals and Development Plan.
1.1.8 "Land Use Authority" means the power and authority to accept
applications for, process, review, approve, conditionally approve,
modify, amend and /or disapprove any and all land use entitlements,
building permits or the Development Approvals. "Land Use Authority"
also includes the authority and right to inspect any construction work
and improvement as normally conducted by a city to determine
compliance with any development approval, and to issue a final
clearance or certificate of occupancy.
1.1.9 "Land Use Regulations" means all applicable laws, statutes,
ordinances, resolutions, codes, rules, regulations and official policies
governing Development of the Projects, notices to, rights of and the
relocation of tenants, project phasing and the use of the Properties
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which provide authority for the Development Approvals, the approved
Development Plan, and the contemplated for the completion of the
Project. The term "Land Use Regulations" includes all applicable
laws, statutes, ordinances, resolutions, rules, regulations and official
policies governing or related to the permitted use of land, the density
or intensity of use, the needed parking, patio /open space and yard
requirements, the maximum height and size of proposed buildings,
the conversion of apartments to condominiums, the subdivision
requirements, all of the adopted Building Codes, the inclusion of
affordable housing units, reservation or dedication of land for public
purposes, exactions, and the design, improvement and construction
standards and specifications applicable to the Development of the
Properties.
1.1.10 "Owners" means the owners of the Projects, and where appropriate in
context, their respective successors in interest.
1.1.11 "Projects" means the proposed Development of the Properties listed
below, as described in Exhibit A and consistent with the Development
Approvals and approved Development Plans.
a. 20122 - 20162 Santa Ana Avenue (Fairway Villas
Project) owned by FV Santa Ana, LLC;
b. 1572 Orchard Drive (Mesa Orchard Project) owned by
Mesa Orchard Associates, LLC; and
C. 20362 Santa Ana Avenue (Hernandez Condo Project)
owned by Isabel and Julia Hernandez.
1.1.12 "Properties" means the real Properties described in Exhibit B and
shown on Exhibit C1 -3 to this Agreement.
1.1.13 "Upon Annexation" means the date upon which the West Santa Ana
Heights Reorganization or annexation to the City is final and effective,
in this situation January 1, 2008.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement.
Exhibit A Projects, existing Development Approvals, fee obligations
and legal descriptions.
Exhibit B Legal Description of each of the Properties.
Exhibit C1 -3 Map of the Properties.
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1.3 Construction. The word "include" or any form of the word "include" shall be
construed and interpreted to add the phrase "without limitation."
2. OBJECTIVES AND INTENT.
2.1 Objectives. The objectives of this Agreement are to:
2.1.1 Ensure that, following annexation of the Properties to the City, the
Properties are improved and developed in substantial compliance with
and to the full extent permitted by the Development Approvals and
any approved Development Plans for the Projects.
2.1.2 Ensure that development of the Properties proceeds in a manner that
is reasonable, equitable and fair to the Owners and preserves the
public benefits associated with the Development Approvals and any
approved Development Plans.
2.1.3 Effect a logical timing of the application of County and then City Land
Use Regulations to the pending Projects already filed and active with
the County, and to coordinate the transfer of Land Use Authority from
the County to the City following the annexation, with the City to
assume Land Use Authority over each Development when the
Fairway Villas and Mesa Orchard Projects Property receives a
Building Permit or the Hernandez Condo Project receives a final
Certificate of Occupancy or any currently pending application is
withdrawn by the applicant or when the permits or Development
Approvals expire pursuant to the provisions of law including, but not
limited to, the building or administrative code as adopted by the
county, whichever is sooner.
2.1.4 To provide a process for the transfer of documents necessary to City's
assumption of Land Use Authority.
2.2. Intent. The Parties, through this Agreement, intend that, for the term of this
Agreement:
2.2.1 Upon annexation of the Properties, the County shall have and
exercise the same power and control over the administration, approval and
implementation of Development Approvals and the County Land Use
Regulations over the Fairway Villas and Mesa Orchard Projects as the
County exercised before annexation, up and until the point at which the
County issues a Building Permit for each Property. The Parties also intend
that the City will assume Land Use Authority over the Fairway Villas and
Mesa Orchard Projects immediately after the County issues a Building
Permit or the currently pending application is withdrawn by the applicant or
when the permits or Development Approvals expire pursuant to the
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provisions of law including, but not limited to, the building or administrative
code as adopted by the County, whichever is sooner.
2.2.2. Upon annexation of the Properties, the County shall have and
exercise the same power and control over the administration, approval and
implementation of certain Development Approvals and the applicable Land
Use Regulations over the Hernandez Condo Project as the County exercised
before annexation, up and until the point at which the County issues a
Certificate of Occupancy for this Project. The Parties also intend that the
City will assume Land Use Authority over the Hernandez Condo Project
immediately after the County issues a final Certificate of Occupancy or the
currently pending application is withdrawn by the applicant or when the
permits or Development Approvals expire pursuant to the provisions of law
including, but not limited to, the building or administrative code as adopted
by the County, whichever is sooner.
3. AUTHORITY TRANSFERRED TO THE COUNTY
3.1 Transfer of Land Use Authority.
3.1.1 Transfer of Authority. The City transfers to the County, upon
Annexation, the Land Use Authority over the Properties and the
Projects and the County shall apply the County's Land Use
Regulations with respect to the Projects. This Land Use Authority
includes the review and approval of all plans and specifications for
development and the issuance of all grading and building permits.
For the Fairway Villas and Mesa Orchard Projects only, after grading
and building permits are issued, Land Use Authority will revert to the
City and all inspections of structures and improvements, and the
enforcement of ordinances relating to construction, grading, erosion
control and site cleanup and occupancy shall be performed by City.
Land Use Authority over the Hernandez Condo Project will revert to
the City immediately after the County issues a final Certificate of
Occupancy or the currently pending application is withdrawn by the
applicant or when the permits or Development Approvals expire
pursuant to the provisions of law including, but not limited to, the
building or administrative code as adopted by the county, whichever is
sooner and all inspections of structures and improvements, and the
enforcement of ordinances relating to construction, grading, erosion
control and site cleanup and occupancy shall be performed by
County.
