HomeMy WebLinkAbout11 - Land Use Entitlements for the Residences at 4400 Von Karman Project (PA2020-061) - Correspondence - Koll Property AttorneyReceived After Agenda Printed
January 26, 2021
Item No. 11
Cre ff Will is, a pmfcssional corporation
The Law Offices of Geoffrey Willis
9891 Irvine Center Drive, Suite 200
Irvine, CA 92618
(949)374-3815
January 25, 2021
Via Email and First Class Mail
City Clerk, City of Newport Beach
100 Civic Center Drive, Bay E, 211 Floor
Newport Beach, CA 92660
Re: Residences at 4400 Von Karmen (the "Project")
To Mayor Brad Avery and Members of the City Council:
Writing on January 11, 2021 the day before the last scheduled hearing, The Picerne Group (the
"Applicant") and its counsel Jennifer Hernandez both provided the City with "discussion"
regarding the challenges of surrounding building owners — the owners of the common area being
taken from them without their permission. Both of these letters were misleading and contain
multiple significant factual and legal inaccuracies.
A. Parking
As an example, in the January 11, 2021 letter from Jennifer Hernandez, she states that "A few
parties have questioned whether residential development is permitted on this surface parking lot
location, and whether Koll and/or Picerne may replace surface parking spaces with covered
parking spaces in nearby but different locations." By posing the question in this manner, the
reader would incorrectly infer that the surrounding building owners have an issue with covered
parking. This is both ridiculous and distracting from the true issue. The applicant is replacing
required surface with both elevated and underground parking despite the fact that "on -grade"
parking is required by the CC&Rs governing the Project area. Whether or not the parking is
"covered" is irrelevant and attempts to distract from a fatal defect in the approval package.
In addition, the description of parking for the proposed Project incorrectly assures the reader that
parking for the surrounding offices will be replaced. However, the Addendum fails to note that
the City's Code requires that parking be provided on-site, not off-site at a parking structure
located 600 feet outside of the Property boundary. The Addendum improperly glosses over the
fact that there is a 262 parking space deficiency during a significant portion of Project
construction.
B. Settlement Agreement
In addition, the Applicant also inaccurately describes the prior settlement agreement in the 2015
action brought by Olen Properties regarding a different proposed development in the same
general area as the present Project. Despite the description given in Applicant's letters, the
settlement agreement only prohibits Olen from the argument that the CC&Rs prohibit any
residential development. Olen has complied with the terms of that settlement agreement and has
not made the argument that any and all residential development is completely barred in all
circumstances from development within the Koll Center by the terms of the CC&Rs.
C. No Required Retail Component
As previously discussed in Olen's submittals on January 11 and 12 in this matter, Picerne fails to
meet City planning requirements because there is no retail component described anywhere in the
Addendum for the Project. Absent a retail component, the Project is NOT a mixed use project,
fails to have supporting retail and other services as required by the City's General Plan and
supporting City planning documents, and violates the City's own requirements. Accordingly, the
Addendum fails as a CEQA document and illustrates the Project's fatal inconsistency with the
City's planning requirements.
D. Separate CEQA and CC&Rs Challenges
To further distract from the serious flaws in the Applicant's approval package, Picerne and its
counsel concoct an argument that attempts to conflate the serious environmental impacts caused
by the Project with the separate but equally important monetary claims in which the City plays
no role. The potential environmental harm caused by this Project is significant and fatal. The
Applicant has implied that Olen has somehow tied these two independent cases together and
demanded cash payment to settle the CEQA suit. This is completely untrue. Olen has separately
and independently sought to eliminate true environmental impacts caused by the Applicant's
Project while seeking compensation for the monetary harm it will suffer in a private dispute with
the Applicant and the Declarant.
