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SR-410-017 ~W' t!IO-OIr- (-A- t -\1 ~ ~ () THE SANTA MONXCA BEACH HOTEL AND COMHUNXTY CENTER CXTY COUNCJ:L STAP'P REPORT COUNCIL MEETING DATE: JULY 17, 1990 $2.00 ATTACHMENTS AVAILABLE AT ADDITIONAL CHARGE UNDER SEPARATE COVER ~IAL- I ?kC~k&t ""'\ ----- \ ] I r , , -$2511D \ \ \ \ '. \ "'--- I i ~ ATTACHMENTS: 1. Planning Commission Staff Report (May 23, 1990) 2. Development Agreement 3. Concession Agreement and Ground Lease 4. Disposition and Development Agreement 5. Tri-Party Agreement 6. Planning Commission Information Item (May 30, 1990) 7. Resolution Certifying Final Environmental Impact Report with Statement of Overriding Considerations 8. Ordinance Adopting the Development Agreement 9. Resolution Authorizing the Negotiation and Execution of the Concession Agreement and Ground Lease 10. Resolution Authorizing the Negotiation and Execution of the Disposition and Development Agreement 11. Resolution Approving the Tri-Party Agreement 12, Mitigation Monitoring Plan w/sstbl o an overview of the environmental review process and compliance with CEQA which includes a discussion of the public review process, alternatives analyzed in the EIR and Addendums 1 and 2 (pgs 14-19); o a review of the key elements contained in the Development Agreement including the proposal for targeting of Transient occupancy Tax revenue (pgs 19-20); o a brief description of the purpose and content of the Concession Agreement and Ground Lease and Disposition and Development and Tri-Party Agreements (pgs. 21-26; o a Sl1lftlft-:lry of the proposed proj ect' s fiscal benefits to the City including annual revenue payments and municipal taxes to the City (pgs 26-27); o a discussion of the proposed project's conformance with the Municipal Code and General Plan (page 27); o a presentation of the Planning Commission Actions and Recommendations from meetings held on May 23 and May 30, 1990 (pgs 28-30), and o a comparative analysis of a public beach facility alternative which would convert the existing private facilities into a City-run public beach facility (pgs 30-35) . The report concludes with staff recommendations to approve the proj ect (pgs 35-36). Many sections of the report refer to the reader to attachments. All attachments have been made available to the public. BACKGROtmD The project site is a 4.9~ acre beach front parcel located at 415 Pacific Coast Highway (PCH). The property was originally developed in the 1920's as a private estate for Marion Davies by William Randolph Hearst. The estate was purchased in the 1940's by a private party and converted to a hotel and beach club. In 1959, the State of California acquired the property and granted management responsibility to the City of Santa Monica under the terms of a long-term operating agreement. Since 1960, the property has been occupied pursuant to a concession agreement by the Sand and Sea Club, a private, limited membership beach club. Regular access to facilities on the site - 2 - Availability of the RFP was noticed in several statewide publications. Nearly 200 potential developers requested and received copies of the RFP. Eleven proposals were received by the deadline of July I, 1987. City staff from the City Manager's office, co~munity and Economic Development Department and Recreation and Parks Department were assisted by the consulting firm of Keyser Marsten Associates, Inc. in the review and analysis of the proposals. The state Department of Parks and Recreation was also kept advised during the review process. All eleven proposals were reviewed in detail. The principals were invited to interviews as well as asked for written responses to outstanding questions and issues during the evaluation process. In addi tion to meeting the obj ecti ves of the RFP, developers were evaluated on the basis of financial capability, experience with projects of similar scale and character, experience in working with public agencies on similar public/private partnerships, as well as qualifications of key staff, management experience, and organization and management approach. Four development teams emerged as the most capable and experienced of the 11 proposals, while at the same time most effectively balancing the public access and revenue generating components of the RFP. City staff evaluated each of the four finalists in a number of key land use and lease agreement areas and recommended to the City Council that it select the Santa Monica Beach Development Partnership to develop the property. On June 14, 1988 the City Council conducted a public hearing and voted to select the Santa Monica Beach Development Partnership to enter into exclusive negotiations of lease, development, and other agreements necessary for development of the property. Once selected the Partnership began work to more specifically define a development and progr~mming concept necessary to begin work on the environmental review documents. This development took nearly a year to accomplish and included the active participation of City staff, consultants and the public. Because - 4 - staff, which proposes new active recreational facilities south of the pier as soon as funds from the project become available. S~nce council selection of the project, State agencies have also been kept informed of project developments. Coastal Commission staff has reviewed and provided comments on the project as well as the state Department of Parks and Recreation and Caltrans. PROJECT DESCRIPTION Existing improvements include the Sand and Sea Club facilities, a public beach restroom at the northwest corner of the site, a 176-space public beach parking lot and small concession stand at the south end of the site. Also located on the site is the City Landmark North House. The Landmarks Commission has recognized the entire site as one of Historic Interest. The proposed project would relocate the North House to the northern edge of the parcel. It would be restored and expanded to house the Community Center. All other existing improvements would be demolished. The Santa Monica Beach Hotel and Community Center would consist of a full service luxury hotel and an adjacent Community Center complex. The hotel would contain a minimum ot 148 and a maximum of 160 rental rooJllS. Twelve suites would be designed to be sub-divided into smaller suites and single rooms. The proj ect developer proposes to develop a total of 209,684 square feet of adjusted floor area on the 4.91 acre site. The following table provides a floor area Sl)llnnary for selected uses of the project. - 6 - A shared use analysis of the project1s parking demand was conducted and determined that the peak parking demand would be 524 spaces. The proposed supply of 528 spaces will be sufficient to accommodate the combined peak hotel and Community Center demands along with the replacement of the beach parking. The Santa Monica Beach Hotel The hotel guest room arrangements consist of single roo~s (124), one bedroom suites (12), two bedroom suites (10), a Vice Presidential Suite and a Presidential Suite. Some suites would be arranged on two floors connected by an interior circular stair. All the two bedroom suites would be designed to break down to single rooms, if needed. The two presidential suites would be designed to break down to separate one bedroom suites, if needed. A minimum of 148 and a maximum of 160 room keys will be provided. All rooms feature either direct ocean views or views of the project's landscaped gardens and have private balconies or patios. The archi tecture consists of 2, 3 and 4 story builcl1nqs. The hotel buildings parallel to Pacific Coast Highway would be 4-stories and 35 feet high. Four stories can be accommodated by the smaller floor-to-floor height characteristics of a hotel, and setting the four-story building approximately 5 feet below the grade of Pacific Coast Highway, since the grade slopes downward toward the ocean. The design includes mechanical screening to create a more interesting roof line and more appealing view of the project from palisades Park. These roof enhancements would add a maximum of 10' feet in building height to a limited area. Thus, the effective build~nq height for these portions of the two buildings with screening would be 45 feet, 10 feet greater than the prescribed limit but the same as the 45 feet height maximum ~n the R-4 Zone. In addition to lodging, the hotel is proposed with an indoor/outdoor restaurant which would begin inside the main hotel building and expand outward toward the pool and beach. The - a - Directly adJ acent to the Communi t.y Center would be an outdoor sculpture garden, a children's play area, a seasonal sales/rental kiosk for beachgoers, and a direct connection to the beach bicycle path. The developer would be responsible for construction, staffing and operation of the beach cafe, public changing and shower facilities, meeting room, arts and Marine Learning Center and all related cultural, artistic and environmental programming. The developer proposes to use revenues from the beach cafe, fees generated from other public uses of the community Center and fund raising to contribute to these operating costs. The developer anticipates subsidizing the remainder of the Community center operat~ng costs from hotel revenues. The Beach Cafe The western end of the community Center's ground floor would feature a moderately-priced 200-seat cafe with an open kitchen plan. A walk-up window would also be available for beach visitors and bicyclists. Packaging of food in recyclable materials would be required at the walk-up window. The Development Agreement requires the developer to conduct a beach litter cleanup effort twice daily during peak activity periods within 500 feet of the project site. The Public Changing Facilities Located on the Community Center's ground floor, and adjacent to the Beach Cafe, would be separate changing rooms and showers for women and men. Beach visitors would be able to place their clothing into special baskets to be stored in a secure separate storage room that would be maintained by Center staff. Towels and other shower items would be also be available. The changing rooms would be equipped with bas ic locker room ameni ties and would be open year round. - 10 - Angeles county Natural History Museum has signed a letter of int.ent. wi th the developer to pursue negotiations to manage and operate the environmental facility. The arts component would occupy most of the second and third floors of the center and provide a variety of innovative visual and performing arts activities. This space includes three studios, offices and storage areas. It is anticipated that the Wests ide Arts Center would relocate to the site. Program examples could include an arts curriculum designed to be part of the Santa Monica-Malibu Unified School District's Middle School curriculum and a variety of visual and performing arts classes geared towards different age groups, including adults and seniors. other activities could include arts demonstrations, performances and special events. Weekend programs would consist primarily of drop-in activities for beach visitors, biCYClists, and Beach Cafe customers. Ot.her Out.door Recreat.ion Facilities Adj acent to the Community Center there would also be several ot~er outdoor recreation facilities for the public. Immediately west of the public parking entrance ramp would be a public sculpture garden. To the west of the outdoor seating area for the beach cafe would be a children's play area to be equipped by the developer. A boardwalk plank from the sculpture garden to the beach area would be provided to improve access to the beach for those with physical limitations. A new connection to the beach bike path would be constructed and bike racks would be made available. Beach volleyball facilities would also be available. Other Project Aspects Project Art Proqram The proposed proj ect would display contemporary art, featuring local artists throughout the site. Art would be featured in the sculpture garden as well as the hotel gardens. Public art with a value of at least 1% of hard construction costs would be provided - 12 - down to the public parking contained on level 2. The 281 ramp would also be used by service vehicles. The ramp leads to Parking level 1 which contains the publicly accessible handicapped spaces, hotel parking, loading and unloading for service and trash vehicles. o a drop-off zone for school buses and vans is located just south of the project driveway, parallel to Pacific Coast Highway; o pedestrian access from the public parking level 2 ~s provided by way of an elevator to the ground floor of the Community Center, and by stairs located at the northwest corner of the parking garage. Public wiShing to access the beach may use either the elevator or stairs. o pedestrian and bicyclists would be able to access the site from the beach (west). A new link to the beach bike path would be made to the site; o a five-foot wide sidewalk parallel to pacific Coast Highway stretches from the project driveway to the south end of the site; o an over-the-sand wood plank system for access to the shoreline for the disabled. Proposed D.velopmeD~ Schedule The project would be constructed of 18 to 24 months beginning in simultaneous occupancy for the Community Center in late 1993. in a single phase over a period 1992. Current plans anticipate Santa Monica Beach Hotel and CEQA COMPLIANCE: THE ENVIRONMENTAL REVIEW PROCESS The CEQA review began in August, 1988 with an Initial Study. This preliminary assessment of the proposed proj ect determined that the proposed project could have a significant adverse impact - 14 - significant iEpact at the intersection of PCR and the California Incline during weekday afternoon rush hours. After preparation of the Final EIR, the developer proposed two project changes to reduce the significant impact. These measures would require that the hotel restaurant be closed on weekdays between 3:30 and 6:30 and reduce the size of the Beach Cafe from 200 to 160 seats. Upon a technical analysis by the City's traffic consultant, staff concluded that these measures were feasible, enforceable and would reduce the impact to an acceptable, less than significant level. The EIR analyzed six alternatives to the proposed project: (A) No change in pre-project conditions; (B) Hotel development at decreased intensity; (C) Public park and parking lot; (D) A mixed-use recreational facility inCluding restaurant, museum, meeting room, and a parking lot: (E) Public beach facility and restaurant, and (F) Alternative sites for the proposed project. The selection of alternatives was based on an ability to satisfy the two major criteria for alternatives established by the CEQA Guidelines: the potential to mitigate significant project-related impacts and the feasibility relative to the project objectives. these objectives were: o To remove the private beach club use of the project site in response to a directive from the State. o To provide for increased public access to the project s~te. o To provide a minimum annual revenue of $500,000 to the City for beach improvements and maintenance. o To provide for development of coastal/beach-dependent activities. - 16 - Addendum 1 analyzed a development alternative consisting of the project as proposed but with the two-level subterranean garage located entirely east of the 1921 Mean High Tide Line. Under this alternative, the location of the driveway entrance to the site would remain the same, but the public parking ramp would be9in approximately 10 feet to the east of the location shown for the proposed project and curve under the hotel (see Addendum I, Figure 1). The hotel's valet parking ramps would remain as shown in the Project. Under this alternative, each parking level would be rectangular rather than square in shape. Square footage changes under this alternative as compared to the proposed project are limited to subterranean parking levels, hotel back-of-house and health spa, and the hotel multi-purpose room. This alternative does not change the gross or adjusted floor area of the Project as analyzed in the DEIR or FEIR because: (1) subterranean parking is not counted in the City's defini tion of "floor area," and (2) the additional floor area needed for the health spa and hotel