3.1.2 Conditions. The County shall exercise Land Use Authority in
substantial compliance with: (i) the provisions of the Development
Approvals and any approved Development Plans; (ii) conditions
imposed by the County and any State or a local regulatory agency;
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and (iii) legally enforceable restrictions and limitations on development
of the Properties.
4.1 City Commitments. City, in exercising ar
shall fully comply with, and conform to, the
Approvals and any approved Development
action that could prevent, interfere with,
Properties to the full extent permitted by the
approved Development Plans.
4.2 Consideration.
iy authority over the Properties,
provisions of the Development
Plans. City shall not take any
or delay development of the
Development Approvals and any
4.2.1 Fees Associated with Development Processing. County shall be
entitled to charge, receive and retain all customary fees related to
work that County will perform. City shall be entitled to charge, receive
and retain all customary fees related to work that City will perform.
Any fees including, but not limited to, permit fees plan record
management fees collected by county on behalf of City shall be
transferred to the City within sixty (60) calendar days.
4.2.2 Exactions. City and County shall allocate exactions and other impact
fees as shown in Exhibit A.
4.3 County Officers. The County Executive Officer ( "CEO ") shall designate the
County officers, employees and contractors that are to perform the services
contemplated by, and exercise the authority transferred pursuant to, this
Agreement. The Parties contemplate that the CEO will designate the same
officers, employees and contractors that have, prior to the effective date of
this Agreement, been performing services or exercising powers related to
Land Use Authority.
COOPERATION.
5.1 Cooperation. City shall provide any assistance requested by County with
respect to the implementation and administration of the Development
Approvals, any approved Development Plans and this Agreement. City and
County shall cooperate with one another relative to any action necessary to
ensure that County retains the authority to perform the functions required by,
or to achieve the objectives of, this Agreement.
5.2 Monitoring. City and County shall also cooperate with one another to
facilitate City's right to monitor implementation of any approved Development
Plans and the conditions to the Development of the Properties.
5.3 Records. The County and City shall use their best efforts to transfer
property documents promptly so as to minimize delays in development of the
Projects.
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6. TERM.
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6.1 Term of Agreement. This Agreement shall continue in full force and effect
until each Project, which is the subject of this Agreement, and until the
actions described in section 3.1 of this Agreement have been completed by
the County or until the currently pending application is withdrawn or
abandoned by the applicant, whichever is sooner. In no event shall this
Agreement continue in effect a period that exceeds five (5) years from its
effective date, unless the conditions for expiration specified in Section 51302
of the Government Code are satisfied.
7. MISCELLANEOUS PROVISIONS.
7.1 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and all oral or written
representations, understandings or agreements are expressly stated in this
Agreement. No testimony or evidence of any such representations,
understandings, or covenants shall be admissible in any proceeding or any
kind or nature to interpret or determine the terms or conditions of this
Agreement.
7.2 Severability. If any term, provision, covenant, or condition of this
Agreement is ruled invalid, void, or unenforceable by a court of competent
jurisdiction, this Agreement shall nonetheless remain in full force and effect
as to all remaining terms, provisions, covenants, and conditions.
7.3 Interpretation and Governing Law. This Agreement and any related
dispute shall be governed and interpreted in accordance with the laws of the
State of California. This Agreement shall be construed according to its fair
language and common meaning to achieve the objectives and purposes of
the Parties. The rule of construction to the effect that ambiguities are to be
resolved against the drafting Party shall not be employed in interpreting this
Agreement since all Parties have been represented by counsel.
7.4. Indemnification. City shall _defend, indemnify, and hold harmless the
County and its officers, employees and agents with respect to any claim,
damage, loss, cause of action, lawsuit or proceeding that arises out of or is
in any way related to any act or omission by City or its officers, employees or
agents in the performance or non - performance of any duty or obligation
pursuant to this Agreement. County shall defend, indemnify, and hold
harmless the City and its officers, employees and agents with respect to any
claim, damage, loss, cause of action, lawsuit or proceeding that arises out of
or is in any way related to any act or omission by County or its officers,
employees, or agents in the performance or non - performance of any duty or
obligation pursuant to this Agreement.
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7.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of
this Agreement.
7.6 Singular and Plural. As used herein, the singular of any word includes the
plural.
7.7 Waiver. The failure of a Party to insist upon the strict performance of any of
the provisions of this Agreement by the other Party, or the failure of a Party
to exercise its rights upon the default of the other Party, shall not constitute a
waiver of that Party's right to demand and require, at any time, the other
Party's strict compliance with the terms of this Agreement.
7.8 Successors in Interest. The burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all successors in
interest to the Parties to this Agreement.
7.9 Specific Performance. The Parties acknowledge that monetary damages
would be inadequate to remedy any breach of this Agreement by either
Party. Accordingly, the Parties agree that any breach of this Agreement
shall entitle the non - breaching Party to file an action for speck performance
in a court of competent jurisdiction. In no event shall either Party be liable
for monetary damages in the event of a breach of this Agreement.
7.10 Counterparts. This Agreement may be executed by the Parties in
counterparts, which counterparts shall be construed together and have the
same affect as if all of the Parties had executed the same instrument.
7.11 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by any Party for the purpose of enforcing, construing,
or determining the validity of any provision of this Agreement shall be filed
and tried in the Superior Court of the County of Orange, State of California.
The Parties waive all provisions of law providing for the filing, removal or
change or venue to any other court.
7.12 Further Actions and Instruments. Each of the Parties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated
by this Agreement to achieve the objectives of this Agreement. Upon the
request of either Party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record
instruments and writing. The Parties shall also take any action as may be
reasonably necessary under the terms of this Agreement to carry out the
intent and to achieve the objectives of this Agreement.
7.13 Amendments in Writing /Cooperation. This Agreement may be amended
only by written consent of the Parties specifically approving the amendment.
The Parties shall cooperate in good faith with respect to any amendment
proposed in order to clarify that intent and application of this Agreement, and
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shall treat any such proposal on its own merits, and not as a basis for the
introduction of unrelated matters.
7.14 Authority to Execute. Any person or persons executing this Agreement on
behalf of the City and County warrants and represents that he /she has the
authority to execute this Agreement on behalf of his/her agency and to bind
that Agency to the performance of its obligations pursuant to this Agreement.
