seven members: three Councilmembers appointed by the Mayor and four citizen members. Members are required to demonstrate financial experience and qualifications.
The appointee will serve the remainder of the term, beginning immediately upon appointment and expiring June 30, 2028.
FISCAL IMPACT
There is no fiscal impact associated with this item.
ENVIRONMENTAL REVIEW
Staff recommends the City Council find this action is not subject to CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a project as defined in Section 15378.
NOTICING
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
The unscheduled vacancy was noticed in accordance with the Maddy Act and City Council Policy A-2.
ATTACHMENT
Attachment A – Finance Committee Application
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Attachment - A
Finance Committee Application
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336
337
338
339
340
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
October 13, 2026
Agenda Item No. 14
ABSTRACT:
In accordance with reporting requirements of the City of Newport Beach’s (City) agreement with Visit Newport Beach, Inc (VNB) entered into on January 1, 2025, VNB’s audited financial statements and compliance expenditure report for the fiscal year ended June 30, 2026, are attached for the City Council’s review.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Receive and file.
DISCUSSION:
On January 1, 2025, the City entered into a new agreement with VNB to provide destination marketing services, following the expiration of the previous agreement on December 31, 2024. A key component of the new agreement focused on ensuring transparency when it comes to the use of public funds. To help streamline reporting and increase transparency, VNB agreed to restructure its organization by consolidating Visit Newport Beach, Inc. and Newport Beach & Company into one company. Newport Beach & Company formally dissolved on June 30, 2025, with all business operations ceasing and all assets and liabilities transferred to VNB. VNB continues the operational activity of the consolidated organization.
The agreement requires VNB to submit audited financial statements to the City by September 30 of each year for its most recently ended fiscal year, including any management letter associated with those audited financial statements. VNB submitted audited financial statements for the fiscal year ended June 30, 2026, to the City on September 23, 2026. The audited financial statements are attached for the City Council’s review.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jason Al-Imam, Administrative Services Director/Treasurer – 949-644-3126, [email protected]
PREPARED BY: Jason Al-Imam, Administrative Services Director/Treasurer TITLE: Annual Review of Visit Newport Beach Audited Financial Statements and Expenditure Report
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The agreement also requires VNB to submit an expenditure report to the City by September 30 of each year. The expenditure report must be certified by VNB and a Certified Public Accountant to the effect that the funds received pursuant to the agreement were expended in accordance with the agreement in the previous fiscal year for authorized purposes. This report must include reasonable detail in support of the certification, including expenditures or contributions to special events and not-for-profit organizations in Newport Beach. VNB submitted the expenditure report for the fiscal year ended June 30, 2026, to the City on September 23, 2026.
The audited financial statements and expenditure report for the fiscal year ended June 30, 2026, were audited and examined, respectively, by the independent audit firm Crowe LLP. The independent auditor’s report within VNB’s audited financial statements reflects an unmodified or “clean” audit opinion, meaning that the financial statements are presented fairly, in all material respects, and in conformity with generally accepted accounting principles. The audit report includes an emphasis-of-matter paragraph regarding significant transactions with related nonprofit organizations; however, the auditor’s opinion is not modified with respect to this matter. No audit findings or internal control recommendations were identified, and no management letter was issued in connection with the audit. The firm’s examination of the required expenditure report indicates that VNB’s assertion that it complied with the applicable provisions of the agreement with the City is fairly stated in all material respects.
Because the Fiscal Year 2025-26 financial statements are presented on a comparative basis alongside the prior year, the FY 2024-25 comparative amounts should be viewed in the context of the consolidation. During FY 2024-25, VNB paid Newport Beach & Company for marketing and promotion services before its dissolution, and those costs were reported as marketing expenses in VNB’s financial statements. Following the consolidation, costs that were previously incurred through Newport Beach & Company, including salaries, benefits and certain administrative costs, are reported directly by VNB.
Accordingly, certain comparative line items may differ significantly because of the change in organizational structure and financial statement presentation.
FISCAL IMPACT:
Under the current agreement, VNB receives 23% of the City’s Transient Occupancy Tax (TOT) revenue generated by hotel stays and does not receive a share of TOT revenue generated by short-term lodging rentals. Under the previous agreement, through December 31, 2024, VNB received 18% of the City’s gross TOT revenue from both hotel stays and short-term lodging rentals.