back-of-the-house areas (which results from a less efficient rectangular design of the P-l parking level) is no greater than the floor area associated with the hotel multi-purpose room, which has been eliminated in this alternative to accommodate the new public parking ramp. The environmental implications of this development alternative as compared to the proposed project are discussed in the Addendum. The document concludes that, although there would be some increase in construction noise and air quaIl ty related impacts with this alternative as compared to the proposed project, these increases would not create any significant impacts. All other dens~ty-related impact issues and design-related issues would be the same or comparable to the proposed project. The costs of constructing the alternative garage design are substantially higher than the preferred garage. If the developer elects to construct the alternative garage design, up to half of the additional construction cost to a specified maximum may be offset by percentage rent over time. The amount of construction - 18 - D.r:;v ~LOPHEN'1' AGREEMENT The Development Agreement (DA) contains the land use and development standards that will regulate the proJect uses, height, size design and scale of the proj ect. The Agreement delineates the responsibilities and obligations or both the Developer and the City before, during, and after construction of the project. A detailed discussion of the key elements contained in the DA can be found in the Planning Commission staff report (Attachment 1, pages 35 - 46). These elements describe: o maximum floor area o building height o maximum parcel coverage o minimum setbacks o access and circulation o landscaping o parking o permitted uses o changes to the project o application of existing land use regulations o Landmarks Commission Review The DA also describes the mitigation measures required for the project. Mitigation measures and ree categories include: o parks and recreation o arts o design o General Services requirements o public sewer capacity allocation The Development Agreement, in its entirety, is provided as Attachment 2 to this report. - 20 - Prior to commencement of any construction work, the developer w~ll be required to deliver to the City a performance bond and labor and material payment bond guaranteeing full performance of the construction of the proj ect . Additionally a construction security deposit of $1,000,000 (cash or letter of credit) will be required as further securi ty for the developer · s construction obligations. The Lease provides the City with a guaranteed source of ground rent income from the property and an opportunity to participate in the various types of profits the developer may realize from the proj ect. The Lease also provides that the developer is responsible for all expenses of Community Center operations, with no City subsidy. The Lease obligates the developer to pay a construction holding fee once it takes poss~ssion of the property in an amount between $54,167 and $79,167 per month. At the end of the construction (or no later than IS months after taking possession), the developer is obligated to begin base rent payments. The annual base rent will be not less than $1,080,000. The lease also provides for escalation of the initial guaranteed base rent to keep pace with inflation. Base rent will be increased proportionately with the increase in CPI each five-year anniversary of the COMMencement date, throuqh the term of the Lease, with an annual floor of three percent and an annual cap of six percent, determined cumulatively over each five year period. The developer is required to pay the City a share of the gross revenue it realizes from operation of the Hotel. The City will receive as percentage rent the amount by which the sum of the following amounts exceeds base rent: 6% of Hotel room occupancy charges; 3% of Hotel food and non-alcoholic beverage sales, 5% of alcoholic beverage sales, 10% of Hotel parking revenue; 8% of electronic information and data service revenue; 10% of sublease revenue; and 10% of all other revenue. Additionally, the City will be entitled to receive 60% of all Public Parking Revenue, - 22 - Center obligat1on is further guaranteed by a minimum $800,000 ongoing letter of credit. DISPOSITION AND DEVELOPMENT AGREEMENT The Disposition and Development Agreement (nDDA") governs the relationship between the City and the developer from the time the city approves the DDA and Development Agreement, until the property is ground leased to the developer. The principal activities occurring during the DDA period are the acquisition of additional city and state land use approvals necessary for the project, and pre-eonstruction development required prior to the developer taking possession of the property. The DDA is provided as Attachment 4 to this report. The DDA delineates the city and state approvals to be obtained by the developer during the state approval period. The City approvals consist of approval of the Architectural Review Board, and approval by the city Landmarks Commission. If necessary, approval by the Santa Monica Rent Control Board will be required prior to demolition of existing improvements. The primary State approvals incluae: approval of the Concession Agreement and Ground Lease by the State Department of Parks and Recreation: approval of alcohol sales by the State Parks and Recreation Commission, approval by CalTrans of traffic improvements required pursuant to the Development Agreement: approval of the Development Agreement and issuance of a Coastal Development Permit by the California Coastal Commission, and issuance of a liquor license from the Alcoholic Beverage Control Board. The State approval period commences on the effective date of the Ordinance adopting the Development Agreement, and terminates one year later. The period is Subject to an extension of six months upon approval of the City, if the developer is diligently pursuing the state approvals. The period is subject to additional extensions only under certain delineated conditions not within the control of the developer. The DDA provides that if the primary State approvals are not obtained within the state - 24 - during the pre-construction development period. The developer is also required to indemnify the city and State from liability for the developer's acts occurring on the property. The DDA also contains provisions concerning title reports and title insurance; clean up of hazardous materials if found on the property; approval of construction plans and the construction budget; defaults and remedies7 assignment: extension of the state operating agreement; and arbitration of certain disputes. TRI-PAR'l'Y AGREEKEN'l' Since 1949, the City has been party to various operating agreements with the state, under which State Parks and Recreation has granted authority to the City to manage state Park land and tidelands in the city, while title to the land remains vested in the state. The state has now asked that the City enter into the "Tri-party Agreement" which is intended to clarify issues regarding title to and control of beach and beach adjacent lands in the City. On behalf of the State, the Tri-Party Agreement will be executed by the state Department of Parks and Recreation, the State Lands Commi3sion, and the Department of General Services, and approved by the Attorney General's Office. The Tri-party Agreement will also: transfer jurisdiction over tidelands in the City (at the state level) from state Lands to State Parks for a period of sixty years: establish a boundary line between tidelands and uplands for the entire Santa Monica shoreline; and confirm the legal effect of various grants and legislation transferring title to tidelands. The Tri-Party agreement is provided as Attachment 5 to this report. BUDGET/FINANCIAL IMPACT The lease term proposed for the project is sixty years with an option to extend the lease to ninety-nine years should there be a change in state law authorizing such term. Upon completion, the proposed project would provide economic benefits to the City of Santa Monica from annual revenues, annual - 26 - exact amount would be based upon the duration of the construction period. MUNZCXPAL CODE AND GENERAL PLAN CONFORMANCE The use of a Development Agreement to approve the proj ect is proposed due to the time involved for State approvals and the extended development period. The Development Agreement will provide a consistent set of land use and development standards for the entire period of proj ect development and a program of mitigation measures and other developer obligations. The Municipal Code establishes procedures for adopting development agreements. To approve a development agreement, the City Council must determine that the proposed Development Agreement nis consistent with the General Plan and any applicable Specific Plan." However, development standards such as density, maximum height or permitted uses co~tained in a development agreement may vary from those established in the Zoning Ordinance. The proposed project is in conformity with the General Plan, the Zoning Ordinance and the Draft Land Use Plan of the Local Coastal Program as discussed in the Final EIR, Volumes 1 and 2 and summarized in the Planning Commission staff report pages 47 - 50 (see attachment 1). PLANNING COMHISSION ACTIONS AND RECOMMENDATIONS The Planning Commission held a public hearing on Wednesday, May 23 , 1990 in the Ci ty council Chambers. All Planning Commissioners were present to hear public testimony from 34 speakers. The hearing was continued to Wednesday May 30th when another 14 speakers were heard. The actions under consideration by the Commission were recommendations to Council to certify the EIR and approve the Development Agreement. Prior to making a motion, the Commission questioned staff about: - 28 - 1. If legally feasible, the City should require the developer to give priority status for employment opportunities to Santa Monica residents. Second priority should go to persons living within 3 miles of the site. The intent of this recommendation is to reduce the commute distance of employees to the site. (The City has received preliminary indications from State staff that such a requirement would be unacceptable.) 2. The "economic feasibility" clause with reference to the reha.l:lilitation of the North House be removed from the DA. (Staff recommended that the clause remain with the stipulation that the feasibility be subject to staff approval. The Commission agreed.) 3. A public advisory committee be established to monitor and review Community Center programming. (The community Center Operating Agreement requires the on-going review of the Community Center by a public advisory group.) 4. The selection of the developer I s preservation architect be approved by the Landmarks commission. 5. The developer be required to provide a presentation model of the project for the Landmarks Commission and Architectural Review Board. 6. The City study the feasibility of installing large elevators from the public parking level to the Community Center. 7. The City council earmark the Transient Occupancy Tax (TOT) from the site and allocation of the tax be subject to public review. 8. The City review the financial forecast of the Wests ide Arts Center. 9. The City Council open the 5i te for public use as soon as possible. - 30 - These assumptions are based upon a physical conversion of the facilities currently on site. No programming efforts or City sponsored events are included in the calculations. In all cases, staff assumed that the public demand for the physical facilities and access to the site/beach would be quite high. Poeeneial Revenue Source. Based upon the existing facilities on site, staff identified four potential revenue sources: cOlDlllunity room rental rates in the North House, daily visitor use fees, cabana daily use fees, and parking. It was assumed that any food service would be operated as a break-even operation in order to maintain affordability to public. H~urly Meetinq Room Rates Based upon discussions with the City's cultural and Recreation services Department, staff projected a high demand for the North House community rooms. Staff estimated that North House could provide two community meeting rooms that could be reserved for two hour blocks, three times every weekday, and four times a day every Saturday and Sunday. Based on maximum occupancy 365 days a year and room rental rates of $20 for 2 hours, the annual gross reve~ue would be $47, 840. Daily Use Fees The existing Sand , Sea Club facilities were designed to accommodate a private beach facility that would generate revenue from annual membership dues. Conversion to a public beach facility eliminates this membership fee revenue stream, currently estimated to be over $1 million annually. In an attempt to recover this revenue at a public beach facility, staff looked at charging a daily per person use or admission fee. A survey of Southern California cities found none that had comparable public beach clubs; however, of the public facilities located on the beach, none charge a daily use fee other than hourly meeting room rental rates and court/field reservation fees. - 32 - Club has another approximately 100 spaces on site for Club members. As stated above, staff projects that 34,01.7 cars would park at the site each year. At the current parking fee of $5 per car, this would generate $170,085 per year. ~~~ua1 aevenue an_Mary Community Room Rentals Daily Visitor Fee Cabana Daily Use Fee Parking $ 47,840 $170,084 $ 50,370 $110,085 Total Annual $438,379 Expenses/Costs capital and Rehabilitation Costs For the City to operate a public beach facility at the site, the buildings would have to be meet the City and state accessibility requirements as well as be rehabilitated and refurbished. Staff estimates that this would cost approximately $2,000, 000 ~ Debt service on a $2,000,000 loan over a 10 year period at 8% would be $292,120 annually. Expenses/Operatinq Costs Staff estimated the operatinq costs facility. These estimates include utilities, security and staffing smnTnarized in the following chart ~ to run a public beach supplies, maintenance, among others. They are General & Administrative Personnel Expenses Debt service $270,000 $444,420 $292,120 Total $1,006,540 Net Annual Income <Loss> Projected - 34 - population of users. In contrast, the proposed project includes a $1.50 beach facility use fee while at the same time requiring no city subsidy and providing the state required net revenue flow. In snmmary, although the existing improvements could be converted to a public facility, such conversion would not achieve the Statets major financial objective and, it could be argued, does not provide a maximized public access usa in terms of unique recreational/educational opportunities. and support for the maintenance and operation of the most heavily utilized public beach in the state of California. STAPP RBCOMH!lNDATIOHS To approve this project, the City Council introduction for first reading an Ordinance adopting the DA, certify the EIR, adopt a finding of overriding considerations for potentially unmitigated siqnificant adverse impacts, and approve the resolutions directing the city Manager to negotiate and execute the concession Agreement and Ground Lease Agreement and DDA consistent with the documents attached to this staff report. CEQA aecommendations 1. The Planning Commission and City staff recommend that the City Council certify the Final Environmental Impact Report as complying with the California Environmental Quality Act (CEQA) and the City's Guidelines for Xmplementation of CEQA and as adequately analyzing the recommended project. 2 . The Planninq Commission and Ci ty Staff recommend that the City Council adopt a statement of overriding considerations for the potentially unmitigated traffic impacts and a general statement of overriding considerations in the event any subsequent adverse environmental effects identified in the Final EIR are not considered substantially mitigated under the requirements of CEQA (Attachment 7). - 36 - 4. Disposition and Development Agreement 5. Tri-Party Agreement 6. Planning Commission Information Item (May 30, 1990) 7. Resolution Certifying Final Environmental Im- pact Report with statement of Overr~ding Considerat~ons 8. Ordinance Adopting the Development Agreement 9. Resolution Adopting the Concession Agreement and Ground Lease 10. Resolution Adopting the Disposition and Development Agreement 11. Resolution Adopting the Tri-Party Agreement 12. Mitigation Monitoring Plan ~ ~ - 38 - ~. . ~A . . 