7.15 Notice. All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United
States mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to:
City of Newport Beach
Building Department
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to COUNTY shall be addressed
to:
County of Orange
Resources and Development Management Department
Director of Planning and Development Services
Post Office Box 4048
Santa Ana, California 92702 -4048
7.16 Effective Date. This Agreement shall become effective as of the date both
the City and County have signed this Agreement.
7.17 Third Party Beneficiaries. The City and County agree that there are no
third party beneficiaries to this Agreement. By executing this Agreement the
County and City do not intend to make the Owners or any other person or
entity a third party beneficiary to this Agreement.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
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COUNTY OF ORANGE:
By:
Chair, Board of Sup isors
APPROVED AS TO FORM:
Office of the County Counsel
Ori
Date: � ( 0 ® d
Signed and certified that a copy of this
document has been delivered to the Chair
of the Board Per Government Code Sec.
25103, Reso 79-1535
ATTEST:
By: cf/Ed j
Darlene J. Bloom,
Clerk of the Board of Supervisors
Orange County, California
CITY F NEWPORT BEACH APPROV D AS FOR FORM
By: BY
EdA
h, Ma or Robin L. Clauson, City Attorney
ATTEST:
By.
LaVonne Harkless, City Clerk
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Exhibit A
PROJECTS EXISTING DEVELOPMENT APPROVALS, FEE OBLIGATIONS AND LEGAL
DESCRIPTIONS
20122- 20162 Santa Ana Avenue (Fairway Villas). Project is to allow the conversion of 32
residential apartments in nine buildings now on the Property into 32 "For Sale" residential
condominiums, including the subdivision map and condominium plan, creation of common areas
and associated facilities, building improvements and repairs, CC &Rs and other governing
documents necessary for the sale of such 32 residential condominiums.
a. Existing County Entitlements. County Use Permit no. PA050063. Tentative Tract Map no.
16938 has been assigned to this Project.
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees have been waived because the 32 condominiums are considered equal to
the 32 apartments.
• Road fees shall be paid to the City.
• School fees shall be paid to the Newport-Mesa Unified School District.
2. 1572 Orchard Drive (Mesa Orchard Project) Project is a planned development to create 32
residential building sites on the 2.24 -acre Property after demolishing 33 apartment units.
a. Existing County Entitlements. County Use Permit no. PA050047 with Changed Plan
CP060014; Tentative Tract Map no. 16924; Final Map no. FM16924; Demolition Permit no.
DM070093 -105; Grading Permit no. GB060165; and Residential Tract Building Permits no.
RT070044 -46, RT070099 -127, PB070337 (plumbing), and LS070009 (landscape).
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees have been waived because the 32 homes are considered replacement
units for 33 demolished apartments.
• Road fees shall be paid to the County.
• School fees shall be paid to the Newport-Mesa Unified School District.
3. 20362 Santa Ana Avenue (Hernandez Condo Project). Project is a planned development to
create 19 new residential condominiums to replace a convalescent hospital in two buildings on
the Property.
a. Existing County Entitlements. County Use Permit no. PA070014; Site Plan Review;
Tentative Tract Map no. ; Demolition Permit no. DM070092; Grading Permit no.
GB070100; and Residential Tract Building Permits no. RT070176 -177, PB070416
(plumbing), and LS070020 (landscape).
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees shall be paid to the County.
• Road fees shall be paid to the County.
• School fees shall be paid to the Newport-Mesa Unified School District.
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Exhibit B
LEGAL DESCRIPTIONS
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EXHIBIT C1 -3
DEPICTIONS
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
C_ g031
(5$00D-2=)
Agenda Item No. 13
March 25, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff@city.newport- beach.ca.us
SUBJECT: Planning Memorandum of Understanding with the County of Orange —
Three Pending Projects in West Santa Ana Heights
ISSUE:
How should three pending development projects in West Santa Ana Heights be addressed in
light of the January 1, 2008 annexation of West Santa Ana Heights?
Authorize the Mayor to execute a Memorandum of Understanding (MOU) between the City and
the County of Orange in substantially similar form to the attached MOU regarding planning and
building services for three pending development projects in West Santa Ana Heights.
DISCUSSION:
Background: State law (the Cortese - Knox - Hertzberg Local Government Reorganization Act of
2000 [Government Code §56000 et seq.j) governs the way cities, counties, and special districts
address boundary issues like incorporations, annexations, detachments, changes in "spheres of
influence" ( "SOls "), mergers and consolidations, and combinations of these actions called
"reorganizations." Readers can access the Act at www.leginfo.ca.gov. Boundaries for school
districts are not set via this Act — generally, county departments of education follow the
California Education Code to set school district boundaries.
The Act describes the membership and role of the Local Agency Formation Commission
( LAFCO) in each county. Orange County LAFCO, a seven - member body that meets monthly in
Santa Ana, addresses local government boundary changes for our region (www.oclafco.ca.gov).
Newport Beach and Orange County LAFCO have followed the Act to annex the following
territory to Newport Beach in recent years:
• The Newport Coast (on January 1, 2002);
• Eastern Santa Ana Heights (on July 1, 2003);
• Bay Knolls (also on July 1, 2003).
• West Santa Ana Heights (January 1, 2008)
On February 14, 2006, the City Council adopted a Resolution of Application to direct staff to
work with LAFCO to annex West Santa Ana Heights. On July 11 `", 2007, the Orange County
• • City - County MOU for WSAH
March 25, 2008
Page 2
LAFCO approved the City's application to annex West SAH. The annexation took effect on
January 1, 2008.
At least three significant development projects were underway with the County of Orange's
planning department when the annexation occurred. These projects, which are consistent with
the general plan for the WSAH area, are as follows:
1 — Fairway Villas
Location: 20122 to 20162 Santa Ana Avenue
Project Description: Would convert 32 existing apartments to condominiums. This was
approved by the County of Orange's Planning Commission on December 5, 2007. It has
a Tentative Tract Map number assigned, but no permits issued.
2 — Mesa -Orchard (Waterpointe) Single Family Detached Homes
Location: 1572 Orchard Drive
Project Description: Would develop 32 detached single family homes on 2.24 acres by
demolishing 33 apartment units. This project has multiple approvals, including issued
Building Permits. A Final Map is not yet recorded.