VNB reported $7.4 million in service fee revenue from the City in FY 2025-26 to fund destination marketing services and activities. VNB recognizes service fee revenue when it receives payment from the City because it is not entitled to its share of TOT before 342
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receipt. Accordingly, a payment made near fiscal year-end may be reflected in different fiscal years in VNB’s financial statements and the City’s disbursement records.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Visit Newport Beach Audited Financial Statements for the Year Ended June 30, 2026
Attachment B – Visit Newport Beach Expenditure Compliance Report for the Year Ended June 30, 2026
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Attachment A
Visit Newport Beach Audited Financial Statements for the Year Ended June 30, 2026 344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
Attachment B
Visit Newport Beach Expenditure Compliance Report for the Year Ended June 30, 2026 363
364
2. 365
3. 366
4. 367
5. 368
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
October 13, 2026
Agenda Item No. 15
ABSTRACT:
Eagle Four Partners (Applicant), is requesting approval of a Development Agreement (DA) in connection with the potential future development of Fairway Three, a residential development consisting of up to 78 residential units at the northeastern portion of the Newport Beach Country Club (NBCC) (Project). No actual project or construction is proposed at this time. Before submitting an application for entitlements for the Project, the applicant is requesting a DA between the applicant and the City of Newport Beach (City), pursuant to Chapter 15.45 (Development Agreements) of the Newport Beach Municipal Code (NBMC), which would provide the Applicant with the vested right to develop the Project for a term of five years and to provide negotiated public benefits to the City.
For the City Council’s consideration is the introduction of an ordinance approving a DA for the Project.
RECOMMENDATIONS:
a) Conduct a public hearing;
b) Find this project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because the project is consistent with the previously certified Program Environmental Impact Report (SCH No. 2023060699); and c) Introduce Ordinance No. 2026-17, An Ordinance of the City Council of the City of Newport Beach, California, Approving a Development Agreement for a 78-unit Residential Development for the Property Located at 1 Clubhouse Drive (PA2025- 0019), and pass to second reading on October 27, 2026.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jaime Murillo, Community Development Director - 949-644-3209, [email protected]
PREPARED BY: Jenny Hannsun, Associate Planner - 949-644-3212, [email protected]
TITLE: Ordinance No. 2026-17: Approving the Fairway Three Development Agreement (PA2025-0019)
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DISCUSSION:
The 128.49-acre property of the Newport Beach Country Club (NBCC) and golf course is generally bounded by Jamboree Road to the west, East Coast Highway to the south, Santa Barbara Drive to the north, and intervening development towards the east along Newport Center Drive (Property). The Property is primarily surrounded by multi-unit residential developments with Fashion Island located approximately 520 feet to the east.
Figure 1, the Newport Beach Country Club and Golf Course Housing Opportunity (HO) Overlay Zoning District
On September 24, 2024, the Newport Beach City Council adopted Ordinance Nos. 2024- 16 and 2024-17, approving amendments to Title 20 (Planning and Zoning) of the NBMC to establish the Housing Opportunity (HO) Overlay Zoning Districts in Section 20.28.050 (Housing Opportunity (HO) Overlay Zoning Districts) (Housing Overlay) of the NBMC and to create multi-unit objective design standards in Section 20.48.185 (Multi-Unit Objective Design Standards) of the NBMC.
Subject Property Fashion Island
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Consistent with the Policy Actions 1A through 1G and 3A of the 6th Cycle Housing Element of the General Plan, Section 20.28.050 (Housing Opportunity (HO) Overlay Zoning Districts) of the NBMC allows for new housing opportunities within five subareas to ensure the City can accommodate its 6th Cycle RHNA allocation. These subareas correspond to the Focus Areas identified in the Housing Element and are as follows:
Airport Area Environs Area (HO-1)
West Newport Mesa Area (HO-2)
Dover-Westcliff Area (HO-3)
Newport Center Area (HO-4)
Coyote Canyon Area (HO-5)
Properties identified within these subareas are eligible for specified development allowances conducive to residential development at the prescribed average density of 20 to 50 dwelling units per acre. The standards include, but are not limited to, minimum lot area, setbacks, height, open space, landscaping, and parking. Each of the five subareas is also subject to a development limit that identifies the maximum number of dwelling units allowed.