1//0"- tJ/?- A T T A C B MEN T S 7-11 RESOLUTION CERTIFYING FEIR, ORDINANCE ADOPTING DA, RESOLUTIONS, ADOPTING CONCESSION AGREEMENT; GROUND LEASE DDA, AND TRI-PARTY AGREEMENT $2.00 "'1 ...- \ ,.... crt) , , ~. ~ . .... , \ i ATTACHMENT 7 CjED:PPD City Council Meeting: July 17, 1990 Santa Monica,California RESOLUTION NUMBER (City Council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT ON THE PROPOSED DEVELOPMENT AGREEMENT BETWEEN THE SANTA MONICA BEACH DEVELOPMENT LIMITED PARTNERSHIP AND THE CITY OF SANTA MONICA FOR THE BEACHFRONT PARCEL AT 415 PACIFIC COAST HIGHWAY WHEREAS, a Notice of Preparation of an Environmental Impact Report was issued on November 7, 1988; and WHEREAS, a Notice of Completion of a Draft Environmental Impact Report was published in December, 1989; and WHEREAS, in May, 1990, the Final Environmental Impact Report was published; and WHEREAS, in May, 1990, an Addendum to the Final Environmental Impact Report was published; and WHEREAS, in JUly, 1990, a second Addendum to the Final Environmental Impact Report was published; and WHEREAS, the Environmental Impact Report and all notices were prepared in compliance with the California Environmental Quality Act (CEQA), and the City of Santa Monica CEQA Guidelines; and - 1 - .~ .. . . WHEREAS, in May, 1990, the Santa Monica city Planning Commission reviewed the Final Environmental Impact Report, including Addendum 1, and recommended its certification to the city Council; and WHEREAS, in July, 1990, the Santa Monica City Council, as Lead City Agency, reviewed the Final Environmental Impact Report, including Addendum 1 and Addendum 2, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council has reviewed and considered the Final Environmental Impact Report on the project to be developed in accordance with the Development Agreement between the Santa Monica Beach Development Limited Partnership and the City of Santa Monica prior to acting on the project. SECTION 2. The city Council finds that the Final Environmental Impact Report adequately reviews and analyzes potential environmental effects of the proposed project. SECTION 3. The city Council finds that there has been an alteration to the project which reduces the environmental impacts identified in the Environmental Impact Report (EIR). In response to concerns over the project's potential environmental impacts, the applicant revised the project design which included a four foot step back on the second and third levels on the south - 2 - . . ) These measures will significantly avoid or reduce the potential impact on traffic circulation, therefore, the City Council finds that, as substantially mitigated by the above specified requirements, the potential impact on circulation is acceptable. SECTION 7. In the event any of the adverse environmental effects identified in the Final EIR are not considered substantially mitigated within the meaning of Article VI, Section 13 of the city CEQA guidelines, and Section 15093 of the state CEQA guidelines, the city Council finds that the benefits of the project outweigh its unavoidable environmental risks for the reasons stated in sections 4 (a) and 5. SECTION 8. Pursuant to Public Resources Code section 2108l.6, the mitigation measures required by this Resolution shall be monitored by the city to ensure their compliance during project implementation in accordance with the requirements of the EIR1s mitigation monitoring program (Final EIR, Volumes 1 and 2), Development Agreement, Disposition and Development Agreement, and Ground Lease. The monitoring program shall include the filing of annual reports to the City in conjunction with the Development Agreement annual reports and, as required by the Disposition and Development Agreement, or Ground Lease, the designation by the City of staff whose principal function shall be to implement the mitigation measures. SECTION 9. The City Council certifies that the environmental review for the project was conducted in full compliance with state and City CEQA Guidelines, that there was - 36 - . . . ~ and east side of the property and incorporated the multi-purpose center into the main hotel building, further reducing the building massings along Pacific Coast Highway. In response to concerns over the treatment of the North House, a City Landmark, the applicant has revised the plans for the community center preserving and restoring all the significant interior historical features. The site plan revisions incorporating the mUlti-purpose center into the main hotel building serve to open up the north end of the site and enhance views of the North House. SECTION 4. The City council makes the following findings, consistent with Article VI, Sections 12 and 13 of the City of Santa Monica CEQA Guidelines and Sections 15091 and 15093 of the state of California CEQA Guidelines. In addition to the Final EIR, the record upon which these findings are made includes the following, of which the City council takes administrative notice: Request for Development Proposals, 415 Pacific Coast Highway, Santa Monica, California, April l, 1987~ Santa Monica City Council staff Report Regarding Developer Selection (June 14, 1988); Santa Monica Planning Commission Staff Report, May 23, 1990. (a) (1) The City Council finds that there are no feasible, reasonable and available alternatives and there are no further mitigation measures to the project that would significantly and substantially reduce the impact on the environment while accomplishing the City's goals and objectives for use of this - 3 - . . beachfront parcel contained in the Request For Proposal (April 1, ~ . 1987) . (2) Further, the City Council finds that the project will convert a state-owned, City-operated beachfront parcel from a private beach club into a high quality, visitor serving hotel and state of the art community center. The project will also deliver relief and additional revenues to the City's depleted Beach fund while encouraging increased public access to the site by providing the following community service enhancements: (a) increased public parking (up to lOO spaces) during peak beach going seasons~ (b) a 200 seat beach cafe and outdoor patio; (c) a public beach facility with restrooms, lockers, and showers; (d) community center educational and activity programming to include cultural arts and environmental awareness; (e) shuttle vans to and from remote sites such as schools for special classes and activities; (f) a community meeting room and outdoor deck overlooking the grounds and ocean; (g) a children's play area; (h) a sculpture garden; (i) beach volleyball facilities, and (j) public art displayed throughout the site. - 4 - . . None of the capital, programming or operating costs associated with the Community Center will require City funding. (3) Further, the city Council finds that the project will preserve, rehabilitate and open to the public a City designated Landmark, the North House. All the significant interior historic features will be preserved and rehabilitated by the applicant. (b) The Final EIR determined that without mitigation the project could result in significant adverse impacts on ~he natural terrain and local geology in the following manner (Final ErR, Volume ~, Section IV-B). There will be temporary disruption in the project locale during excavation and construction. Project construction will require dewatering of the upper, unconfined aquifer. Potential geologic hazards exist from naturally occurring gross or surficial failure of the bluffs. The location of the property in relation to known active faults indicates that the site is not exposed to greater seismic risk than other locations in the local region. Nevertheless, movement on any of the active or potentially active faults could cause ground shaking at the building site. consistent with Article VI, section 12 of the City CEQA Guidelines and Section 15091 of the state CEQA Guidelines, the city finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to natural terrain and local geology: (1) dewatering and pumping techniques for both the upper unconfined aquifer and lower confined aquifer - 5 - . . shall be approved by the City Building and Safety Division prior to project construction: (2) the preparation of a comprehensive geotechnical report specifically for the site which will include provisions for excavation, the correction of potential geologic hazards, and an analysis of the bluffs to the northeast of the site to assess its factors of safety against gross and surficial failure; (3) all grading during construction shall be carefully observed, mapped and tested by the project engineer: (4) all grading shall be performed under the supervision of a licensed engineering geOlogist and/or soils engineer in accordance with applicable provisions of the Municipal Code and to the satisfaction of the City Building and Safety Division~ (5) all applicable specifications of the local building codes and regulations shall be complied with in the design and construction of the project; and (6) the liquefaction potential during construction shall be eliminated to the satisfaction of the Building and Safety Division by utilizing techniques such as recompaction of soil, dewatering device to relieve pore pressure, grout injection or installation of reinforcing stone columns. - 6 - . . These measures will avoid or sUbstantially lessen the potential for significant adverse impacts on natural terrain or local geology and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume 1, section IV-B). (0) The Final EIR determined that without mitigation the project could result in a significant impact to short-term air quality during site demolition and construction in the following manner (Final EIR, Volume I, section IV-C, Volume 2, Responses to Comments). The creation of dust and the daily emission of pollutants from construction equipment could slightly exceed threshold criteria established by SCAQMD. Such impacts would be temporary in nature but are considered unavoidable significant adverse effects attributable to the proposed project. Consistent with Article VI, Section 12 of the City CEQA guidelines and sections 15091 of the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to short-term air quality impacts: (1) ground wetting shall be required for dust control during grading and construction in compliance with SCAQMD Rule 403: (2) any stockpiles of soil, sand and similar materials shall be covered and located at least fifty feet from adjacent properties: (3) all construction equipment shall be shut off when not in - 7 - . . direct use; (4) low sulfur fuel shall be used for construction equipment; (5) construction activities shall be discontinued during second stage smog alerts; (6) loading of haul trucks shall take place at least 50 feet from adjacent properties; (7) construction of temporary barriers/screening of at least eight feet in height shall be erected to eliminate the adverse effects of windblown excavated matter; and (8) prior to issuance of a demolition permit, the project applicant is required to certify that, should asbestos be found in existing structures, a licensed, certified contractor specializing in asbestos removal shall perform the required work in accordance with California OSHA standards. These measures will avoid or substantially lessen the potential for significant adverse impacts to short-term air quality, and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume 1, section IV-C, Volume 2, Responses to Comments, Letter A) . (d) The Final EIR determined that without mitigation the project could result in significant impacts to long-term air quality in the area in the following manner (Final EIR, Volume 1, Section IV-C). The Final EIR determined that the project would result in an increase in long-term daily emissions. Increased daily emissions will be generated by vehicular trips to the site - 8 - . . and by stationary sources such as the consumption of natural gas and burning fire places but are not predicted to exceed the SCAQMD thresholds. Consistent with Article VI, Section 12 of the City CEQA Guidelines and Section 15091 of the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been reuqired in the project which will mitigate or avoid the potential significant environmental effects identified with respect to long-term air quality: (I) the project shall comply with the SCAQMD's Regulation XV to help improve the region's air quality by reducing employee peak hour trips; (2) vents for all subterranean parking areas shall be located as least fifty feet from adjacent residential properties; (3) all fireplace chimneys shall be equipped with spark inhibitors and designed to facilitate fast burn rates and high intensity flames; and (4) vents for all kitchen areas shall be located as far away as possible from adjacent residential property. A charcoal or similar air filtration system will be required to remove odors from air vents. Vents for the hotel restaurant shall be located on top of the hotel roof. Vents for the Beach Cafe shall be located on the south side of the North House away from the residential area and as high up on the North House facade as can be accommodated within historic preservation practices. Where feasible, the location of the vents shall take - 9 - . . into account the predom~nant prevailing wind direction to minimize impacts on adjacent residences. These measures will avoid or substantially lessen the potential for significant adverse impacts on long term air quality and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume 1, Section IV-C) . (e) The Final EIR determined that without mitigation the project could result in adverse environmental impacts in Water/Hydrology due to storm runoff and drainage in the following manner (Final EIR, Volume 1, Section IV-D). Consistent with Article VI, section 12 of the city CEQA Guidelines and Section 1509l of the state CEQA Guidelines, the city finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential adverse impacts due to storm runoff and drainage at the site: (1) high points in pavement grade shall be designed to prevent runoff from the site and PCH from entering the subterranean parking structure: (2) site drainage shall be graded directly toward the beach or to local catch basins where non-closable grate drains shall be placed; (3) grate openings shall be of a size to accommodate 1.5 times the amount of water that the outflow pipe can convey. The outflow pipe shall be composed of polyvinyl chloride (PVC) or other non-caustic pipe; - 10 - . . (4) If the PVC-type pipe is exposed to additional weight or load, the pipe shall be encased to prevent failure. The outlets for drainage pipes shall include a rock or concrete splash dissipater pad to prevent scouring; (5) a project drainage plan shall be submitted to the City Engineer for review and approval, prior to development of any drainage improvements; and (6) any additional proposed drainage improvements shall be developed to the satisfaction of the City Engineer and shall meet applicable requirements from other responsible agencies. These measures will avoid or substantially lessen the potential for storm runoff and drainage impacts at the site and thus avoid or sUbstantially lessen the potential adverse effects identified in the Final EIR. (f) The Final EIR determined that without mitigation the project could result in significant impacts to noise in the project area in the fOllowing manner (Final EIR, Volume 1, Section IV-E). Construction activities resulting from project implementation would result in increases in ambient noise levels in the vicinity of the site on an intermittent basis. Noise levels would fluctuate depending on construction phase, equipment type and duration of use, distance between noise source and listener, and presence or absence of barriers between the noise source and listener. Estimated noise levels would not change significantly from existing conditions. Consistent with Article VI, Section 12 of the City