In its prior challenge letters filed with the City, Olen raises significant and troubling issues
relating to the serious environmental harm caused by the City including the fact that the
Addendum fatally uses an antiquated traffic impact measurement tool (Level of Service or
"LOS") with a recently approved mandatory traffic impact measurement tool (Vehicle Miles
Traveled or "VMT"). LOS measures delays at traffic signals which is no longer allowed under
CEQA. Additionally, even though the City used the wrong standard (LOS), that standard
exceeded the City's own traffic threshold and precludes the use of the Addendum.
In addition, despite its significance and importance, the applicant provides zero analysis of the
impact of the Project on Greenhouse Gasses ("GHG"). Finally, the additional defects in the
Addendum are plentiful including issues with aesthetics, air quality, cultural and tribal resources,
energy, geology and soils, hazards and hazardous materials, hydrology and water quality, land
use and planning, noise, as well as utilities and service systems. Olen challenges the potential
adoption of the Addendum on numerous valid grounds.
In contrast, in a private dispute with both Koll and Picerne, Olen has every right to pursue
mitigation for violations of private disputes not involving the City. In the present case, in
addition to the numerous CEQA violations, the actions of Picerne and Koll have created
personal, private liability because of violations of the CC&Rs put in place to protect the interests
of the individual building owners from bad actions like the actions being taken in the present
case. Picerne and Koll simultaneously are significantly impacting the environment and
separately and independently creating contractual damages claims. Olen has every right to act as
a private citizen enforcing its public rights under CEQA as well as protecting itself from the
violation of private contractual and similar obligations coming out of private agreements.
In addition, the CEQA arguments posed by the Applicant are similarly incorrect and aimed to
distract from the Addendum's significant failings. As an example, Jennifer Hernandez wrote
"No commenter has challenged the fact that all displaced surface parking stalls are in fact
replaced." This is completely untrue and misleading in multiple ways. First, Olen and many
other have correctly claimed that parking is eliminated and never properly replaced. Second,
Olen and others have pointed out that during construction there is a deficit of 262 parking spaces
for a significant amount of time. Third, Olen and others have written to the City regarding the
Applicant's intent to replace required "on-grade" parking with contractually barred underground
and elevated parking. Significant parking rights are being taken away from Olen and it is
disingenuous to argue that "no one has challenged" the significant loss of parking.
In addition, the Applicant's letters do highlight one issue that has been ignored completely by the
City and the Applicant. Koll is the Declarant of the Koll Business Center. The common area
which is the site of the Project, is OWNED in part by each of the building owners whose
property is subject to the CC&Rs, with each individual building owner, like Olen, owning an
undivided interest in the common area. The City is allowing this Project to move forward
without the consent of those that actually own the Project site land. This is a violation of CEQA,
the Government Code and a number of other statutes relating to common interest ownership
projects.
The Applicant then launches into another diatribe complaining about the City seeking neighbor
input ending with inapplicable case cites. The City has the absolute right to delay the Project to
seek input from neighbors and other interest groups. We encourage the City to delay the Project
to allow for further input from neighbors and other interested parties. What the cases cited by
the Applicant DO stand for is that the City cannot in effect delegate its police powers to a group
of private citizens. In the present case, were the City to say it would not consider the Project
until there was "approval" by outside groups, that would be illegal. Simply delaying the Project
to seek and process citizen input is not only allowed under CEQA, it is encouraged.
Finally, the Applicant has publicly stated that if there is a conflict between the CC&Rs and the
City's Design Guidelines, the Design Guidelines "override" the CC&Rs. Nothing could be
further from the truth. The CC&Rs expressly provide that while the Design Guidelines "can fill
the gaps" if issues are not addressed in the CC&Rs, it is also clear that the terms of the CC&Rs
cannot be "overridden" by the Design Guidelines and inconsistencies are resolved in favor of the
terms of the CC&Rs.
This is a troubled Project with numerous significant and often undisclosed environmental
impacts. Olen Properties encourages the City to deny this Project until such time that the
Applicant complies with the requirements of law.
Sincerely
W&
Geoffrey