The Property is categorized as Parks and Recreation (PR) by the General Plan and is located within the Newport Beach Country Club Planned Community (PC47) Zoning District. Although the entire Property is not considered a Housing Overlay Site, two areas of the Property were identified as opportunity sites and included within the HO-4 (Newport Center Area) Subarea: Site ID No. 353, located towards the northeastern portion of the Property and Site ID No. 354, located towards the south of the Property, as shown in Figure 2 below (HO Sites). The Project will be located at the northeastern portion of the Property consistent with Site ID No. 353 (Project Site). The development limit for the HO4 Subarea is 2,439 units and the required average density range is 20 to 50 dwelling units per acre. Figure 2 depicts properties identified as housing sites within the HO-4 Subarea that are eligible for the development of housing pursuant to the Housing Overlay of the NBMC.
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Figure 2, HO-4 (Newport Center Area) Subarea map
Coastal Land Use Plan and Title 21 Amendment
In addition to the approved amendments to Title 20 as discussed above, implementation of the Housing Overlay in the coastal zone required an amendment to the City’s Local Coastal Program (LCP) which consists of the Coastal Land Use Plan (CLUP) and the Subject Property
HO Site ID No. 353
(Project Site)
HO Site ID No. 354
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Implementation Plan (IP), or Title 21, of the NBMC. The CLUP establishes goals, objectives and policies governing land and water use in the coastal zone, while Title 21 provides the corresponding zoning and development standards. These amendments were designed to establish Housing Overlay Coastal Zoning Districts with development standards applicable to coastal zone properties, complementing the General Plan Land Use Element and Title
20. On July 23, 2024, the Newport Beach City Council adopted Resolution No. 2024-52, authorizing submittal of the Local Coastal Program Amendment (LCPA) to the California Coastal Commission (CCC). The City formally submitted the LCPA application on August 16, 2024, and on April 17, 2026, the CCC approved the amendments with suggested modifications. The City Council subsequently adopted the CCC's suggested modifications to the CLUP on May 26, 2026, and adopted the modifications to Title 21 through Ordinance No. 2026-05 on June 9, 2026.
On July 9, 2026, the CCC certified the LCPA and the Housing Overlay became effective in the coastal zone. The amendments included the two HO Sites on the Property.
Project Description
Pursuant to Chapter 15.45 (Development Agreements) of the NBMC, the applicant is requesting a DA with the City for vested rights to develop up to 78 residential dwelling units on the Project Site. The proposed DA, which is described in more detail below, would provide the applicant with the vested right to develop the Project for a term of five years and include a requirement to provide negotiated public benefits to the City.
No specific design for the Project is included in this application, and no construction is proposed. Buildout of the Project would require future entitlements, including but not limited to, a site development review and a tentative tract map review by the Planning Commission prior to building permit issuance. The potential future project would be reviewed for consistency with Titles 19, 20, and 21 of the NBMC including standards for height, setbacks, parking and density.
Although HO Site ID No. 353 was identified in the Sites Inventory of the Housing Element as 0.84 acres in area (yielding between 16 and 42 units), this was intended to demonstrate areas within the Property that could accommodate a realistic housing development project.
The final design of the Project parcel could be larger, and ultimately future housing development would be required to comply with the prescribed 2,439 development limit for the HO-4 Subarea and the required density range of 20-50 dwelling units per acre consistent with the General Plan and Titles 20 and 21.
Development Agreement
Pursuant to Section 15.45.020(A)(2)(a)(Development Agreement Required) of the NBMC, a DA is not required because the Project does not include a legislative act (i.e., a General Plan Amendment or Zoning Code Amendment) nor does the City’s 6th Cycle General Plan Housing Element require applicants to enter into DAs to develop housing units located on Housing Opportunity Sites. Nonetheless, the applicant is requesting a 373
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voluntary DA to vest rights to develop the Project for a term of five years. Additionally, the Project will be required to pay public benefit fees as part of the DA. The Project would also voluntarily provide much-needed housing opportunities in the City in furtherance of the certified Housing Element.
The DA provides assurance that the applicant may proceed with the Project in accordance with existing policies, rules and regulations, and conditions of approval.
Additionally, the DA helps the applicant avoid a waste of resources and escalated costs of the Project while encouraging a commitment to private participation in comprehensive planning.