CEQA Guidelines and Section 15091 of - 11 - . . the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential adverse noise impacts identified: (1) a construction period mitigation plan shall be prepared by the applicant for approval by the Department of General Services prior to issuance of a building permit. The plan shall be in sufficient detail to determine the duration of construction activities and the specific types of equipment to be used and approximate locations, especially compressors and pumps; (2) project shall comply with applicable City noise regulations specified in the City Ordinances (Santa Monica Municipal Code Chapter 3A; Ordinance Numbers 1406 CCS and 1458 CCS) i (3) project contractors shall muffle and shield intakes and exhaust, shroud and shield impact tools, and use electric-powered equipment, as feasible; (4) temporary walls and noise barriers shall be placed around the site and/or locations of noisy activities to block and deflect the noise from the adjacent residential properties; (5) pile drilling with tie-down anchor method shall be used to minimize noise impacts; (6) during feasible stages, portable noise curtains or panels shall be used to contain noise from powered tools; - 12 - . . (7) truck deliveries and trash pickup shall be prohibited between the hours of 7:00 PM and 7:00 AM. (8) the level of noise from rooftop mechanical equipment shall conform to the provisions of the Santa Monica Noise Ordinance for Zone I. Should the equipment exceed the noise ordinance thresholds at the property line, then the rooftop mechanical equipment 5hall be fully enclosed or partially enclosed (depending on the equipment) in a manner that will achieve the Zone I noise levels at the adjacent property line. (9) parking garage ramp surfaces shall be of the type to minimize the potential for tire squeal; (10) windows and walls on the north side of the Community Center Building shall have a sound transmission class rating (STC) sufficient to eliminate the transmission of any sounds exceeding the sound level limits established in the City of santa Monica Noise Ordinance for Noise Zone I; (1l) a minimum a-foot wall shall be constructed along the northern project property line, or other noise attenuation measures shall be taken, to reduce sounds from the outdoor dining area and children's play areai (12) all state and local standards for exterior and interior noise exposure shall be met for the proposed project; (13) prior to issuing building permits, the applicant shall submit evidence, to the City'S satisfaction, that all project land uses will meet applicable exterior and interior noise standards; - 13 - . . (14) a detailed acoustical assessment may be required to indicate, to the city's satisfaction, that the project has achieved acceptable exterior and interior noise levels through the use of mitigation measures such as acoustically rated glazing, sound insulation in exterior walls, adding mass to the exterior walls, sealing seams and joints in exterior walls and fixed windows designed with double paned or laminated glass; and (15) a construction period mitigation plan shall be prepared by the applicant for approval by the Department of General Services prior to issuance of a building permit. These measures will avoid or substantially lessen the potential for adverse noise impacts at the site and thus avoid or sUbstantially lessen the potential adverse effects identified in the Final EIR (Final EIR, Volume 1, Section IV-E) . (g) The Final EIR determined that without mitigation the project could result in an increase in daytime glare and evening illumination in the project area in the following manner (Final EIR, Volume 1, Section IV-F). The project could create a significant impact on residents south of the site and change the nighttime character of that section of the beach front. In addition, the project would result in nighttime illumination that would be perceptible to motorists, neighbors, and pedestrian traffic. Consistent with Article VI, section 12 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the city finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the - 14 - . . potential significant environmental effects identified with respect to light and glare: (1) applicant shall prepare a lighting and building materials plan for approval by the City's Architectural Review Board; (2) lighting and building materials shall be built and/or installed in accordance with City of Santa Monica ordinances, standards and applicable requirements: (3) measures to reduce adverse light and glare impacts to acceptable levels shall include: (a) lightly tinted glass to decrease reflectivity and emission of ambient light where appropriate: (b) exterior surface colors, materials and textures that reduce daytime glare, foliage; (c) landscaping shall be planted to limit exposure to project lighting and to decrease reflectivity: (d) outdoor lighting shall be shielded and directed on-site and downward: (e) outdoor lighting shall be reduced or softened after peak hours, especially in pool, garden and restaurant areas: and (f) outdoor lighting shall be restricted to security lighting between the hours of 12:00 AM and 7:00AM, - lS - . . (4) restrictions on lighting emitted from the southern facade of the project shall be required as part of conditions of approval; and (5) light emitted from the northern facade shall be shaded with window treatment or obstructed with landscaping along northern walls. , , These measures will avoid or substantially lessen the potential for adverse light and glare impacts at the site and thus avoid or substantially lessen the potential adverse effects identified in the Final EIR (Final EIR, Volume 1, Section IV-F). (h) The Final EIR determined that without mitigation the project could result in significant land use impacts in the following manner (Final EIR, volume 1, section IV-I). This determination was made because of the project's potential to be physically incompatible with the adjacent residential uses, the project's massive visual character from Pacific Coast Highway and an inadequate sideyard setback on the North end of the site. Consistent with Article VI, Section 12 of the City CEQA Guidelines and section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to land use: (1) a four-foot unexcavated side yard setback from the northern property line shall be included to allow for deep-root landscaping to buffer the adjacent residential - 16 - . . property; and (2) no outside activities shall be allowed within the North sideyard setback. These measures will avoid or substantially lessen the potential for significant land use impacts and thus avoid or substantially lessen the potential adverse effects identified in the Final EIR (Final EIR, Volume 1, section IV-I). (i) The Final EIR determined that without mitigation the project could result in significant adverse impacts on the City's water conservation efforts in the followinq manner (Final ErR, Volume 1, section IV-M). Consistent with Article VI, Section 12 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to water conservation: (1) the project shall incorporate water saving devices and techniques such as low-flow toilet tank, water-saving showerhead fixtures and xeriscape landscaping into the design and operation of the proposed project in accordance with the requirements of all City Ordinances; (2) the applicant shall install a water recycling system within the laundry facilities of the hotel portion of the proposed project; and (3) improvement costs to meet fire flow requirements and any improvements to on-site water lines shall be borne by the project applicant. - 17 - . . These measures will avoid or substantially lessen the potential for significant adverse impacts on water conservation and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-H) . (j) The Final EIR determined that without mitigation the project could result in significant adverse impacts on sanitary sewerage in the following manner (Final EIR, Volume 1, section IV-M). Consistent with Article VI, Section 12 of the city CEQA Guidelines and Section 15091 of the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to sanitary sewerage: (1) the applicant shall comply with current and future ordinance provisions regarding sewer capacity allotment in the city; (2) prior to issuance of a Certificate of Occupancy, the applicant shall present documentation to the General Services Department certifying that the project will not result in a net increase in wastewater flow by retrOfitting existing occupancies per General Services guidelines; and (3) the applicant shall be required to pay a sewerage facilities charge to the city before a permit can be issued to connect to the sewer per section 7190 of Ordinance 1451. - 18 - . . These measures will avoid or substantially lessen the potential for significant adverse impacts on sanitary sewerage and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-M) . (k) The Final EIR determined that without mitigation the project could result in significant adverse impacts on solid waste in the following manner (Final EIR, Volume 1, section IV-M). The development and operation of the proposed project would result in an adverse impact as it would contribute to the ultimate exhaustion of one of several landfills. consistent with Article VI, Section l2 of the city CEQA Guidelines and Section l509l of the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to solid waste: (1) the applicant shall participate in the Santa Monica Recycle program; and (2) trash receptacles sufficient in size and number to contain the trash generated on the parcel shall be provided with outdoor receptacles shielded from public view on at least three sides by impact resistant walls of not less than five or not more than eight feet in height and an impact resistant gate of not less than five and not more than eight feet high. - 19 - . . These measures will avoid or substantially lessen the potential for significant adverse impacts on solid waste and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-H). (1) The Final EIR determined that without mitigation the project could result in significant adverse impacts on communications in the following manner (Final EIR, Volume 1, section IV-M). Consistent with Article VI, section 12 of the city CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to communications: (1) the proposed project shall comply with Section 4. Subsection 7166 of the Santa Monica Municipal code requiring underground installation of commercial project cables. These measures will avoid or substantially lessen the potential for significant adverse impacts on communications and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-M). (m) The Final EIR determined that without mitigation the project could result in significant adverse impacts in fire protection in the following manner (Final EIR, Volume l, section IV-N). Project implementation would increase the need for fire protection and emergency medical services in the area. - 20 - . . consistent with Article VI, Section 12 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the City finds that the fOllowing changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to fire protection: (1) unless otherwise mitigated through design solutions reviewed and approved by the Fire Department, no building or portion of a building shall be constructed more than 150 feet from the edge of a roadway of an improved street, access road or designated fire lane; (2) unless otherwise mitigated through design solutions reviewed and approved by the Fire Department, the entrance or exit of all ground floor units shall not be more than l50 feet from the edge of an access road or designated fire lane; (3) fire hydrants shall be located on-site with their number and location determined after the Fire Department reviews definitive project plans and specifications; (4) a set standpipe water distribution system shall be installed throughout the project; (5) fully automatic sprinkler systems and fire alarm systems shall be installed throughout all project structures; (6) fixed extinguishing systems shall be installed in restaurant and kitchen areas~ (7) automatic fire alarm systems shall be installed throughout all project structures; - 21 - . . (8) improvements to the water system may be required to provide adequate fire-flow and the costs for these improvements shall be borne by the applicant~ (9) the proposed project shall comply with all applicable state and local ordinances regarding fire prevention and suppression; and (10) definitive project plans and specifications shall be submitted to the Fire Department, and requirements shall be satisfied prior to issuance of a building permit. These measures will avoid or substantially lessen the potential for significant adverse impacts in fire protection and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-N). (n) The Final EIR determined that without mitigation the project could result in significant adverse impacts on police protection in the following manner (Final EIR, Volume 1, section IV-N). Project implementation would increase the need for police protection in the area. consistent with Article VI, section l2 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the city finds that the fOllowing changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to police protection: (l) public spaces, such as hallways, elevators, and entrances shall be designed to prevent areas of concealment: - 22 - . . (2) adequate lighting levels shall be provided for the hotel perimeter and adjacent beach frontage and shall be designed to minimize illumination impacts on surrounding land uses; (3) guests shall be informed of beach safety guidelines, use of emergency telephone numbers and telephone extension of the security department; (4) a system shall be established to enable hotel staff to rekey entrylocks whenever a key is lost, rendering previous keys useless; (5) the applicant shall meet with the Police Department for security design assistance and shall prepare and a security plan for Police Department approval prior to issuance of a building permit; and (6) upon completion of the project, the applicant shall provide the Police Department with a design of the project that shall include diagrams of access routes, hotel unit numbers, and any information that might facilitate police response. These measures will avoid or substantially lessen the potential for significant adverse impacts on police protection and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-N) . (0) The Final EIR determined that without mitigation the project could result in significant adverse impacts on street maintenance in the following manner (Final EIR, Volume I, Section - 23 - . . IV-N). During construction, the project would result in shor~-term adverse impacts on street maintenance. Upon project completion, vehicular traffic generated by the project would have a long-term incremental impact on street maintenance. Consistent with Article VI, section 12 of the City CEQA Guidelines and Section 15091 of the state CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to street maintenance: (1) City streets impacted by construction activities shall be rehabilitated as necessary to the satisfaction of the city's General Services Department. Rehabilitation costs shall be borne by the applicant. This measure will avoid or substantially lessen the potential for significant adverse impacts on street maintenance and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-N). (p) The Final EIR determined that without mitigation the project could result in significant adverse impacts on energy in the following manner (Final EIR, Volume 1, Section IV-O). consistent with Article VI, Section 12 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the - 24 - . . potential significant environmental effects identified with respect to energy: (l) the proposed project shall conform to Title 24, Article 2 of the California Code of Regulations and all buildings constructed as part of the proposed project shall be required to comply with the regulations in force at the time of the application for the necessary building permits; (2) the applicant shall prepare support energy analyses of all building