3 — Hernandez Condominiums
Location: 20362 Santa Ana Avenue
Project Description: Would develop 19 condominiums by converting a convalescent
hospital that sits in two buildings on the site. Project has multiple approvals, including a
Use Permit/Site Plan, a demolition permit, and residential tract building permits. This
Project is nearing completion.
The project proponents would like to continue processing these projects with the County until
such time as certificates of occupancy are issued for the projects. At that time, all governance
services, including planning and building, would be transferred over to the City as long as the
plans for these projects are transferred as well.
The process sought is similar to a process that the City and County agreed to in 2001 when the
Newport Coast was about to be annexed. A detailed Cooperative Agreement at that time
directed that Newport Coast properties continue being processed through the County until such
time that a "Planning Area" was built -out and that the building plans for the same Planning Area
were transferred to the City.
The City's Building Director, Jay Elbettar, believes that a more appropriate process would be to
create an agreement that provides that the City take over jurisdiction on each project when each
project gets its Building Permits issued. In this manner, the City can be assured that the
projects are built to specifications and permits. Mr. Elbettar has seen enough examples in East
Santa Ana Heights and in the Newport Coast whereby County inspectors did not appropriately
inspect properties that he believes, with the remainder of staff concurring, that this is the way to
proceed with two of the three properties (except for the Hernandez Condos, which are nearing
completion — this project would stay with the County until final occupancy).
The draft MOU is presented as Attachment A to this Staff Report. A letter sent to the City in
early January 2008 from County Planning Director Tim Neely appropriately describes the
Projects and includes graphics.
• City -County MOU for WSAH
March 25, 2006
Page 3
Environmental Review: The Council's action to approve the MOU is statutorially exempt under
CEQA ( "Ministerial Projects" — CEQA Guidelines Section 15268).
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in
advance of the public meeting at which the City Council considers the item).
Submitted by:
Dave Kiff
Assistant City Manager
Attachments: A — Draft MOU
B — Letter of January 2, 2008 from Tim Neely (County of Orange)
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MEMORANDUM OF UNDERSTANDING (MOU)
REGARDING
WEST SANTA ANA HEIGHTS REORGANIZATION AREA
PERMIT PROCESSING
THIS MEMORANDUM OF UNDERSTANDING REGARDING WEST SANTA ANA
HEIGHTS REORGANIZATION AREA PERMIT PROCESSING ( "MOU "), dated
, 2008 for purposes of identification, between the COUNTY OF ORANGE
( "County ") and the CITY OF NEWPORT BEACH ( "City") is based on following:
RECITALS
WHEREAS, the City has just annexed approximately 150 acres of unincorporated
land commonly known as the West Santa Ana Heights Reorganization to the City of
Newport Beach. Within this annexed area are three pending projects that have been filed
with and have various entitlement approvals granted by the County (being the Fairway
Villas Project, Mesa Orchard Project, and Hernadez Condo Project) and such are
described in Exhibit A, attached hereto and incorporated herein ( "Projects "). The Projects
are located on three separate parcels or sites described in Exhibit B and depicted in
Exhibit C1 -3, ( "Properties "). The Properties are owned by three separate and independent
parties or entities ( "Owners "). Before the annexation process was complete, various land
use entitlement applications were filed with the County, thereby creating an uncertainty as
to whether the City or County Land Use Regulations apply to those pending Projects.
WHEREAS, an unanticipated change in Land Use Regulations may ruin reasonable
expectations, and undermine the existing economic factors that had prompted owners to
acquire properties with a desire to upgrade and improve such, thereby causing undue
hardships and leading to unfinished projects and blighting conditions. Certainty as to the
timing of the application of the City Land Use Regulations to an annexed site avoids public
confusion and a waste of public planning staff resources. An equitable and fair setting of
the date or timing for the application of the City Land Use Regulations to pending County
land use entitlement processes promotes economic investment and avoids blighting
conditions. Therefore, the City and County desire to set forth a reasonable, equitable and
fair arrangement for the application of the City Land Use Regulations to the Projects in the
area annexed and for the continued processing of the Projects.
WHEREAS, for the Fairway Villas Project and the Mesa Orchard Project, the City
will assume the provision of Land Use Authority for each of the Properties when the
corresponding Project which is the subject of the pending application has had its plans
checked and been issued a Building Permit by the County or the currently pending
application is withdrawn or abandoned by the applicant, whichever is sooner. For the
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Hernandez Condo Project, the County will retain Land Use Authority up to and including
issuance of the final Certificate of Occupancy.
WHEREAS, City and County are public entities possessing the common power to
review and approve applications for administrative and ministerial permits for
development, including subdivision maps, conditional use permits, grading permits and
building permits, and other approvals related to the development of real property. The
City and County also have the common power to accept dedications, impose exactions,
and to develop and maintain recreational and public facilities pursuant to provisions of
State and /or local law. Government Code Sections 51300, et seq., authorize a county to
contract with a city for the performance of municipal functions common to both agencies
by designated county officers and employees. This Agreement fully complies with all
State statutory and constitutional provisions related to the transfer of municipal functions
from a city to a county.
WHEREAS, this Agreement achieves the objectives of the Parties, such as the
protection of property rights with regard to land use regulation for Projects pending in
County land use entitlement processes. This Agreement also provides a vehicle for
ensuring that all conditions to development are satisfied, and that any subsequent
proposed modification to an individual Development Approval or Development Plan shall
not impair or affect the right of the Owner of that corresponding Property to develop the
Project to the fullest extent permitted .
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual
covenants and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the County and City agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific
meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized,
when used in the Agreement. The defined terms include the following:
1.1.1 "Agreement" means this MOU.
1.1.2 "City' means the City of Newport Beach.
1.1.3 "Owners" means those owners of, and where appropriate in context,
their respective successors in interest to, the three listed Properties as
follows:
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a. 20122 - 20162 Santa Ana Avenue (Fairway Villas
Project) owned by FV Santa Ana, LLC;
b. 1572 Orchard Drive (Mesa Orchard Project) owned by
Mesa Orchard Associates, LLC; and
C. 20362 Santa Ana Avenue (Hernadez Condo Project)
owned by Isabel and Julia Hernandez.
1.1.4 "County' means the County of Orange, a political subdivision of the
State of California.