Public Benefits
Article 3 (Public Benefits) of the draft DA outlines the public benefits due to the City in exchange for vested development rights. Pursuant to Section 3.1 (Public Benefit Fee), the applicant will be required to pay a public benefit fee of $128,205 per residential unit, paid prior to the issuance of the grading permit, for any portion of development of the 78 residential units. The public benefit fee is inclusive of Park Fees and Development Impact Fees (DIFs), adopted by the City pursuant to Resolution Nos. 2024-75 and 2024-83. The City anticipates that the Park Fees will be approximately $60,000 per unit (approximately $4,680,000) and DIFs will be roughly $9 per-square-foot of development (approximately $2,000,000). Any remaining fees (approximately $3,319,990), up to the $128,205 maximum per unit, may be used for any public purpose at the discretion of the City Council. In contrast, the Park Fees and DIFs must be used for the intended public purpose (i.e., parks, recreation, police, fire, water and sewer).
As required by Subsection 3.1.1 (Consumer Price Index [CPI] Increase), of the DA, the public benefit fee shall be increased based upon percentage increases in the Consumer Price Index (CPI) as provided in the DA. Assuming all units are developed, this would result in a potential public benefit fee of $9,999,990, before any CPI escalation is applied.
The CPI provision incentivizes development of housing within the current housing element cycle.
Additionally, separate payment of Traffic Fair Share Fees and San Joaquin Hills Transportation Corridor Agency Fees would be required and are not included within the public benefit fee.
General Plan Consistency
The Project is consistent with the Goals and Policies of the recently updated General Plan, adopted in June 2026. Pursuant to General Plan Land Use Element Policy LU-11.1 (Residential Uses and Residential Densities [Focus Area]), residential use of any property included within an established housing opportunity overlay zoning district is allowed regardless of the underlying land use category or density limit established through Table LU-1 (Anomaly Locations) and Table LU-2 (Land Use Designations). An amendment to the General Plan is not required to develop residential uses within an established housing opportunity zoning overlay district. Therefore, although the Project Site has a General Plan land use category of PR, a general plan amendment is not required to implement 374
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the Project because the Project proposes to vest the rights for the development of residential uses located within the HO-4 (Newport Center Area) Subarea of the Housing Overlay.
Additionally, General Plan Land Use Element Policy LU-1.7 (Housing Opportunity Overlay) supports the development of housing in the housing opportunity overlay zones consistent with the densities and development limits identified in the Zoning Code and Table LU-3 (Housing Opportunity Overlay). The DA will support the future development of the Project, which will comply with the development standards and densities pursuant to Section 20.28.050 of the NBMC and General Plan policies that pertain to design, compatibility, lighting, public views, etc.
Planning Commission Review and Recommendation
On September 17, 2026, the Planning Commission conducted a duly noticed public hearing to consider the requested application. The Planning Commission discussed the merits of the DA and the public benefit fees. At the conclusion of the public hearing, the Planning Commission voted unanimously (5 ayes and 0 nays, with 2 absent/recused), to adopt Resolution No. PC2026-025, recommending the City Council approve the DA. The Planning Commission staff report, meeting minutes, and resolution are included for reference as Attachments B, C, and D.
Additionally, a public comment was received and is included as Attachment E.
FISCAL IMPACT:
As the project is not increasing overall density and is consistent with the Zoning District and General Plan, a fiscal impact analysis was not prepared. A fiscal impact analysis was prepared by Keyser Marston Associates dated July 9, 2024, for the Housing Element Implementation Program Amendments. The analysis concluded that:
Sales prices and assessed values in Newport Beach are all very high, benefiting General Fund revenues;
Full buildout of all potential residential projects could have a net negative fiscal impact unless they continue to be developed at higher price points; Replacement of land uses that generate minimal public revenues can offset the negative impact of residential; and
Any potential fiscal impacts may often be at least partially offset through payment of impact fees.
In this case, the project would improve an underutilized area of a property with a new residential development, and the applicant would provide various public benefit fees including development impact fees, park fees, and general public benefit fees to the City based on the specific terms contained in the DA.
ENVIRONMENTAL REVIEW:
The project is consistent with the California Environmental Quality Act (CEQA) Guidelines Section 15183, which provides an exemption for projects that are consistent with the 375
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development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified. The City’s Housing Implementation Program Final Program EIR (State Clearinghouse SCH Number 2023060699) was certified by the City Council on July 23, 2024.
The project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because, inasmuch as the property involved is within the HO-4 Subarea, the project does not change the underlying land use or zoning designations; and would not result in new significant impacts or a substantial more adverse impact than addressed in the PEIR.