designs as part of the proposed project, and consider all economically attractive conservation measures for inclusion in the project; (3) unnecessary consumption of energy during construction, operation and maintenance shall be avoided, siting orientation and design should be done so that energy consumption is minimized, peak energy demand of energy shall be reduced and the use of alternative or renewable fuels and recycling shall be encouraged~ (4) toplighting and sidelighting should be considered for their potential energy savings and, if feasible, shall be incorporated into building design as an effective means of utilizing sunlight to reduce energy consumption. Toplighting involves installation of clear or translucent windows as an integral part of new building roof construction. High performance glass or double glazing shall be installed to minimize heat gain and loss. Effective sidelighting requires strategic - 25 - . . choice in size, shape, number and orientation of windows; (5) Lighting controls shall be installed in the project and shall incorporate an automatic control system for adjusting the lighting level of electric lights; (6) motions sensors-controlled lighting shall be installed in the project, where feasible; and (7) energy saving lamps shall be installed in building operations support rooms. These measures will avoid or substantially lessen the potential for significant adverse impacts on energy and thus avoid or sUbstantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-O). (q) The Final EIR determined that without mitigation the project could result in significant adverse impacts on recreation in the following manner (Final EIR, Volume I, section IV-Q). Consistent with Article VI, section 12 of the City CEQA Guidelines and section 15091 of the state CEQA Guidelines, the city finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to recreation: (1) the city should increase the personnel and equipment required to maintain the beachfront adjacent to the project site if beach-going activity increases sufficiently to require it; - 26 - . . (2) the project shall include appropriate signage along the beach and in and around the Community Center to notify beach visitors that the changing rooms and public restrooms are intended for public use~ Prior to its approval by the City of Santa Monica and the California Coastal commission, a signage program shall be reviewed by the Los Angeles County Department of Beaches and Harborst and (3) public parking lot #530, located at 530 Pacific Coast Highway, shall be striped and its entrance gate relocated to allow lifeguard and paramedic access to the beach. These measures will avoid or sUbstantially lessen the potential for significant adverse impacts on recreation and thus avoid or sUbstantially lessen the significant environmental effects identified in the Final ErR (Final EIR, Volume I, Section IV-Q). (r) The Final EIR determined that without mitigation the project could result in significant adverse impacts on cultural/historic resources in the following manner (Final EIR, Volume 1, Section IV-R, Volume 2, Responses to Comments). Consistent with Article VI, section 12 of the City CEQA Guidelines and section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to cultural/historic resources: - 27 - . . (1) to the extent feasible and consistent with the public access and project design objectives, the proposed project shall conform to the "Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings" which shall include a project design which is historically and architecturally compatible with the existing North House; (2) the proposed project will require a Certificate of Appropriateness by the City's Landmarks Commission and the applicant shall comply with the specific requirements imposed as a result of an issuance of a certificate of Appropriateness with respect to historic preservation; (3) the North House shall be moved in one piece and shall be adequately secured and protected to reduce damage to its interior and exterior. Should it be determined that it cannot be moved in one piece, the Landmarks Commission shall review an alternate approach. The project applicant shall acquire appropriate liability insurance to insure the North House from inadvertent damage or destruction as a result of its relocation: (4) tiles from the existing pool shall be used if feasible and appropriate in the proposed project's pools, or elsewhere on the site; (5) the entire property shall be photo-documented in its current state before development proceeds. A photographic record shall be made of all interior and - 28 - . . exterior historic fabric if preservation is not possible. Photographic documentation shall be of archival quality and delivered to the city upon completion; (6) a plaque commemorating the site shall be incorporated into the proposed project: (7) the North House exterior shall be restored to its original design consistent with preservation practices approved by the Landmarks Commission; (8) the project applicant shall preserve the "primary historic fabric" of the interior elements of the North House structure; (9) the North House shall be rehabilitated including the reconstruction of the chimney, the return of the porte-cochere to its original configuration, rehabilitation of all facades, the restoration of the shutters on the two first floor windows on the northern facade, and removal of the plywood panels on the west balcony and the restoration of the balcony; (10) prior to commencement of construction of the proposed project, the project applicant shall prepare a detailed plan for review by the city of Santa Monica discussing the relocation of the North House. Such plan shall include proposed relocation techniques, rehabilitation measures, and a demonstration of appropriate liability insurance; (ll) during the Landmark Commission review process, the City shall ensure that the new work is compatible with the - 29 - . . North House in terms of size, scale, design, materials, color and texture; and (12) the new construction shall relate to the North House in proportion of openings, width to height relationships of doors and windows, rhythm of solids to voids in the facade, alteration of strong and weak elements, architectural details such as continuity of elements such as cornices, arches, balustrades and the size of building and detail in relationship to people and open space. These measures will avoid or substantially lessen the potential for significant adverse impacts on cUltural/historic resources and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-R, Volume 2, Responses to Comments). (s) The Final EIR determined that without mitigation the project could result in significant adverse impacts on aesthetics in the following manner (Final EIR, Volume I, Section IV-S, Volume 2, Responses to Comments, Letter A). Consistent with Article VI, section 12 of the City CEQA Guidelines and Section 15091 of the State CEQA Guidelines, the City finds that the following changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant environmental effects identified with respect to aesthetics: - 30 - . . (1) the project design shall be visually compatible with development in the surrounding locale; (2) during the project's architectural review approval process, the City shall evaluate building mass, height, materials, colors, and perimeter and exterior and interior landscaping to ensure appropriateness for their location. special attention shall be given to colors and building materials to ensure compatibility with surrounding properties; (3) the project's facade along Pacific Coast Highway shall be broken up with indentations and articulations to mitigate the solid 35 foot mass from the southern property line setback to the hotel auto court area; and (4) the project shall comply with applicable sections of the City's xeriscape ordinance. These measures will avoid or substantially lessen the potential for significant adverse impacts on aesthetics and thus avoid or substantially lessen the significant environmental effects identified in the Final EIR (Final EIR, Volume I, Section IV-S, Volume 2, Responses to Comments). (t) (1) The Final EIR determined that without mitigation the project could result in significant impacts to site right-Of-way and access the following manner (Final EIR, Volume 1, Section IV-J). Left-turn movements from northbound PCB into the project and the beach bikepath need to be addressed to ensure safe access to the site from Pacific Coast Highway and from the beach. - 31 - . . consistent with Article VI, Section 12 of the City CEQA Guidelines and section 15091 of the State CEQA Guidelines, the City finds that the fOllowing changes or mitigation measures have been required in the project which will mitigate or avoid the potential significant adverse access and right-of-way impacts identified: (1) a three-phase traffic signal shall be installed at the project site access point to Pacific Coast Highway, with protected left-turn phasing for left turns from North bound PCH into the project. Costs for implementation shall be borne by the project applicant; (2) applicant shall submit Final design plans to City Traffic Engineer for review and approval; (3) a boardwalk plank from the site to the beach area shall be provided for seniors and those with special physical needs in accordance with the requirements of Title 24 of the California Code of Regulations; (4) the beach bikepath shall be re-routed and reconstructed by the applicant providing a spur to the Community Center for bicycle access; (5) applicant shall comply with all State and City standards, codes and ordinances in the provision of access and parking to the project; (6) appropriate signage shall be installed to prevent pedestrian crossing of PCHi (7) a left-turn storage lane shall be striped with the - 32 - . . exiting painted median on PCH to allow for safe left-turns from northbound PCH; (8) the project shall include appropriate signage along the beach and in and around the community Center to notify beach visitors that the changing rooms and public restrooms are intended for public use. Prior to its approval by the city of Santa Monica, a signage program shall be reviewed by the Los Angeles County Department of Beaches and Harbors; (9) pUblic parking lot #530, located at 530 Pacific Coast Highway shall be striped and its entrance gate relocated to allow lifeguard and paramedic access to the beach; and (10) the project driveway shall be widened to provide two outbound lanes, one exclusive left-turn lane and one exclusive right-turn lane. A minimum of 30 feet is necessary to accommodate both outbound lanes and the inbound lane. These measures will avoid or substantially lessen the potential for significant right-of-way and access impacts and thus avoid or substantially lessen any potential adverse effects identified in the Final EIR (Final EIR, Volume 1, Section IV-J). The three phase traffic signal and left turn storage lane mitigation measures are within the control and jurisdiction of Caltrans and are feasible and can be implemented. (2) Further, the city Council finds that in the event Caltrans does not approve implementation of the mitigation - 33 - ~ . . measures, the Final EIR determined that the development of the project would not result in a significant impact to right-of-way and access to the site (Final EIR, Volume I, Section IV-J) 0 SECTION 5. The Final EIR found that the development of the project could result in a significant impact to traffic cirulation at the intersection of Pacific Coast Highway (PCH) and the California Incline on weekdays during the pm peak hour conditions (Final EIR, Volume I, Section IV-L). Consistent with Article VI, section l3 of the City CEQA Guidelines and Sections 15091 and 15093 of the State CEQA Guidelines, the City Council hereby makes a Statement of Overriding Consideration and finds that the benefits of the project outweigh its unavoidable environmental risks based on the findings in Section 4 (a) and for the following reasons: (1) the project will convert a state-owned, City-operated beach front parcel from a private beach club into a high quality, visitor serving hotel and state of the art community center; (2) the project will deliver financial relief and additional revenues to the City's depleted Beach fund: (3) the project will provide and pay for the following public facilities and programming: (a) increased public parking (100 spaces) during peak beach going seasons: (b) a 200 seat beach cafe and outdoor patio: (c) a public beach facility with restrooms, lockers and showers; - 34 - ~ . . (d) educational programming and activities at the community center to include cultural arts and environmental awareness; (e) shuttle vans to and from remote sites, such as schools, for special classes and activities; (f) a community meeting room and outdoor deck overlooking the grounds and ocean; (g) a children's play area; (h) a sculpture garden (i) beach volleyball facilities; and (j) public art displayed throughout the site, (4) the project will preserve, rehabilitate and open to the public a City designated Landmark, the North House. SECTION 6. Further, the City Council finds that the project will undertake the following mitigation measures which will reduce, although not eliminate, the significant impacts identified with respect to traffic and circulation: (1) the hotel restaurant will not be open for business during the pm peak period of traffic. The hotel restaurant shall not be open for new seating on weekdays from 3:30 pm to 6:30 pm. No employees may travel to or from the site during the pm peak hours of 3:30 to 6:30 pm. (2) the proposed project shall implement a Transportation Demand Management (TOM) Program to reduce site-generated traffic. - 35 - . . These measures will significantly avoid or reduce the potential impact on traffic circulation, therefore, the city council finds that, as substantially mitigated by the above specified requirements, the potential impact on circulation is acceptablee SECTION 7. In the event any of the adverse environmental effects identified in the Final EIR are not considered sUbstantially mitigated within the meaning of Article VI, section 13 of the city CEQA guidelines, and Section 15093 of the state CEQA guidelines, the City Council finds that the benefits of the project outweigh its unavoidable environmental risks for the reasons stated in sections 4 (a) and 5. SECTION 8. Pursuant to Public Resources Code section 21081.6, the mitigation measures required by this Resolution shall be monitored by the city to ensure their compliance during project implementation in accordance with the requirements of the EIR's mitigation monitoring program (Final EIR, Volumes 1 and 2), Development Agreement, Disposition and Development Agreement, and Ground Lease. The monitoring program shall include the filing of annual reports to the City in conjunction with the Development Agreement annual reports and, as required by the Disposition and Development Agreement, or Ground Lease, the designation by the city of staff whose principal function shall be to implement the mitigation measures. SECTION 9. The City Council certifies that the environmental review for the project was conducted in full compliance with State and City CEQA Guidelines, that there was - 36 - '., . . adequate pUblic review of the Draft Environmental Impact Report, that the City council has considered all comments on the Draft Environmental Impact Report and responses to comments, that the Final Environmental Impact Report adequately discusses all significant environmental issues, and that the City Council has considered the contents of the Final Environmental Impact Report in its decision-making process. SECTION 10. The City Clerk shall certify to the adoption of this Resolution, and thenceforth and thereafter the same shall be in full force and effect. APPROVED AS TO FORM: f'~~ ~ ~ Robert M. Myers City Attorney w/ssreso July 2, 1990 - 37 - . . A T T A C H MEN T a C/ED:PPD Council Meeting: July 17, 1990 Santa Monica, California ORDINANCE NUMBER (City Council series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE SANTA MONICA BEACH DEVELOPMENT LIMITED PARTNERSHIP AND THE CITY OF SANTA MONICA THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: SECTJ:ON 1. The Development Agreement attached hereto as Exhibit "A" and incorporated herein by reference between the Santa Monica Beach Development Limited Partnership, California Limited Partnership, and the City of Santa Monica, a municipal corporation, is hereby approved. SECTION 2. Each and every term and condition of the Development Agreement approved in Section 1 of this Ordinance shall be and is made a part of the Santa Monica Municipal Code and any appendices thereto. The City Council of the City of Santa Monica finds that public necessity, public convenience, and general welfare require that any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the - 1 - , , 6 a ~ . . a provisions of this Development Agreement, to the extent of such inconsistencies and no further, be repealed or modified to that extent necessary to make fully effective the provisions of this Development Agreement. SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provision of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to give full force and effect to the provision of this ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not render invalid the remaininq portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Mayor shall sign and the city Clerk shall attest to the passage of this Ordinance. The city Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. - 2 - . . 