1.1.5 "Development" whether or not capitalized means the improvement of
the Properties for the purposes of completing the structures and
improvements on the Properties and for the uses contemplated by the
Development Approvals for the Projects. The term "Development"
includes any necessary tentative and final subdivision map,
condominium plan, a use of or conversion to a new use contemplated
in a pending application for the Property, grading, construction of any
infrastructure and public facilities related to a Project whether located
within or outside the subject Property, construction of on site
buildings, or repairs or improvements to any existing building or other
structure, installation of landscaping and parking facilities, and the
occupancy of all buildings on a Property. The term "Development"
does not mean any planning, building or grading activity after an
individual Project is Fully Improved.
1.1.6 "Development Approvals" means all use and development permits,
subdivision maps, licenses, consents, rights and development
privileges, grading permits, building or other permits, agreements and
other actions that have been approved or granted by the County for
the Projects. The term "Development Approvals" also includes all
subsequent land use, grading and building approvals or actions that
are necessary for the subdivision, development and construction of
the Projects before the assumption of Land Use Authority by the City
over the Properties, which is to occur for the corresponding specified
Property after the individual Project on that Property is Fully Improved.
"Development Approvals" also includes any modification or
amendment of those actions before the assumption of Land Use
Authority by the City over a Property.
1.1.7 "Development Plans" means the contemplated uses, designs, building
elevations, architecture, plans, drawings, densities, building
specifications, parking and site coverage ratios, maps and other
aspects necessary for Development of the Properties for the
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described Project, as based on the County's Land Use Regulations
and as conditioned or contained in, and consistent, with the
Development Approvals.
1.1.8 "Fully Improved" means that the County, on behalf of the City, has
issued certificates of use and occupancy (or similar evidence that all
work in the structures have received the final or all necessary
inspections and fully comply with all building codes and other laws
and there is no further condition to occupancy) for the residential
dwelling use and the sale of condominium ownership(s) units
pursuant to the Development Approvals and Development Plan.
1.1.9 "Land Use Authority" means the power and authority to accept
applications for, process, review, approve, conditionally approve,
modify, amend and /or disapprove any and all land use entitlements,
building permits or the Development Approvals. "Land Use Authority"
also includes the authority and right to inspect any construction work
and improvement as normally conducted by a city to determine
compliance with any development approval, and to issue a final
clearance or certificate of occupancy.
1.1.10 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development, notices
to, rights of and the relocation of tenants, project phasing and the use
of the Properties pursuant to the Development Approvals, the
approved Development Plan, and as contemplated for the completion
of the Project. The term "Land Use Regulations" includes ordinances,
resolutions, rules, regulations and official policies governing or related
to the permitted use of land, the density or intensity of use, the
needed parking, patio /open space and yard requirements, the
maximum height and size of proposed buildings, the conversion of
apartments to condominiums, the subdivision requirements, all of the
adopted Building Codes, the inclusion of affordable housing units,
reservation or dedication of land for public purposes, exactions, and
the design, improvement and construction standards and
specifications applicable to the Development of the Properties.
1.1.11 "Projects" means the full Development of each Property as described
in Exhibit A and consistent with the Development Approvals and
approved Development Plans.
1.1.12 "Properties" means the real Properties described in Exhibit A and
shown on Exhibit B to this Agreement.
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1.1.13 "Upon Annexation" means the date upon which the West Santa Ana
Heights Reorganization or annexation to the City is final and effective,
in this situation January 1, 2008.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement:
Exhibit A — Projects, existing Development Approvals, and Legal
Description of the Properties.
Exhibit B — Map of the Properties.
1.3 Construction. The word "include" or any form of the word "include" shall be
construed and interpreted to add the phrase "without limitation."
2. OBJECTIVES AND INTENT
2.1 Objectives. The objectives of this Agreement are to:
2.1.1 Ensure that, following annexation of the Properties to the City, the
Properties are improved and developed in substantial compliance with
and to the full extent permitted by the Development Approvals and
any approved Development Plans for the Projects.
2.1.2 Ensure that development of the Properties proceeds in a manner that
is reasonable, equitable and fair to the Owners and preserves the
public benefits associated with the Development Approvals and any
approved Development Plans.
2.1.3 Effect a logical timing of the application of County and then City Land
Use Regulations to the pending Projects already filed and active with
the County, and to coordinate the transfer of Land Use Authority from
the County to the City due to the annexation, with the City to assume
Land Use Authority over each Property when the Project on that
Property either receives a Building Permit (with regard to the Fairway
Villas and Mesa Mesa Orchard Projects), receives final occupancy
(with regard to the Hernandez Condo Project), or any currently
pending application is withdrawn or abandoned by the applicant,
whichever is sooner.
2.1.4 To provide a process for the transfer of documents necessary to City's
assumption of Land Use Authority.
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2.2. Intent. The Parties, through this Agreement, intend that, for the limited term
of this Agreement:
2.2.1 The County have and exercise after the annexation of the Properties
the same power and control over the administration, approval and
implementation of certain Development Approvals and the County
Land Use Regulations over the Fairway Villas and Mesa Mesa
Orchard Projects as the County exercised before annexation, up and
until the point at which the County issues a Building Permit for each
property. The Parties also intend that the City will assume Land Use
Authority over the Fairway Villas and Mesa Mesa Orchard Projects
immediately after the County issues a Building Permit or the currently
pending application is withdrawn or abandoned by the applicant,
whichever is sooner.
2.2.2. The County have and exercise after the annexation of the Properties
the same power and control over the administration, approval and
implementation of certain Development Approvals and the County
Land Use Regulations over the Hernandez Condo Project as the
County exercised before annexation, up and until the point at which
the County issues a Certificate of Occupancy for this Project. The
Parties also intend that the City will assume Land Use Authority over
the Hernandez Condo Project immediately after the County issues a
Building Permit or the currently pending application is withdrawn or
abandoned by the applicant, whichever is sooner.
2.2.3. The Parties also intend that the County shall exercise Land Use
Authority and other authority in substantial conformance with the
Development Approvals and the County's Land Use Regulations as in
effect as of the Effective Date of this Agreement. This Agreement
shall be administered, implemented, construed and interpreted in a
manner that is consistent with the Development Approvals, any
approved Development Plans and the "Objectives" and "Intent'
provisions of this Agreement (Sections 2.1 and 2.2).