A detailed consistency analysis prepared by T & B Planning Inc., dated September 2026, and peer reviewed by Kimley-Horn & Associates, Inc., is provided as Exhibit “C” to Attachment A of this staff report. The consistency analysis concluded that the Project is consistent with the development density and use characteristics established by the City’s General Plan Housing Implementation Program as analyzed by the PEIR, and the required determinations can be made.
NOTICING:
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant, and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code.
Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website.
ATTACHMENTS:
Attachment A – Ordinance
Attachment B – Planning Commission Staff Report dated September 17, 2026 Attachment C – Planning Commission Draft Meeting Minutes Attachment D – Planning Commission Resolution No. PC2026-025 (No Exhibits) Attachment E – Public Comment
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Ordinance
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ORDINANCE NO. 2026-__
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT FOR A 78-UNIT
RESIDENTIAL DEVELOPMENT FOR THE PROPERTY
LOCATED AT 1 CLUBHOUSE DRIVE (PA2025-0019)
WHEREAS, Section 200 of the City Charter, of the City of Newport Beach (“City”), vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the City Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges or procedures granted or prescribed by any law of the State of California;
WHEREAS, California Government Code Section 65580 et seq. (“State Housing Element Law”) requires each city and county adopt a housing element that identifies and analyzes existing and projected housing needs within their jurisdiction and prepare goals, policies, and programs, and quantified objectives to further the development, improvement, and preservation of housing;
WHEREAS, an application was filed by CAA Planning, on behalf of NBCC, LLC and Eagle Four Partners concerning property located at 1 Clubhouse Drive, which is legally described in Exhibit “A-1” and depicted on the site map attached hereto as Exhibit “A-2” (“NBCC Property”) and includes the location of the Project which is conceptually depicted on the exhibit attached hereto as Exhibit “A-3” (“Property”); WHEREAS, NBCC, LLC holds a leasehold interest in the NBCC Property and Eagle Four Partners LLC, a California limited liability company, has authority to act on behalf of NBCC, LLC (“Applicants”);
WHEREAS, the Applicants propose the future development of Fairway Three, a 78-unit residential development, parking facilities and amenities for residents and guests, new hardscape and landscaping, and utility infrastructure at the northeastern portion of the Property (“Project”);
WHEREAS, the Property is designated Parks and Recreation (PR) by the General Plan Land Use Element and located within the Golf Course subarea of the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Parks and Recreation (PR) by the Coastal Land Use Plan (“CLUP”) and located within the Newport Beach Country Club (PC-47) Coastal Zoning District;
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WHEREAS, on September 24, 2024, the City Council adopted Ordinance Nos. 2024-16 and 2024-17, approving amendments to Title 20 (Planning and Zoning) of the NBMC to establish the Housing Opportunity (HO) Overlay Zoning Districts in Section
20.28.050 (Housing Opportunity (HO) Overlay Zoning Districts) (“Housing Overlay”) and to create multi-unit objective design standards in Section 20.48.185 (Multi-Unit Objective Design Standards) of the NBMC;
WHEREAS, these new sections serve to implement Policy Actions 1A through 1G and 3A in the 6th Cycle Housing Element (“Housing Element”) of the General Plan; WHEREAS, on July 23, 2024, the City Council adopted Resolution No. 2024-50 certifying Final Program Environmental Impact Report SCH No. 2023060699 (“PEIR”), approving a Mitigation Monitoring and Reporting Program (“MMRP”), and adopting Findings and a Statement of Overriding Considerations related to the implementation of the Housing Element involving amendments to the General Plan, Coastal Land Use Plan, and Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the NBMC;
WHEREAS, a public hearing was held by the Planning Commission on September 17, 2026, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and Chapter 20.62 (Public Hearings) and Chapter 21.62 (Public Hearings) of the NBMC.
Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2026-025 by a unanimous vote (5 ayes,1 absent, 1 abstention), recommending the City Council approve the Project; and
WHEREAS, a public hearing was held by the City Council on October 13, 2026, in the City Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with the Ralph M.
Brown Act and Chapter 20.62 (Public Hearings), Chapter 21.62 (Public Hearings) and Section 15.45.050 (Public Hearing - Notice) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:
Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City 379
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Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation.
Section 2: The City Council hereby approves the Development Agreement filed as Planning Application No. PA2025-0019, which is attached hereto as Exhibit “B,” and incorporated herein by reference.