'I/o-o/? ~ e, A T T A C H MEN T 9 C/ED:PPD Council Meeting: July 17, 1990 Santa Monica, California RESOLUTION NUMBER (City council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AUTHORIZING NEGOTIATION AND EXECUTION OF A CONCESSION AGREEMENT AND GROUND LEASE BETWEEN THE SANTA MONICA BEACH DEVELOPMENT LIMITED PARTNERSHIP AND THE CITY OF SANTA MONICA WHEREAS, California state law and the city of Santa Monica City Charter permits the City to enter into a Concession Agreement and Ground Lease for the development of State owned, city operated property; and WHEREAS, the state of California has directed the city of Santa Monica to no longer permit a private beach club to operate as a concession at 4lS Pacific Coast Highway; and WHEREAS, the state of California has directed the city of Santa Monica to encourage year round public access and to generate concession revenues of at least $500,000 yearly for the City'S Beach Fund on the site; and WHEREAS, the City prepared a Request for Development Proposal (RFP) and released the RFP in April 1987 inviting proposals to - 1 - . . increase public access to the site and generate a minimum annual ~ revenue of $500,000 for the City.s consideration~ and, WHEREAS, the City carefully evaluated the ability of eleven proposals to meet or exceed the RFP objectives and on June 14, 1988 selected the Santa Monica Beach Development Partnership to enter into exclusive negotiations of lease, development and other agreements necessary for development of the propertYi and WHEREAS, on July l7, 1990, the Ci ty Council conducted a properly noticed public hearing on the Concession Agreement and Ground Lease between the Santa Monica Beach Development Limited Partnership and the City of Santa Monica at which it received and reviewed the terms of the Concession Agreement and Ground Lease; and WHEREAS, the public health, safety, and general welfare of the citizens of the City of Santa Monica will be furthered by approval of the Concession Agreement and Ground Lease, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council authorizes the City Manager to negotiate and execute the Concession Agreement and Ground Lease and any exhibits thereto with the Santa Monica Beach Development Limited Partnership for the parcel at 415 Pacific Coast Highway consistent with Exhibit ItAIt. - 2 - t . . .). SECTION 2. The City Clerk shall certify to the adoption of this Resolution, and from then on the same shall be in full force and effect. APPROVED AS TO FORM: (l....vt~ 'N'- ~ ROBERT M. MYERS city Attorney - 3 - . . A T T A C H MEN T 10 CjED:PPD Council Meeting: July 17, 1990 Santa Monica, California RESOLUTION NUMBER (City Council series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AUTHORIZING NEGOTIATION AND EXECUTION OF THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE SANTA MONICA BEACH DEVELOPMENT LIMITED PARTNERSHIP AND THE CITY OF SANTA MONICA WHEREAS, California state law and the City of Santa Monica City Charter permit the city to enter into a disposition and development agreement with a private party for the development of State owned, City operated property located at 415 Pacific Coast Highway; and WHEREAS, the state of California has directed the City of Santa Monica to no longer permit a private beach club to operate as a concession at 415 Pacific Coast Highwayt and WHEREAS, the State of california has directed the City of Santa Monica to encourage year round public access and to generate concession revenues of at least $500,000 yearly for the City's Beach Fund on the site; and WHEREAS, the city prepared a Request for Development Proposal (RFP) and released the RFP in April 1987 inviting proposals to - 1 - .. . . . ~ ~ increase public access to the site and generate a minimum annual revenue of $500,000 for the City's consideration: and WHEREAS, the city carefully evaluated the ability of eleven proposals to meet or exceed the RFP objectives and on June 14, 1988 selected the Santa Monica Beach Development Partnership to enter into exclusive negotiations of lease, development and other agreements necessary for development of the property: and WHEREAS, approval of a disposition and development agreement is categorically exempt from the requirements of the California Environmental Quality Act: and WHEREAS, on July 17, 1990, the City council conducted a properly noticed pUblic hearing on the Disposi tion and Development Agreement between Santa Monica Beach Development Limited Partnership and the city of Santa Monica at which it reviewed and approved the terms of the Disposition and Development Agreement; and WHEREAS, require the Agreement, the public health, approval of the safety, and Disposition general welfare and Development NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council authorizes the City Manager to negotiate and execute the Disposition and Development Agreement with the Santa Monica Beach Development Limited Partnership for - 2 - f> . . ~ ~ SECTION 2. The city Clerk shall certify to the adoption of this Resolution, and from then on the same shall be in full force and effect. APPROVED AS TO FORM: _~_~__ h ~ ~ ~~lc U ROBERT M. MYERS City Attorney - 4 - . . A T T A C H MEN T 11 CjED:PPD Council Meeting: July 17, 1990 Santa Monica, California RESOLUTION NUMBER (City Council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA APPROVING AN AGREEMENT WITH THE STATE OF CALIFORNIA CONCERNING STATE LAND WHEREAS, the City of Santa Monica and the state of California acting through the state Department of Parks and Recreation entered into that certain Operating Agreement dated as of September 1, 1981; and WHEREAS, the city of Santa Monica and state of California wish to clarify and confirm certain issues concerning said Agreement, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council authorizes the City Manager to execute the Agreement with the State of California attached as Exhibit "Au. - 1 - .. - ~ ~ . .. . . .. SECTION 2. The city Clerk shall certify to the adoption of this Resolution, and from then on the same shall be in full force and effect. APPROVED AS TO FORM: ~~" ~ ~ ROBERT M. MYERS city Attorney - 2 - M.EM.ORANDUM /!tDD -/6 f-c. //-8 JUL 1 7 1990 I/I~"- O/~ DATE: July 17, 1990 TO: Mayor and city council FROM: Robert M. Myers, City Attorney RE: Development Agreement for Santa Monica Beach Hotel and Community Center The purpose of this memorandum is to provide the City Council wi th information about certain legal issues pertaining to the development agreement for the Santa Monica Beach Hotel and Community Center ("project") proposed to be entered into between the city and the Pacific Beach Development Limited Partnership ("developer"). Specifically, the opinion discusses the impact of pending initiatives on the development agreement and the legality of paragraphs 42, 43, and 44 relating to revenue targeting. By memorandum to the Planning Commission dated May 23, 1990, the city Attorney analyzed the application of the Santa Monica Bay Ordinance of 1973 to the development agreement. (A copy of the memorandum to the Planning commission is contained in Attachment 1.) The conclusions contained in this memorandum were communicated to the developer in May, 1990. The opinion has been delayed to give the developer an opportunity to provide the City Attorney with input prior to the public release of the opinion. 1. November Ballot Measures. Two initiatives have qualified for the November, 1990, ballot which, if enacted, would potentially affect the current Sand and Sea Club site. The so-called "Save Our Beach" ("SOBII) initiative seeks to prohibit hotel development at this location, while the initiative sponsored by "Santa Monicans for a Livable Environment" ("SMLE") may permit hotel development. While these initiatives have somewhat cross purposes, they each suggest through their qualifying for the ballot that a substantial number of Santa Monica voters are interested in having a say on when and how beach-area property is developed. However, the approval of a development agreement prior to the November election may limit the ability of the people to have an effective say by conferring upon the developer a vested right. Absent the approval of a development agreement, a developer secures a "vested right II only after incurring expenditures or 1 AIiD ~ ;>- e.. /1-$ J U L 1 7 19M liabilities following the final governmental approval of the proj ect. In Avco Community Developers, Inc. v. South Coast Reqional Commission, 17 Cal. 3d 785, 533 P.2d 546, 132 Cal. Rptr. 386 (1976), the California Supreme Court stated: It has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit. Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied. Id. at 791, 553 P.2d at 550, 132 Cal. Rptr. at 389. (Given the proposed schedule for the project, it is unlikely that a vested right would be obtained under this test prior to the November election.) In 1979, the California Legislature enacted legislation authorizing cities and counties to enter into development agreements with developers that would be binding notwithstanding subsequent changes in the law and notwithstanding the fact that the developer did not otherwise have a "vested right." (Government Code Section 65864 et seq.) Al though there is a general principle that contracts purporting to limit the government's right to exercise the police power in the future are invalid (see, e.q., Delucchi v. County of Santa Cruz, 179 Cal. App. 3d 814, 225 Cal. Rptr. 43 (1986)), it is generally believed that a development agreement confers a statutory vested right that may not be taken away by subsequent exercises of the police power by the local government body entering into the agreement. The question whether the approval of a development agreement will confer a vested right for the Santa Monica Beach Hotel and Community Center is complicated by the pending initiatives. The California Constitution reserves to all voters the right of initiative. The right of initiative has been called "precious to the people" and is one which courts are zealous to preserve to the fullest both as to the spirit and the letter of the law. Schmitz v. Younqer, 21 Cal. 3d 90, 92, 577 P.2d 652, 654, 145 Cal. Rptr. 517, 518 (1978). Indeed, numerous court decisions have recognized that this right should be liberally construed in favor of allowing the voters to have a say on matters that the voters consider to be important. See, e.q., Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore, 18 Cal. 3d 582, 557 P.2d 473, 135 Cal. Rptr. 41 (1976). Put in the context of the 2 ci ty' s approval of the proposed development agreement, the question arises whether or to what extent the city's action will prejudice the initiative process and, as a result, thwart the voters' reserved prerogative to adopt legislation that affects the Sand and Sea Club site. No court has addressed this issue. Under the state Elections Code, no statute expressly prohibits a City council from adopting an ordinance (here, the development agreement) while initiatives potentially dealing with the subject of the development agreement are pending. Unlike a pending referendum which upon qualification for the ballot halts implementation or adoption of legislation, a pending initiative imposes no similar impediments. Nonetheless, a strong argument can be made that the public policy in support of the initiative right cannot be made compatible with public officials acting in advance of an initiative to effectively defeat the votersr ability to legislate. If by approving a development agreement, a vested right is granted to a developer, which an initiative could not dislodge, then the pending initiative is made meaningless and the constitutional power of the people to legislate through the initiative process is foreclosed. Should the SOB initiative become law in November, litigation would likely commence to resolve an array of legal issues to determine whether the initiative or development agreement controls. In order to avoid this litigation and in order to ensure that the constitutional right of the people to adopt legislation by initiative is fully protected, it is recommended that the development agreement, lease and other documents, if approved, should provide that they are subj ect to the November election results. since the City Attorney commenced preparation of this memorandum, some members of the City Council have indicated that they desire the project to be subject to the outcome of the November elections. Mayor Pro Tern David Finkel has requested that we outline the various options available to the City council if it decides to make the project subject to the November elections. We have identified four alternative approaches that the City Council could take to make the development subject to the November election. First, the city council could provide that the development agreement shall be subject to any changes in the law that occur in the November election. This approach would preclude the developer from obtaining a vested right before the election. However, this approach could make the courts the final decision-maker on whether the initiative measure applies to the project, since the developer might assert that local zoning initiatives cannot apply to state property and commence litigation challenging the applicability of 3 any approved initiative to the property. (The developer, for example, asserted that the Santa Monica Bay Ordinance of 1973 could not apply to the property because the city was preempted by state law from applying such local ordinances to the subject property.) Second, the City Council could place the development agreement directly before the voters for a decision on whether the specific project should be approved or disapproved. Third, the City Council could provide that the development agreement, lease and other documents shall be void and of no further force or effect if a majority of the voters voting on the SOB initiative at the Regular Municipal Election on November 6, 1990, vote in favor of such initiative and the SMLE initiative either fails to be approved or is approved with less votes than the SOB initiative. This approach resolves the potential conflicts between the SOB and SMLE initiatives in favor of the measure that is approved with the most votes. Fourth, the city Council could provide that the development agreement, lease and other documents shall be void and of no further force or effect if a majority of the voters voting on the SOB initiative at the Regular Municipal Election on November 6, 1990, vote in favor of such initiative. This approach resolves the potential conflicts between the SOB and SMLE initiatives in favor of the SOB initiative, which expressly prohibits hotels on the subject property. 