3. AUTHORITY TRANSFERRED TO THE COUNTY
3.1 Transfer of Land Use Authority.
3.1.1 Transfer of Authority. The City transfers to the County, Upon
Annexation, the Land Use Authority over the Properties and the
Projects and the County shall apply the County's Land Use
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Regulations with respect to the Projects. This Land Use Authority
includes the review and approval of all plans and specifications for
development and the issuance of all grading and building permits.
For the Fairway Villas and Mesa Orchard Projects only, after grading
and building permits are issued, all inspections of structures and
improvements, and the enforcement of ordinances relating to
construction, grading, erosion control and site cleanup and occupancy
shall be performed by City.
3.1.2 Conditions. The County shall exercise Land Use Authority in
substantial compliance with: (i) the provisions of the Development
Approvals and any approved Development Plans; (ii) conditions
imposed by the County and any State or a local regulatory agency;
and (iii) legally enforceable restrictions and limitations on development
of the Properties.
4. CITY COMMITMENTS, CONSIDERATION.
4.1 City Commitments. City, in exercising any authority over the Properties,
shall fully comply with, and conform to, the provisions of the Development
Approvals and any approved Development Plans. City shall not take any
action that could prevent, interfere with, or delay development of the
Properties to the full extent permitted by the Development Approvals and any
approved Development Plans.
4.2 Consideration.
4.2.1 Fees Associated with Development Processing. County shall be
entitled to charge, receive and retain all customary fees related to
work that County will perform. City shall be entitled to charge, receive
and retain all customary fees related to work that City will perform..
4.2.2 Exactions. City and County shall allocate exactions and other impact
fees as shown in Exhibit A.
4.3 County Officers. The County Executive Officer ( "CEO ") shall designate the
County officers, employees and contractors that are to perform the services
contemplated by, and exercise the authority transferred pursuant to, this
Agreement. The Parties contemplate that the CEO will designate the same
officers, employees and contractors that have, prior to the effective date of
this Agreement, been performing services or exercising powers related to
Land Use Authority.
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5. COOPERATION.
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5.1 Cooperation. City shall provide any assistance requested by County with
respect to the implementation and administration of the Development
Approvals, any approved Development Plans and this Agreement. City and
County shall cooperate with one another relative to any action necessary to
ensure that County retains the authority to perform the functions required by,
or to achieve the objectives of, this Agreement.
5.2 Monitoring. City and County shall also cooperate with one another to
facilitate City's right to monitor implementation of any approved Development
Plans and the conditions to the Development of the Properties.
5.3 Records.The County and City shall use their best efforts to transfer property
documents promptly so as to minimize delays in development of the
Projects.
6. MISCELLANEOUS PROVISIONS
6.1 Term of Agreement. This Agreement shall continue in full force and effect
until each Project, which is the subject of the pending application, has been
issued its Building Permit by the County or until the currently pending
application is withdrawn or abandoned by the applicant, whichever is sooner.
In no event shall this Agreement continue more than a period of five (5)
years, unless the conditions for expiration specified in Section 51302 of the
Government Code are satisfied.
6.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and all oral or written
representations, understandings or agreements are expressly stated in this
Agreement. No testimony or evidence of any such representations,
understandings, or covenants shall be admissible in any proceeding or any
kind or nature to interpret or determine the terms or conditions of this
Agreement.
6.3 Severability, If any term, provision, covenant, or condition of this
Agreement is ruled invalid, void, or unenforceable by a court of competent
jurisdiction, this Agreement shall nonetheless remain in full force and effect
as to all remaining terms, provisions, covenants, and conditions.
6.4 Interpretation and Governing Law. This Agreement and any related
dispute shall be governed and interpreted in accordance with the laws of the
State of California. This Agreement shall be construed according to its fair
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language and common meaning to achieve the objectives and purposes of
the Parties. The rule of construction to the effect that ambiguities are to be
resolved against the drafting Party shall not be employed in interpreting this
Agreement since all Parties have been represented by counsel.
6.5. Indemnification. City shall defend, indemnify, and hold harmless the
County and its officers, employees and agents with respect to any claim,
damage, loss, cause of action, lawsuit or proceeding that arises out of or is
in any way related to any act or omission by City or its officers, employees or
agents in the performance or non - performance of any duty or obligation
pursuant to this Agreement. County shall defend, indemnify, and hold
harmless the City and its officers, employees and agents with respect to any
claim, damage, loss, cause of action, lawsuit or proceeding that arises out of
or is in any way related to any act or omission by County or its officers,
employees, or agents in the performance or non - performance of any duty or
obligation pursuant to this Agreement.
6.6 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of
this Agreement.
6.7 Singular and Plural. As used herein, the singular of any word includes the
plural.
6.8 Waiver. The failure of a Party to insist upon the strict performance of any of
the provisions of this Agreement by the other Party, or the failure of a Party
to exercise its rights upon the default of the other Party, shall not constitute a
waiver of that Party's right to demand and require, at any time, the other
Party's strict compliance with the terms of this Agreement.
6.9 Successors in Interest. The burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all successors in
interest to the Parties to this Agreement.
6.10 Specific Performance. The Parties acknowledge that monetary damages
would be inadequate to remedy any breach of this Agreement by either
Party. Accordingly, the Parties agree that any breach of this Agreement
shall entitle the non - breaching Party to file an action for specific performance
in a court of competent jurisdiction. In no event shall either Party be liable
for monetary damages in the event of a breach of this Agreement.
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6.11 Counterparts. This Agreement may be executed by the Parties in
counterparts, which counterparts shall be construed together and have the
same affect as if all of the Parties had executed the same instrument.
6.12 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by any Party for the purpose of enforcing, construing,
or determining the validity of any provision of this Agreement shall be filed
and tried in the Superior Court of the County of Orange, State of California.
The Parties waive all provisions of law providing for the filing, removal or
change or venue to any other court.
6.13 Further Actions and Instruments. Each of the Parties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated
by this Agreement to achieve the objectives of this Agreement. Upon the
request of either Party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record
instruments and writing. The Parties shall also take any action as may be
reasonably necessary under the terms of this Agreement to carry out the
intent and to achieve the objectives of this Agreement.
6.14 Amendments in Writing /Cooperation. This Agreement may be amended
only by written consent of the Parties specifically approving the amendment.