Section 3: The City Council finds the Development Agreement is consistent with provisions of California Government Code Sections 65864 et seq. and Chapter 15.45 (Development Agreements) of the NBMC that authorize binding agreements that: (i) encourage investment in, and commitment to, comprehensive planning and public facilities financing; (ii) strengthen the public planning process and encourage private implementation of the local general plan; (iii) provide certainty in the approval of projects to avoid waste of time and resources; and (iv) reduce the economic costs of development by providing assurance to the property owners that they may proceed with projects consistent with existing policies, rules, and regulations. Additionally, the City Council finds the Development Agreement is entered into pursuant to, and constitutes a present exercise of, the City’s police power and is in the best interest of the health, safety, and general welfare of the City, residents, and the public.
Section 4: Pursuant to the California Environmental Quality Act (“CEQA”) as set forth in California Public Resources Code Section 21000 et seq. and its implementing guidelines set forth in California Code of Regulations, Title 14, Division 6, Chapter 3 (“CEQA Guidelines”), the City Council adopted Resolution No. 2024-50 on July 23, 2024, certifying Final Program Environmental Impact Report SCH No. 2023060699 (“PEIR”), approving a Mitigation Monitoring and Reporting Program (MMRP), and adopting Findings and a Statement of Overriding Considerations related to the implementation of the Housing Element involving amendments to the General Plan, Coastal Land Use Plan, and Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the NBMC which are available at: Housing Implementation Program EIR.
The Project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because, inasmuch as the Properties involved are all within the HO-1 Subarea, the Project does not change the underlying land use or zoning designations; and would not result in new significant impacts or a substantial more adverse impact than addressed in the PEIR.
Section 15183 of the CEQA Guidelines provides, in relevant part:
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a. Projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an environmental impact report (“EIR”) was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies. b. In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:
i. Are peculiar to the project or the parcel on which the project would be located;
ii. Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent;
iii. Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action; or
iv. Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.
c. If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards, as contemplated by subdivision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact.
d. This section shall limit the analysis of only those significant environmental effects for which:
i. Each public agency with authority to mitigate any of the significant effects on the environment identified in the EIR on the planning or zoning action undertakes or requires others to undertake mitigation measures specified in the EIR which the lead agency found to be feasible, and
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ii. The lead agency makes a finding at a public hearing as to whether the feasible mitigation measures will be undertaken.
e. An effect of a project on the environment shall not be considered peculiar to the project or the parcel for the purposes of this section if uniformly applied development policies or standards have been previously adopted by the city or county with a finding that the development policies or standards will substantially mitigate that environmental effect when applied to future projects, unless substantial new information shows that the policies or standards will not substantially mitigate the environmental effect. The finding shall be based on substantial evidence which need not include an EIR. Such development policies or standards need not apply throughout the entire city or county but can apply only within the zoning district in which the project is located, or within the area subject to the community plan on which the lead agency is relying.
Moreover, such policies or standards need not be part of the general plan or any community plan but can be found within another pertinent planning document such as a zoning ordinance.
As part of its decision-making process, the City is required to review and consider whether the Project would create new significant impacts or significant impacts that would be substantially more severe than those disclosed in the PEIR. Additional CEQA review is only triggered if the Project’s new significant impacts or impacts that are more severe than those disclosed in PEIR such that major revisions to the PEIR would be required. A detailed consistency analysis prepared by T & B Planning Inc., dated September 2026, and peer reviewed by Kimley-Horn & Associates, Inc., is attached hereto as Exhibit “C” to this resolution and hereby incorporated by reference finds the Project is consistent with the development density and use characteristics in the City’s General Plan Housing Implementation Program as analyzed by the PEIR.
Section 5: The City Council finds that judicial challenges to the City’s CEQA determinations and approvals of land use projects are costly and time-consuming. In addition, project opponents often seek an award of attorneys’ fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys’ fees, and damages that may be awarded to a successful challenger.