2. Proorietv of Revenue Targetinq Provisions. Paragraphs 42, 43, and 44 of the Development Agreement attempt to target various city revenues from the proj ect. These provis ions are inappropriate in a development agreement. The purpose of the development agreement is to enter into an agreement for "the development of the property.1t Government Code Section 65865. The appropriate contents of a development agreement are set forth in Government Code Section 65865.2: A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and may include provisions for reservation of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary 4 actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that the construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time. The agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. The purpose of the legislation authorizing development agreement was to respond to concerns in the building industry that there be certainty in the development approval process. Holliman, Development Aqreements and Vested Rights in california, 13 The Urban Lawyer 44, 45 (1981). Government Code section 65864 states the purpose of for the law and states in subdivision (b): Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with the existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. Paragraphs 42, 43, and 44 fall well-outside the bounds of what is appropriately included in a development agreement. Paragraph 43 mandates that for a ten year period, various revenues obtained from the lease of the property shall be deposited into the Beach Fund. This requirement currently mirrors ci ty obligations pursuant to an operating agreement with the state of California dated September 1, 1981. Paragraph 44 mandates that for a ten year period the transient occupancy tax generated from the project shall be allocated to Bay restoration, certain park purposes, and the Santa Monica-Malibu Unified School District. Both paragraphs 43 and 44 "are solely for the benefit of members of the general public" and the developer expressly waives any right to enforce them. In effect, the developer is seeking to confer a vested right upon members of the public which may not be changed by subsequent ordinance or initiative. The vehicle of development agreement cannot limit the authority of the City to take subsequent action in areas unrelated to conferring upon the developer a vested right 5 for the project. Government Code section 65866 makes clear that revenue targeting provisions of the development agreement would not preclude subsequent legislative action by the City to change the method of allocation: Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subj ect to the development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. Our schools and other public services clearly suffer from a lack of financial support by the taxpayers of this state. The City clearly has the power to assist the school system with financial aid. However, the development review process is not the proper forum for this financial assistance. 6 ATTACHHENT 1 HEMORAHDUH DATE: May 23, 1990 TO: Planning Commission FROM: Robert M. Myers, City Attorney Development Agreement for Santa Monica Beach Hotel and Community Center RE: The purpose of this memorandum is to provide the planning commission with information about the application of the Santa Monica Bay Ordinance of 1973 to the development agreement for the Santa Monica Beach Hotel and Community Center ("projectU). This issue arose during the course of negotiations with the Santa Monica Beach Development Limited Partnership ("developern). A separate memorandum is being prepared for City council consideration on the impact of pending initiatives on the development agreement and on the legality of paragraphs 42, 43, and 44 relating to revenue targeting. The Santa Monica Bay Ordinance of 1973 was adopted by the citizens of Santa Monica on April 10, 1973. with certain limited exceptions, the ordinance provides that U[n)o person shall construct, build, or assemble any building, pier or island seaward of the mean high tide line, unless such person shall have obtained a permit from the City Manager." (Section S(A).) No permit may be issued by the city Manager unless "[t]he voters of the city of Santa Monica, by a majority vote specifically approve the proposed island, pier, or building in an election wherein the proposal is specifically described in the ballot measure." (Section 5(B) (2).) In addition to other remedies, lI[a]ny resident of Santa Monica may bring a civil action to enjoin any violation of this ordinance.1I (Section 9.) The mean high tide line for purposes of the ordinance is the 1921 mean high tide line as set forth in Municipal Code section 10229. (Section 4(B).) For purposes of the ordinance, "building" is defined as follows: "Building" is a structure have supported by columns or walls. includes structure. (Section 4(C).) a roof Building 1 A portion of the subterranean parking structure will extend approximately 100 feet seaward of the mean high tide line. Thus, a question has arisen whether a permit is required in accordance with the terms of the Santa Monica Bay Ordinance of 1973. It is well-established that in seeking to interpret a statutory scheme, one must first turn to the words of the statute itself. See Carroll v. state Bar of California, 166 Cal. App. 3d 1193, 1200, 213 Cal. Rptr. 305, 308-09 (1985). Indeed, when the words of a statute are clear and unambiguous, there is no need to undertake statutory construction. Tiernap v. Trustees of Cal. st. University, 33 Cal. 3d 211, 218 655 P.2d 317, 322, 188 Cal. Rptr. 115, 120 (1983); Mitchell v. Franchise Tax Board, 183 Cal. App. 3d 1133, 1136-37, 228 Cal. Rptr. 750, 752 (1986). The clear meaning of the words themselves controls. Berain v. Portman, 141 Cal. App. 3d 23,26,190 Cal. Rptr. 81, 82 (1983). The clear provisions of a statute cannot be enlarged under the guise of statutory construction even if such an interpretation would bring about a more desirable or equitable result. Comite de Padres de Familia v. Honiq, 192 Cal. App. 3d 528, 532, 237 Cal. Rptr. 517, 518-19 (1987); Simpson v. Unemployment Ins. Compo App. Board, 187 Cal. App. 3d 342, 351, 231 Cal. Rptr. 690, 694-95 (1986). The attorney for the developer has asserted that this ordinance is ambiguous as applied to this project: There are at least two ambiguous prov1s1ons of the Bay Ordinance which relate to the subterranean garage at the Project. First, the Bay Ordinance prohibits construction of buildings seaward of the mean high tide line. However, it is unclear whether this prohibition applies to below grade construction as well as above grade construction. Second, the term ubuildingU is defined in the Bay Ordinance as Ua structure having a roof supported by columns or walls. Building includes structure." It is unclear whether a subterranean garage is a building or structure within the meaning of the Bay Ordinance. A subterranean garage does have walls which support a ceiling. However, it is unclear whether a ceiling would be classified as a "roof" and the term roof is not defined by the Bay Ordinance. (Memorandum to Robert M. Myers from Christopher M. Harding dated May 1, 1990, at 12-13.) Based upon this ambiguity, it is argued that a subterranean parking structure is not a building within the definition of the ordinance based upon the stated purpose of the ordinance: 2 It is clear from these sections that the central purpose of the Bay Ordinance was to prohibit structures interfering with the view of the Santa Monica Bay. A subterranean garage cannot interfere with any views since it is below grade. 14. at 16. Among attorneys in the city Attorney' s office there is substantial disagreement about whether the ordinance is ambiguous and, if so, whether the purpose of the ordinance includes prohibi ting subterranean parking structures. Because of this disagreement, we cannot predict with certainty how a court might interpret the ordinance as applied to this project. A reasonable argument can be made that the ordinance is not ambiguous. The developer's attorney asserts that the ordinance is unclear whether it applies to below grade construction. However, the ordinance is clear that it applies to construction seaward of the mean high tide line. As Section 5A provides, II [n]o person shall construct. . . any building, pier, or island seaward of the mean high tide line. . . . U UnderWater or underground facilities would, in many situations, be "detrimental to the ecosystem of the Santa Monica Bay." (Section 2(E).) Likewise, a subterranean parking structure would seem to fall squarely within the definition of building. The attorney for the developer argues that the term building is ambiguous because it is unclear whether or not a subterranean parking structure has a roof and roof is not defined in the ordinance. However, the ordinance provides in Section 4 that U[o]ther words and terms not specifically defined herein and not defined elsewhere in the Santa Monica City Charter, City Code, or California or federal law shall be defined according to common usage consistent with the purpose of this ordinance.u The City's zoning ordinance currently defines "roof" as U[t]hat portion of a building or structure above walls or columns that shelters the floor area or the structure below." Municipal Code Section 9000.3. Under this definition, a subterranean parking structure appears to have a roof. Moreover, even if the ordinance is ambiguous, the purposes of the ordinance would appear to be frustrated by many types of below grade construction. The ordinance either applies to all below grade construction seaward of the mean high tide line or does not apply to any below grade construction. Prohibiting all below grade construction seaward of the mean high tide line is fully consistent with the purpose of the ordinance to "preserve the natural beauty and environment of Santa Monica Bay." In the opinion of the city Attorney, there is a reasonable possibility that the ordinance would be interpreted by the court to prohibit the construction of the subterranean parking structure seaward of the mean high tide line without approval of the voters. 3 However, recognizing the substantial disagreement among attorneys in this office, the City Attorney cannot give an unqualified opJ.nJ.on that the ordinance precludes the subterranean parking structure. Accordingly, the development agreement provides for an alternative parking scheme in the event a court does conclude that the structure seaward of the mean high tide line is prohibited without voter approval. (The attorney for the developer has also asserted that the City is preempted by state law from applying the ordinance to this project. This argument has no merit. Insofar as the City of Santa Monica is involved in the approval of the project and the issuance of permits therefor, such approvals and permits must be consistent with all provisions of city law.) 4 . tjIO/{J/? . C/ED:CPD: w/ssbron July 17, 1990 Santa Monica, California INFORMATION ITEM TO: Mayor and City Council FROM: City staff SUBJECT: Response To June 29, 1990 Letter From Clare Bronowski INTRODUCTION This report provides the council with clarification of the issues raised in the June 29, 1990 letter from Clare Bronowski to the City Council. The issues raised include the following: 1. Necessity for Recirculation of the Finai EIR. 2. Legal Inadequacies of the EIR. 3. Appropriateness of a Development Agreement. 4. General Plan Consistency 5. Lack of city Control and Developer's Guarantee 6 Proposed Additional Conditions and Hi tigation I1easures. Issues 1 through 4 The first four issues were raised in connection with the Planning Commission review of the project and as a result a response was prepared by Carlyle Hall and city staff. The response from Carlyle Hall dated May 30, 1990, and the portion of the May 30, 1990 Planning Commission staff report on the use of development agreements are still applicable and are attached for review by the Council. - 1 - . . within issue No.2, Legal Inadequacies of the EIR, Ms. Bronowski has brought up several new points. She questions the EIR analysis and finding that the addition of l60 working fireplaces at this location will not have an adverse air quality impact. The air quality analysis cited on page IV-C-16 of the DEIR calculated fireplace emissions under worst case conditions. Fireplace emissions are highly variable and are a function of both wood characteristics and operating practices. In general, condi tions which promote a fast burn rate and a higher flame intensi ty will enhance secondary combustion and thereby lower emissions. Mitigation measures require that all fireplace designs shall be of a type that facilitates fast burn rates and high intensity flames, particularly through the use of hearth insert type equipment. As a result, no significant impacts are anticipated. In relation to site access, Ms. Bronowski states that the EIR inadequately addresses the impact from vehicles entering and exiting the project on Pacific Coast Highway, that the EIR does not provide an analysis of an additional driveway exit lane on PCH traffic, and that the Development Agreement does not provide assurances that the signal coordination plan will be implemented by the developer. The FEIR provides a detailed traffic study that analyzes project traffic on Pacific Cost Highway. In addition, response to comments (Q-3), letter Q, Palisades Beach Property Owners Association, provided the analysis and determination that the proj ect driveway should be widened to accommodate two outbound - 2 - . . lanes to facilitate traffic turning south towards Santa Monica. The analysis concluded that the additional right turn lane would permit right turn movements to exit the site without waiting for left turning vehicles, thus reducing delays to the right turning traffic, decreasing the amount of vehicles which may be forced to queue within the project site, and decreasing the amount of green time which would be allocated to the driveway and thereby creating delays along Pacific Coast Highway. Attachment D to the Development Agreement, Right of Way and Access, requires the developer to prepare and implement a signal coordination plan prior to the installation of the traffic signal. The letter questions the Resolution certifying the EIR, specifically, Section 4 (t) (2), stating that the finding is unacceptable and is not supported by the evidence in the record. The Resolution contains two findings relating to site access and right of way, Findings 4 (t) (1), and 4 (t) (2). The first finding sets forth ten mitigation measures that were identified in the EIR to reduce impacts related to access and right of way. The three phase traffic signal is one of the ten proposed measures. The second finding states that, in the event Cal Trans does not approve the three phase signal, and therefore it is not installed, the project will not create a significant impact. 'Ihis conclusion is substantiated in the FEIR Volume I, section IV-L. The FEIR analyzed the project without the installation of the signal and found that no significant impacts would occur due to a lack of a signal. However, to improve access to and from - 3 - ---- . - v - . .Ul'12 00:9 pUl? .m. 12 00: 2:1 JO s..:moq al.r~. ua6Jo\:+aq .J:a".:\.ua::> A=+TUnUIUlo;J att=+ ".:\.~ ToqooT~ JO aT~s al.!:+ s:+lUl1T va aq+ aou1s aTqe=+dao:::lE ".:\.ou 5T u01=+TPuo~ aq~ : (~)E# uOl:+TPuo::> .=+UE:::l1Tdde aq=+ =+ou PUE 5ue~~ Te:) JO UOT+~lPsT~n~ al.!=+ .J:apun s1 =+1 aou15 =+~a~o~d al.!:+ 0+ pa~uTT aq ".:\.OU PTnotts ueTd u01".:\.l?U1P~OOO Tl?U015 att=+ JO uOT=+e=+u6UlaTdmI , Teuo1s aq=+ }O u01:+~.J:ado 0=+ ~oT~d UETd u01=+12zTuo.J:q:::lUA5 reuo15 E JO U01:+12.;[-eda~d aq".:\. sa..1:plba.1 va aq,r, , u.J:a:moo s1Q:+ ssa.1pp-e 0=+ a5en5ul21 sU1e=+uoo Xpea~T12 va 6tt::j. aouls alq~=+daooE ::j.OU 51 pasodo.J:d 5-e uOT=+ TPUO:::l aq.r, :Z# uOT=+lpuo;J '=+lUl.1ad nUTP1Tnq 12 JO aou12nssl 0+ .;[01..1:d apEll! aq +5nll! au~t U01=+E~aTa:::lOE al.I=+ UO UOTST:::lap ati".:\. aouTs atql2=+daooe 51 U01:+TPUO:::l al.!~ :1# uO'T".:\.1Puo::> :aSUOd5a..1: S,}}12+s sau11=+no oUT~OI10J aq,r. 'su01~lPuOO T12uol=+1Ppe 8 S:+511 ..1:6:+:+a1 sll~s~ouo~g JO 01 ao12d 5a..1:nSeaw uOl:+EoT+1W pu12 suo1=+1puoJ lEu01=+lPPV pa5odo..1:d ':+uaUlaa~ov :+uamdOTaAaa pu12 UOT:+lsodsTa aq=+ pu12 Jase6~ puno..1:~ l=+uamaa.J:ov u01ssaouoJ 8l.!:+ ulq=+r~ paSSa.1ppE uaaq aAEq s=+uammoo asaq+ JO =+50W '0661 JE AlnE uo :+..1:oda.J: JJl2+s TTouno::> A:+TJ aq::j. JO aSEaTa~ 0:+ .J:oT~d pa+JE~p se~ ..1:a=+=+a1 eq,r. aa+UE~BnD sl~adOlaAaG pUB 10..1:".:\.uo::> A=+l::> }O ~:::lE~ .paAo.J:ddE =+OU 51 TEUDrS aq::j. :+uaAa al.!