The Parties shall cooperate in good faith with respect to any amendment
proposed in order to clarify that intent and application of this Agreement, and
shall treat any such proposal on its own merits, and not as a basis for the
introduction of unrelated matters.
6.15 Authority to Execute. Any person or persons executing this Agreement on
behalf of the City and County warrants and represents that he /she has the
authority to execute this Agreement on behalf of his /her agency and to bind
that Agency to the performance of its obligations pursuant to this Agreement.
6.16 Notice. All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United
States mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to:
City of Newport Beach
Building Department
3300 Newport Boulevard
PO Box 1768
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Newport Beach, California 92658 -8915
All notices, demands, requests or approvals to COUNTY shall be addressed
to:
County of Orange
Resources and Development Management Department
Director of Planning and Development Services
Post Office Box 4048
Santa Ana, California 92702 -4048
6.17 Effective Date. This Agreement shall become effective as of the date both
the City and County have signed this Agreement.
6.18 Third Party Beneficiaries. The City and County agree that there are no
third party beneficiaries to this Agreement. By executing this Agreement the
County and City do not intend to make the Owners or any other person or
entity a third party beneficiary to this Agreement.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
COUNTY:
By:
Chair, Board of Supervisors
County of Orange, State of California
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE BOARD CHAIR
(0A
Clerk of the Board of Supervisors
APPROVED AS TO FORM:
an
County Counsel
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Deputy
CITY:
By:
Mayor of the City of Newport Beach
ATTEST:
is
By:
City Clerk of the City of Newport Beach
APPROVED AS TO FORM:
By:
City Attorney for the City of Newport Beach
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Exhibit A
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PROJECTS, EXISTING DEVELOPMENT APPROVALS, FEE OBLIGATIONS AND
LEGAL DESCRIPTIONS
1. 20162 Santa Ana Avenue (Fairway Villas). Project is to allow the conversion of
32 residential apartments in nine buildings now on the Property into 32 "For Sale"
residential condominiums, including the subdivision map and condominium plan,
creation of common areas and associated facilities, building improvements and
repairs, CC &Rs and other governing documents necessary for the sale of such 32
residential condominiums.
a. Existing County Entitlements. County Use Permit no. PA050063.
Tentative Tract Map no. 16938 has been assigned to this Project.
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees have been waived because the 32 condominiums are
considered equal to the 32 apartments.
• Road fees shall be paid to the City.
• School fees shall be paid to the Newport-Mesa Unified School District.
2. 1572 Orchard Drive (Mesa Orchard Project) Project is a planned development to
create 32 residential building sites on the 2.24 -acre Property after demolishing 33
apartment units.
a. Existing County Entitlements. County Use Permit no. PA050047 with
Changed Plan CP060014; Tentative Tract Map no. 16924; Final Map no.
FM16924; Demolition Permit no. DM070093 -105; Grading Permit no.
GB060165; and Residential Tract Building Permits no. RT070044 -46,
RT070099 -127, PB070337 (plumbing), and LS070009 (landscape).
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees have been waived because the 32 homes are considered
replacement units for 33 demolished apartments.
• Road fees shall be paid to the County.
• School fees shall be paid to the Newport-Mesa Unified School District.
3. 20362 Santa Ana Avenue (Hernadez Condo Project). Project is a planned
development to create 19 new residential condominiums to replace a convalescent
hospital in two buildings on the Property.
a. Existing County Entitlements. County Use Permit no. PA070014; Site
Plan Review; Tentative Tract Map no. ; Demolition Permit no.
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DM070092; Grading Permit no. GB070100; and Residential Tract Building
Permits no. RT070176 -177, PB070416 (plumbing), and LS070020
(landscape).
b. Legal Description of this Property.
c. Exactions Charged or to be Charged as a Result of this Project:
• Local park fees shall be paid to the County.
• Road fees shall be paid to the County.
• School fees shall be paid to the Newport-Mesa Unified School District.
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Exhibit B
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PROPERTIES AND PROJECTS SITE MAP
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COUNTY OF ORANGE
RESOURCES & DEVELOPMENT MANAGEMENT DEPARTMENT
January 2, 2008
David Kiff, Assistant City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92633
Subject: /West Santa Ana Heights Annexation Permitting Authority
Dear "Iff, &"--
Brywn Speegle, Director
300 N- Flow 6::>tivet
Santa Ana CA
P.O Bur 1048
Santa Ana, CA 92702 -4048
Telephone: (714) 834 -2300
Fax: (714) 834 -5188
Effective January 1, 2008, the City of Newport Beach annexed the area known as West Santa
Ana Heights. By such action, the City has assumed jurisdiction for all discretionary and
ministerial land use decisions for private development projects located within the annexed area.
This jurisdiction includes the authority to issue grading permits, building permits, subdivision
maps and to determine compliance with all outstanding permit conditions -of- approval. As we
have discussed, there are three projects located within the annexation area that are in the
middle of the entitlement process. Because these projects have already received discretionary
permits through the County in accordance with County standards and procedures, it may be
difficult for the City to now assume jurisdiction for the remaining discretionary actions and
ministerial permits needed to complete the projects.
The following is a summary list of these pending projects. More detailed information about the
projects is attached.
Project
Fairway Villas
Mesa Orchard
Hernadez Condos
Current Status of Proiects
Description
32 unit condo conversion
32 detached single family
19 condominium units
Address
20122 - 20162 Santa Ana Ave.
1572 Orchard Dr.
20362 Santa Ana Ave.
The Fairway Villas project has been granted a use permit authorizing the conversion to
condominium status. A tentative tract number (16938) has been issued by the County Surveyor
for this project as a placeholder. However, this tract map has not yet been filed with the County
for formal consideration and would require a discretionary action. The use permit authorizing
the condo conversion has a number of conditions -of- approval that need to be satisfied and
approved administratively. No building permits have been filed for or issued.
The Mesa Orchard project received approval of both a use permit to allow construction of a
planned development as well Tentative Tract 16924 to create 32 building sites. Although the
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Annexation
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tentative tract map has been approved by the County, it has not yet been recorded.
Furthermore, a number of conditions -of- approval must still be satisfied prior to recordation of the
map. Among those conditions are certain bonding and easement dedication requirements. A
precise grading permit has been issued for this project but no inspections have been performed.