Section 6: The recitals provided in this ordinance are true and correct and are incorporated into the operative portion of this ordinance. 382
Ordinance No. 2026-__
Section 7: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
383
Ordinance No. 2026-
Section 8: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 13th day of October, 2026, and adopted on the 27th day of October, 2026, by the following vote, to-wit:
AYES: -----------------------
NAYS: -----------------------
ABSENT: ----------------------
Lauren Kleiman, Mayor
ATTEST:
Lena Shumway, City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Attachment( s ): Exhibit A-1 - Legal Description
Exhibit A-2 - NBCC Property
Exhibit A-3 - Property Depiction
Exhibit B - Development Agreement
Exhibit C - CEQA Consistency Analysis prepared by T&B Planning Inc. dated September 2026
384
EXHIBIT "A-1"
NBCC PROPERTY
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
AND THAT PORTION OF BACK BAY DRIVE AS SHOWN ON PARCEL MAP NO. 79- 704, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF
PARCEL MAPS, THAT WOULD ATTACH BY OPERATION OF THE LAS TO ABUTTING PROPERT;,r' OWNERS BY VACATION RECORDED OCTOBER 17, 1989 AS INSTRUMENT NO. 89-558952, OF OFFICIAL RECORDS.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND.
TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING
AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM
THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK, OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED
HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO
REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500
FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93-0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-51 AND APN: 442-011-52
PARCEL B:
385
PARCEL 3 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFROM AND STORING IN AND REMOVING
THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN
THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO,
THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO
REDRILL, RETUNNEL , EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500
FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93-0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-53
386
EXHIBIT "A-2"
NBCC PROPERTY DEPICTION
387
DEPICTION OF NBCC PROPERTY
388
EXHIBIT "A-3"
PROPERTY DEPICTION
389
CONCEPTUAL DEPICTION OF PROPERTY
390
EXHIBIT "B"
DEVELOPMENT AGREEMENT
391
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for the
benefit of the City of Newport Beach and is exempt
from the payment of a recording fee pursuant to
Government Code§§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
EAGLE FOUR PARTNERS, LLC on behalf of NBCC, LLC, and
GOLF REAL TY FUND, a California limited partnership
CONCERNING THE FAIRWAY THREE PROJECT LOCATED WITHIN
THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY
DISTRICT
392
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the_ day of _____ , 2026 (the "Agreement Date"), and is being entered into by and between the City of Newport Beach ("City"), and Eagle Four Partners, LLC, a California limited company on behalf of NBCC, LLC and Golf Realty Fund, a California limited partnership, (collectively, "Property Owners"). City and Property Owners are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Golf Realty Fund is the managing owner of and owns a fee interest in title to that certain real property located in the City of Newport Beach, County of Orange, State of California which is more particularly described in the legal description attached as Exhibit "A-1" and depicted on the site map attached hereto as Exhibit B-1 ("NBCC Property") and includes the Property, which is conceptually depicted on the exhibit attached hereto as Exhibit A-2 ("Property").
B. NBCC, LLC holds a leasehold interest in the NBCC Property and the Newport Beach Country Club Planned Community District as shown on the City'sfZoning Map.
C. Eagle Four Partners LLC, a California limited liability company, has authority to act on behalf ofNBCC, LLC.
D. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction.
E. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance.
F. The City Council adopted the General Plan 6th Cycle Housing Element ("Housing Element") in September 2022 covering the planning period from 2021-2029. As required by state law, the Housing Element was certified by the State Department of Housing and Community Development ("HCD") in October 2022.
G. On July 23, 2024, the City Council adopted Resolution No. 2024-50 certifying the Housing Element Implementation Program Amendments Final Program Environmental Impact Report (State Clearinghouse No. 2023060699), approving a Mitigation Monitoring and Reporting Program, and adopting Findings and a Statement of Overriding Considerations and related -1-
393
approvals to implement the Housing Element including amendments to the City of Newport Beach General Plan ("General Plan"), Coastal Land Use Plan, and Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code and amending the General Plan Land Use Element, Coastal Land Use Plan and Title 20 (Planning and Zoning) of the Newport Beach Municipal Code.
H. On April 17, 2026, the California Coastal Commission approved Local Coastal Program Amendment o. LCP-5-NPB-24-0032-2 subject to suggested modifications to the Coastal Land Use Plan policy and the Local Coastal Program Implementation Plan.
I. The Parties wish to enter into this Agreement to vest the Property with up to seventy-eight (78) high-quality residential units, which seventy-eight (78) units are within the 2,439 residential development units allocated to Housing Overlay HO-4 Newport Center in the Housing Element.
J. As detailed in Section 3 of this Agreement, Property Owners have agreed to provide significant public benefits as consideration for this Agreement.