=+ ur padoTaAap aq ABU! :+oa~o.1d aq:+ JEo1uoW E::j.UES JO ^=+ T::> aq=+ JO 10.:quO:::l aq=+ u1q=+ 1/0\ :tOU PUE ' 5U1:?.:::l:,L 1'e::> JO U01=+o1Ps1.1n~ aq=+ .J:apun 51 TEUDrS aq:+ asnEoaq ".:\.nq 'paTTe=+suT aq PTnoqs reuDT5 aq=+ =+l2tt=+ 5a:+l2=+s '8:l3: aq=+ oUrAJ1=+.J:ao uOT=+nTosa.J: att=+ Je.J:OJ8..1:aq,L . TEUDrS aSEqd aa.:n.{:+ aq~ JO u01=+E1Tl?".:\.sul aq=+ a~nSEam UOT:+EoT-=+Tm E 512 papuammoOa.J: ~I~~ a~:+ a:+ls aq=+ Condition #3(b): condition #3(c): Condition #3(d): Condition *3(e): Condition #3(f): Condition #3(g): Condition #4: Condition #5(a): Condition #5(b): Condition #5(c): Condition #5(d): condition #6: Condition #7: . . The condition is not acceptable since the DA limits the sale of alcohol in the Hotel between the hours of 2:00 a.m. and 6:00 a.m. The condition is acceptable and is already included in the DA. The condition is not acceptable. If hours are to be limited, they should be at least from 7am to 9 pm. The condition is not acceptable. The DA requires the developer to meet with the Police Department for security design assistance. Prior to issuance of a building permit the Developer shall receive Police Department approval of a security plan for the project. The condition is not acceptable. Exhibit "0" to the DA (General Services requirements) requires a twice daily litter cleanup effort during the summer and once daily during the winter with 500' of the project. The condition is not acceptable or necessary. Any activity or use will comply with the provisions of the Noise Ordinance. The condition is not acceptable. Sufficient provisions exist in the Concessions Agreement, Ground Lease, and the Disposition and Development Agreement. The condition is acceptable. The condition is acceptable provided the following change is made: Haul trucks shall be located at least 100 feet from the south property line and 50 feet from the north property line. The condition is acceptable. The condition is not acceptable. The DA requires pile drilling with tie down anchor method to minimize noise impacts. The condition is not acceptable. requires all subterranean parking located at least 50' away from residential properties. The DA vents be adjacent The condition is not acceptable. The DA requires all kitchen vents to use a charcoal or similar air filtration system. - 5 - Condition #B: . . The condition is not acceptable. The DA requires outdoor lighting to be reduced after peak hours. Outdoor lighting of the Hotel and Community Center is restricted to security lighting between the hours 12:00 am and 6:00 am. - 6 - " . HALL t3 PHJLUPS I . I I I , .JC.....N PI Pt-d...:"IP5 C.....OL,.--...{:.. ...... IHA_Lt ..,JR _'~.... ~T I. (; ;:"_=-5" ~1...1 ......"Y ~O'-"S~ CC,,!:,.. A1"iCR"l~,{S .1.1 t.....'N IOgSI W~5T riCO Il OUL.EVARC:. THIRC F'1..0CR Lc~ ^"Cll..f.~. UU1ClI.JoolrA 90064.<!IS6 :r Cwl,:N-SCl. G~OFFR~Y ~:::""""N 11......11'.:1::::", go I'\,R.....",.,~.A CYNTHI... D ilOSill"S Te:L~I'..ONl. [2.31 "70-20C, n::~c<;c",c~ IZI;]l "7"-7009::1 P',jIlt.JC I...T!:~E:S~ V:~.':'I""G r'[_l-OWS ~Y..... E e~-'s A""N .! C;.R....-=-:i~ C":"';;l:L)ot .... ~Cp') l.AI,..:~::" ^ SA._'r--tCEnS Hay 30, 1990 VIA p~X (2~3) ~'-i-0992 S~n~~ Xonica ?lan~i~g CC~i5Sio~ ~anta Monica ci~y p.all 2685 ~aln Street San~a ~cn~ca, calirOT~ia Re: ~IR Issues Rec2rc~ng ~~e PrcDcsec Sa~ta ~or.ica 3e2ch Rote~ and CO~~~hity Certe~ -- EI~ No. S~8i $c~ No 88~3027 Dear CC~:SSloners: This flY? has be~n r~talhed bv the Sa~~a Monica c~tv ~~.o~np'Tls C?fiC~ -5 -~eCl~' c~uns~l ~e~aYc',~c c~~~l~anc~ .....'-'- .J.... -;1 ..L.__ - c:. ~,:; c:;o..... k.J .. Il,;.. - ':1 - _....... -..}~_~...... --:"' ....... ~i~h t~e califoy~ia r~viron~er.~al Quallty Act's envirc~€n- tal i~Dact reno~t re~~ir€~en~s as thev relate to the Ci~V'S ~ ... - ... t'" nrocessir.c of the Sa~~a Monica Beach Hotel a~d Co~u~ity Cen~er. i have been asked to respond to three ~Oln~s rega=ding CEQA raised In the }~y 18, 1$90 letter ~TiLte~ ~y ~~~orney Claire Brcnowskl ~~ ~ehalf of the palisaees Reach ?roperty Ow~ers Association. ., - . Adem13CY o! th~ Public Review P~r~cd fer t~9 ?inAl E'R ?rior to t~e ~lar.i~q Cc~.lsGion H~ar~~qs. Ms. Bronow~k~ cite& th~ Clty1b ~ay 9, 1990 lette~ that adv~sec of thQ availablli~y of t~a Final E:~ a~d notlfiec the publlc of the Plann~ng CC~~~65~cnI8 ~ay 23rd ?~bl~c hearing rQgarding thQ Hotal and Ccmmun~ty ~er.~~r. She a~~Qrts (at pp.~-2) that this limited e~ount cf tl,-e - Santa Monica Plann1ng Com~isslon }l'..ay 30, 1990 Page 3 2. :!ihether the Plnal EIRI s Disc~s~~()!1 AlteTnatives Is ~de~J~tp. -j of Pra;ect I i , I Ms. Brono~skl asserts (at pp. 5-6) that the Final E~R'S discussion of proJect alternatives ~s ~hade~~a~e uhd~r C:::QA because, IJthe.re is a ca"rlsistent r~11ance on;the r.;cuc_c fiscal benefits of reduced develop~ents as a ba~~~ to rwJoct alternatJ..ves" chd because tbe C.1.SCClSS.:lOn of alternat,::"vd s.:~es is lIc~rsary ar..d inac.e.sc.atell due to th.. pro]Gct1s "sit... specific objectives." i l The State CEQA Gci~~l~neb spGci:y that~~~e EI~ r i I ; J :ilUbt: Cescri~6 a ~a~ce of ~e~3Qne9le alte~nat~ves to the proJect, or to the location of the proJect, which could fe~Slb~Y attain the basic g9~ective~ cf ~he p=cject er.d ev~lu~~e the corr?e~at~ve te~1~s o~ ~he e!.ltern1::.t~ve:s. ~ 15l26(d). (~~phasls sup~l:ed.) T~e calitorr.ia :s~p~e~e Ccu=-t rece:1tly st:=essed tha-: "one of [ilil :E!R'S] rr;ajoy f~~C~lCDS. . is to E~SU~~ t~at ~ll reasci~ble I 21terT-a~ives are ~noroughly assessed by the ~esp~ns~le c==icial." :..aurel neiqbts I~?rOVel'l'e'1L ;'.ss I n v Recents o.f t~e Dniv. of ca11tcrnia (~S89) 47 Cal.3d 376, 25~ ca~.xpt~. ~26. (E."lp~asis suppl.ied..) i ~e~e, the flnal ErR Clscu5sed a broad ra~~e cf alterr.atlves encc~passirg several dlfferer.t developien~ and "-on-cevelc?~ent opclons. Notably, even tbo~Sh the sta~e Deoa~ment of Park and Recreation (vh~ch o~r.s the prope~ty ~~.q~estlon) has ~andated that any deve~o~r.ent of t~e slte ~~st obta~n a f2~~ return O~ the fa~r ~a~ke~ value of ~he croc€~v cr.d has soecified t~at such a falr re~uYn ~oulc ~e ~t ieast $.5 r.illion ann~ally, the ErR c~r.s~=erea sc~e alternatives t~at, ~Dcn ar.alysis, would ~ct a~~aLrc ~~a~ speclfied f~scal ObJEctlve. Tte State ~as in=crned the Clty that the II fal.r returnl1 re~.:dre:!!:ent l5 e::nbac.led In s~2te leg~slaticn and that It ~s deslgnec to prEven~ agalns~ t~llC subsidization of a ccm~Erci~l ente~~~lse thToua~ a iess-than-fair-rra~ke~-value lease to the c~~~~rc~l Q~ti~y_ T~e staLe has also incica~ed ~ts prefer~nce fo= a ~e~u~ tha~ ~ould exceed the ~ini~~ fair ret~=~ so as tc gQ~QratQ funds for a broad gnv~ron~ental purpo~Q: prov~ci~~~ cperational and ~3~4te~anCQ f~~d~ ~cr ~hQ bta~a ~ach~~ .i I I i .-1 b .. I operate~ y t~e c~ty. Nothlng In CEQ~ wc~ld precl~de t~e C~ty fro~ t~ki~g into aCCGur.t these s~a~e speci!1ed project objectives wher. evaluating Lhe various projec~ alternatlves. T~e city may consider and chose a proJect alte~native that would ~o~ meet these p~oject objectives, but any\such cho:ce would ce sUbject to the state's ultl=ate reJection cf that al~ernative due to the state leglslatlon and pOllcies ncted above. FU~ther, it appears that the Clty ltself !co~curred in theSE project c~Jectlves when it cir~~lated ~e RFP regarding t~e SUbjEct pa~cel. I I It should also be noted that the EIR evaluatec several off-s~~e alterratives ter a proposed hct~l p~oJectJ even t~cugn such off-slte alternatlves would c~2arly not achieve the site-s;ec:f:c objectives rcndated by !the sta~e regarding ternlnatlon of pr~vate club uses of t~e state awned la~d in question and regarding cbtalnin~ a ifai~ econonic return fo~ that land. A~a~n, ~~e ElR he~e has gone beyond the C2QA Guidel:nes Ye~~~re=ents by cGnslderir.g al te!'hatives that would net 2r.eet t.~ese baslc :proJ'ect obJectives. Ttese alte~atives were incl~ced :~ ,the ErR so that t~e Cltv Geclsicn-~ckers ~ould be i~:c~ed cf a ~lde range of p=ojec~ opt:o~s, even cptic~s t~ct may ~ct ful=lll casic proJect oCJect~ves. . Santa Monica Hay 30, 1990 Page -1- ?lann1ng co~~i~~~on U::ide~ t::ese circunsta~cQs, J..-t :'5 0'-"'- C:;;':'::i.l.C~ tha~ ~e :l~al EI2Js discuss2cn of projEc~ 2lte~at~vQs ~s legally adequate u~cer C~QA. ; 3. ~net~eT t"& Fi~al EI~ ar.d Aacendur. HUb~ B~ R8C~~GU~atad for ~n Add~t~o~a~ ?cu~d of p~~~c CO"""r:~Q",'t:b Ms. Eror.ows~i conter.d~ (at pp. 2-3) ~~~~ ~ne final EIR a~d Addend~~ ~~~~ be r~c~rc~leted fc~ a ne~ ~cu~a c~ ;~l~c co~ent~ C~e to u~u.b~te:r:tlc..l neW i:l::c~~ti.Gn and. t;::t'oject ::rodl=;.cet~o:1.5." CEQA re~~~~e5 t~~t an LIR ~ust te recirculatea Ior ~ddJ.t:~O:1a~ p~bllc c~mnents wher. "sign:!.!2-.cant r:eN'infor::i2.- ticn ::'5 adc.ec,n "to ar EIR a!te.!: circ~la"t.lcn c! a ~a!~ ElF.. ~~d C~lar to certi:icatian or a ~inal EIR. See ~~. Res. -ode- p. 210"'2' ~"'re ...ne "-"er.r ~"""or:na-~on"-citc.,-'l b', Ms ....... ::::I __;J. _.. .....- I .....4.1. ... ~ ..;.........;... 'l,..."':" .... ___ .1. ero~o~ski Yela~es tc the possible reces~gn of the - ~~de~ground pa~king garage ~hat is descrlbed In tte E~R Adde~du~. Tr_e issue 15 whether thlS pcssible reQEslgn constitutes "sl:::n::.fl.cant new lnfor:natl.on." ;'.ccord.:.nc: to tce "j;'IR "~de"'''''u~ ....;,e ""'050<::,1-1,:;, c:a.....ace re"';",c:.'Sn t.''''''.l'd p-r''::'ar,'" ~ .... n-.......A.. _J.~ LL", '-...... i:-" _..L._ - ..... .......... ___..... '(/1/"-'''- - ...L.-:'L. - --.1 i~volve a =ecta,,~ular shaped, rather than square 5hap~dl ~~dcrsro~r.d 5t~ucture so as to keep t~e subsurface s~ruct~re . I el I I ! Santa Monica Planning Cor~ission Hay 30, 1990 Page 5 I entir~ly ~ast of ~~e 1921 MQan High Tid~ LinQ. ~hi~ ~culd not chargQ ei~her thQ sro~b or the adju~tQd floor arga of the proposed prej~ctr and ~o~ld en~ail thQ less ~f only 2 OU~ of 527 parking spaCQ~ (lQ~~ than ana percent). Yu~her, although the pc~~iblQ rQdss~gn vould inc~ease non-traffic S6:lerating hallvay space for the undergrO\.:nd "back-of-ho\4~en hO~Ql ad~inistrative oif1ces by about 2500 5q.ft.l, tr~ffic ganarating space of a?pro~ir.ately 2500 ~q. ft. ~iat W~5 proposed for the hotell~ lI~clti-purpo~e 1:'001:\11 would be deleted. Th::'5 d-elet~on would le~3en -t:!-_e prc;e.ct '_;5 i1;I":Jncts by 51ightly re.duc~ng traffic i~pccts n~d by ~llc~in9 ~ ~ore expensive ~cve-=urface vie~ corridor. I~ceed{ ~he only di~cer~eble l~cre~se i~ p~tential adverse ~~~acts would be cue to the g~e~ter volu~e of earth (lS7,OCO c~.ydS" rather than 112,000 cu.yds.) to be excavated by t~e pos~ible garage redesign. According to the EIR AdQe~d~n, ~owever, this c~e~ter volu~e of excavation would T2sult :n no s1cni~icant ~nyironmental impacts. ror all prac~ical purposes; the main Gi~!erence te~~een the original garage d8s~gn a~a t~e possible redesign is that t:~e duration of tetpora~ cons~ruct~on a~tlv~tles would be exte~ded bv c few ~on~s (e.g., frcrn 6.5 t~ 9.75 ponths for derrclltlon a~d r.ass excava~lon). It seems h~ghly unl~kely t~at public con~e~ts about a 9 mcntn excavatlon schedule wculd d~=fer :In any ~eanlnaful way from TIubllC cca~e~ts about a 6 r.c~~h c:: . ..", T -....."!,.t.,.. ,;'..... ,.. 4...,...._, 1-."" ...... "'l~ .,....."...1 ~~..;.. 1---.e _cne.c__e. _~ ,-<__5 ..:. _on,-, ~ecl_.....U C1 ,-l~n ",au ~ a.~....-e__ ...0 _ <= ~aan~ngless ey.e~c:se sl~?ly delaying considera~lcn o~ projec~ approval. (Cf. state CEQA Guidellnes ~ l5100(b): liThe ~eq.l::r:e::!ent for -:~e prepa~aticr. cf an En shculd not ccuse unc~e delays lr. ~~e precessing cf appl:c~~icns for cermi ts or other e r.-::.. tle::nBnts f 0::- llse. It} ~ . I I Finally, Ms. Bronow5k~, uYges (at p~. 2-3) ~hat vaYicus project redesigns and moaif~cGt~ons recc~e"cad by t~e final EIR fer lncorporation into the prcJec~ as Gi~igation measures -- such as redesign of t~e bc=.l reOD ~ings anc eleva~lc~5. redesign of ~he C~~~~r.~~y CGntGr'b interior, aDd '.:lcs::,abl '7 relecating tl:.c- 11 I:lU 1 t:,-purPosa rco~1I -- occas~on th~ neec fer r~c~rculat~cn of the Fir~l EI~. SiS~ifican~lYI hcwave~, all of th2~Q propcsed ~~t~gat~o~ ~a6Ures ar. ~hG result of 5cec~=ic co~~ents by ~l~c agQnc~es and ~~e general pUbi~c about the origln~ proJect desLgnj all are prcpoeec to le~~en end ~it2cate potential env1ro~~ental i~pact~ ~~en~ified in t~e d~~=t EIR; andl according to the fi~al ErR, none would crea~e ~ni s1gnificant additio~al e~viron~ent~l ~p~ct~. Age~n, t~e cublic ~a~ already had the onpcrt'~itv ~o co~~~~er ~be propc~ed pr~Jec~ ~nd lt~ pot~;tiel i~p~c~~ and to sugge5t Fotent~al ~~t~g~t~o~ ~e~su~es. !f recirculat~or. ~e~e required fc~ eVe~ pro?osed project IDod~fica~~cn and . i I I .1 I I I I i i Santa Monica Planning Co~ission Hay 301 1990 Page 6 ; ~itigation neasu~e, public agencies, fearlng del~Ys In projec~ app~oval I~om endless rounds of recirculat~c~, ~ould have little lncentive to mcke O~ accept such changes. Eee Sta~e of Callforni2 v, Bleck (9th Cir. 1982) 690 :F.2d 753, 171 (lnte=?reting NEPA): 1TIf an agency nust Ille ia suppleDer.~al dra=t ErR eve~y time any toditicaticns occur, cgencies as a ~ractical ~atter ~ay become hostilE to nodifyi~g the alternatives tD be respansiv~ ~o e~~li~r publ1.c cOlI'21Ients.1I P2~sons lJishJ..;).g to S:UqC'~s't tnat Uey cisagree WiLh th~ ~~tiC'ation~ trorosed i~Jth~ flnal E!~ may, ... ... r:- 1- of course, testify to that QffQct at thQ publ~c ~~ar~ngs O~ the proJect and/or ~ay send in t~eir furthQr ~r~tten CC~E~nt5 to t~e Plannln~ co~~issicn O~ thG city Counc~l. ~ - ! Ur-oar ~h6bB c~~cun6t~nces, l~ ~s cu= cpinion th~t rGcirculation of tr.e Fin~l EIR and/o~ ^cdend~ is not ~QcuJ..rQd (lUG to the CirCU:i.5ta~ce~ alleo:::ed. l1":. ~3. !Bror..c,"-",l'sk.:.' s latter 9 - ~ , or:rI: te [FSEO.;S5} 3 . Use of Develorme~Agreements . In correspondence submitted by th attorney for The Palisades Beach Property Owners Association, a contention was wade that the City is violating its 0\\.'11 Zoning Code by giving various land use approvals through the Development Agreement instead of th~ough standard procedures outlined in the Code. Contrary to this contention, Development Agreements are authorized by the Santa Honica Municipal Code Section 9800 et. seq., and California Government Code Section 65864 et. seq. Development Agreements adopted by ordinance are effective to vary the procedures or requirements for otherwise applicable land use permits, and the scope of subsequent discretionary review by the Landmarks COI:"Wlissicn and Architectural Review Board (see California Government Code Sections 65865.2, 65866). The Environ~ental Impact Report and the Development Agreement fully describe the proposed land use and building requirements for the proj ect. Contrary to the contention that the public is not being adequately info~ed concerning these approvals, the procedure for adoption of a Development Agree~ent provides for even greater public input and protection that the standard procedures for the granting of variances, conditional use permits, or similar development approvals. A public hearing concerning the intention to enter into a Development Agreement is duly notlced pursuant to Sec'tlon 9810 of the Zoning Code. Public Hearings are held before the Planning co~mission and before the city Council. The Developnent Agreement is approved through the adoption of an ordinance. Variances and conditional use permits, by contrast, may be approved by the Zoning Adminlstrator or Planning Commission and are never heard by the City Council other than approvals, if appealed. The adoption of a Development Agreement by the City council is subj ect to referendum by the public, whereas the City Council's actlon uphOlding an appeal would not be. Thus the scope of public review and corr~ent has not been limlted through the Development Agreement approval process. ~. Additional Conditions of Approval In response to pUblic testimony, staff reco~~ends the consideration of three additional conditions of apprcval. 1. A precise signal coordination plan shall be prepared and implemented at the tlme of design and installation of the proposed signal. This plan shall include synchronlzing the FCR signals at Channel/Entrada/Chautau~Ja, the project driveway and the Callfornia Incline. The plan shall be based on and tailored to the actual traffic volumes existing at that time. All costs of the plan preparation and i~plementation shall be borne by the developer. - 4 -