Residential building permit applications have been filed for plan check but no building permits
have been issued.
The Hernadez Condo project has received a use permit / site plan approval for the
establishment of the condominium project. Building and grading permits have been issued and
construction has commenced. The only actions needed to complete this project are
intermediate and final inspections.
Conclusions
To minimize confusion, it may be in the best interest of all parties for the County to continue
processing all further permits and approvals needed to complete these projects. Since no
additional discretionary actions are needed to complete the Hernandez project, and the County
is already administering open building and grading permits, it is recommended that the City
authorize the County to complete its inspections of these permits.
With respect to the other projects that still require discretionary actions, County Counsel has
advised that a Memorandum of Understanding between the City and the County would be
necessary to provide the County with the authority to see these projects through to completion
on behalf of the City. Such an agreement could be a simplified version of the Newport Coast
processing agreement now in effect between the City and County. The agreement should
stipulate that the County is to be granted authority to complete all actions and permits for these
projects up to and including issuance of certificates of use and occupancy. At that point, the
County authority to act on behalf of the City would terminate and all files and records would be
transferred to the City. The City would be responsible for any code enforcement matters once
the County permits have been finaled. The agreement should also clarify that these projects
and their associated public improvements are to be constructed in accordance with County
standards unless otherwise stipulated.
If you agree with the strategy outlined for the Hernandez project, please provide a written
confirmation for our records and we will continue with our inspection process. With respect to
an MOU for the other projects, please let me know if you would like to proceed with such an
agreement. If you have questions regarding the County's position or would like assistance in
preparing an MOU, please call me at (714) 834 -2552.
Sincerely,
Tim Neely, Dir o
Planning and lopment Services
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cc: Supervisor Moorlach
Tom Mauk, CEO
Alisa Drakodaidis, Deputy CEO
Nick Chrisos, County Counsel
Bryan Speegle, Director, RDMD
Fairway Villas Santa Ana, LLC
Mesa Orchard Associates, LLC
Isabel and Julia Hernandez
Homer Bludau, NB City Manager
David Lepo, NB Planning Director
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FAIRWAY VILLAS PROJECT
Address: 20122 and 20162 Santa Ana Avenue
County Permits:
Use Permit (PA050063) to convert an existing 32 unit apartment community to
condominium status was approved by the Orange County Planning Commission
on December 5, 2007.
Tentative Tract # 16938 has been assigned to this project by the Surveyor, but
the map has not yet been filed with the County for review by the Subdivision
Committee, nor has it been filed for "First Check" with the Surveyor.
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MESA ORCHARD PROJECT
(AKA WATERPOINTE DEVELOPMENT PROJECT)
1572 Orchard Dr.
Site: 97,600 sq feet (2.24 acres)
Owner. Mesa Orchard Associates LLC
County Permits:
Use Permit (PA050047) for a Planned Development Overlay of 32 single family
dwellings in the RMF District of the Santa Ana Heights Specific Plan was denied
by the Orange County Planning Commission on February 9, 2006. The Planning
Commission denial was appealed by the applicant on February 21, 2006 and the
project was subsequently approved by the Orange County Board of Supervisors
on April 25, 2006.
Changed Plan (CP060014) to (PA050047) involving changes to plans and lot
layout was approved administratively on May 26, 2006.
(Note that an additional Changed Plan is now required for changes to plan
elevations. The current applicant, Garrett Calacci, was notified of this
requirement on September 14, 2007, and a CP has not yet been submitted.)
Tentative tract 16924 was filed on June 14, 2006 and approved by the County
Subdivision Committee on July 25, 2006.
Demolition Permits (DM070093 -105) to remove the existing apartment buildings
on the site were issued September 4, 2007. These permits have not yet been
closed and finaled as of December 31, 2007.
Residential Tract building permits (RT070044 -46) for three homes on the site
were filed on April 24, 2007.
Residential Tract building permits (RT070099 -127) for the remaining 29 homes
on the site were filed June 5, 2007.
Landscape Plan (LS070009) was approved August 21, 2007.
Final Map (FM16924) was submitted for recordation on November 27, 2007.
Plumbing Permit (PB070337) for a private sewer system for the 32 SFDs was
filed on 4/18/07
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MESA ORCHARD PROJECT (continued)
(AKA WATERPOINTE DEVELOPMENT PROJECT)
Grading Plan (GB060165) for grading the entire site was issued November 28,
2007.
Outstanding Issues
The Final Map (FM 16924) has not been recorded and there are dedications to
the County of Orange for an ingress and egress easement over Lot A (the private
street through the development) for emergency and security vehicle purposes,
and an easement dedicated to the County of Orange Sanitary District for sewer
and trash collection purposes. These easements should now be offered to and
accepted by the City.
An avigation easement has been added to the map and the dedication of this
easement is proposed to go to the County of Orange. Can or should the County
of Orange accept this easement?
There are easement dedications to the Irvine Ranch Water District that should
not be an issue.
Local Park fees will be waived by the County since the 32 new homes are
considered "replacement units" for the 33 demolished apartments as outlined in
County Ordinance 3910 that amended the Local Park Code to exempt
preexisting building sites from payment of local park fees when a dwelling unit is
replaced.
Road fees are to be paid to the County.
School fees are to be paid to the school district and the developer must then
supply the County with a Certificate of Compliance.
An additional Changed Plan to (PA050047) is required to document the proposed
changes to the plan type elevations shown in the Master Plan building permit
submittals (RT070044 -46). The Changed Plan was requested of the applicant in
September but has not been submitted.
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HERNANDEZ CONDOMINIUMS PROJECT
Address: 20362 Santa Ana Avenue
County Permits:
Use Permit/Site Plan (PA070014) for 19 condominiums units in two buildings to
replace a convalescent hospital was approved by the Orange County Zoning
Administrator on June 14, 2007.
Demolition Permit (DM070092) to demolish the convalescent hospital was issued
August 21, 2007 and was closed / finaled on December 17, 2007.
Grading Permit (GB070100) was issued November 8, 2007.
Plumbing Permit (PB070416) to construct a private sanitary sewer for the 19
condo units was issued November 19, 2007.
Landscape Plan (LS070020) was approved November 17, 2007.
Residential Tract building permits (RT070176 -177) for the two condominium
buildings were issued on December 27, 2007.