K. This Agreement is consistent with the General Plan. Though the General Plan's designation of the Newport Beach Country Club is PR (Parks and Recreation) (Anomaly 74) and the Newport Beach Country Club Planned Community District (PC-47) does not include these seven-eight (78) residential units, the Development Plan is authorized by the City based on the inclusion of the NBCC Property (including the Property) as Site Nos. 353 and 354 within Appendix B of the adopted and certified Housing Element, Land Use Element Policy LU 4.4, Coastal Land Use Plan Policy 2.1.11-1, the Housing Opportunity Overlay Zoning District Maps established pursuant to Section 20.80.025 (Housing Opportunity (HO) Overlay Zoning Districts), and the Overlay Coastal Zoning District Maps established pursuant to Section
21.28.070 (Housing Opportunity (HO) Overlay Coastal Zoning Districts) in the Newport Beach Municipal Code.
L. In recognition of the significant public benefits that this Agreement provides, the City Council finds that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the Agreement Date; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Housing Element Implementation Program Amendments Final Program Environmental Impact Report (State Clearinghouse No. 2023060699); and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45.
M. On September 17, 2026, City's Planning Commission held a public hearing on this Agreement, and made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement.
N. On October 13, 2026, the City Council held a public hearing introducing this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owners, and members of the public. On October 27, 2026, consistent with applicable provisions of the Development Agreement Statute and Development 2 394
Agreement Ordinance, the City Council adopted its Ordinance No. 2026-_ (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Property Owners agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2026-_ approving and adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended from time to time.
"Agreement Date" shall mean ________ , which date is the date the City Council adopted the Adopting Ordinance.
"CEQA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed m Section 10.1 of this Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor, Bureau of Labor Statistics for all urban consumers (all items) for the Los Angeles-Long Beach-Anaheim, California Area, All Urban Consumers, All Items, Base Period ( 1982-84= l 00), or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, 3 395
including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. Park fees and Development Impact Fees adopted pursuant to Resolution Nos. 2024-75 and 2024-83, respectively, are not Development Exactions.
"Development Impact Fee" shall mean the park fees and development impact fees adopted by the City pursuant to Resolution Nos. 2024-75 and 2024-83, the latter of which may be adjusted annually for inflation pursuant to the California Construction Cost Index. "Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: the certified 6th Cycle Housing Element which includes the NBCC Property (including the Property) as Site Nos. 353 and 354 within Appendix B, Land Use Element Policy LU 4.4, Coastal Land Use Plan Policy 2.1.11-1, the Housing Opportunity Overlay Zoning District Maps established pursuant to Section 20.80.025 (Housing Opportunity (HO) Overlay Zoning Districts), the Local Coastal Program Implementation Plan, and the Overlay Coastal Zoning District Maps established pursuant to Section 21.28.070 (Housing Opportunity (HO) Overlay Coastal Zoning Districts) in the Newport Beach Municipal Code. "Development Regulations" shall mean the following regulations as they are in effect as of the Agreement Date and to the extent they govern or regulate the development of the Property and NBCC Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Agreement Date that impairs or restricts Property Owners' rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Property Owners in writing: the General Plan, the Coastal Land Use Plan, the Development Plan, the Local Coastal Program Implementation Plan (Title 21 ); and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City pennits and approvals for development, and 4 396
similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions). Title 20 of the Municipal Code (planning and zoning) and Title 21 of the Newport Beach Municipal Code (local coastal program implementation plan), but specifically excluding all other sections of the Newport Beach Municipal Code, including without limitation Title 5 of the Newport Beach Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if an initiative (e.g., Responsible Housing Initiative) or referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and an initiative or referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the initiative or referendum is certified resulting in upholding and approving the Adopting Ordinance, Development Plan, and/or the Development Regulations; (iii) if a lawsuit is timely filed challenging the validity of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations approved on or before the Agreement Date (including but not limited to Newport Beach Stewardship Association vs. City of Newport Beach), the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan and/or the applicable Development Regulations, which such finality is achieved by a final non-appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date of final approval of Amendment to the Local Coastal Program Implementation Plan for the Housing Overlay (LCP-5-NPB-23- 0032-2); or (v) if a lawsuit is timely filed challenging the validity or legality of the approval of Amendment to the Local Coastal Program Implementation Plan for the Housing Overlay(LCP-5- NPB-23-0032-2), the date on which said challenge is finally resolved in favor of the validity or legality of Amendment to the Local Coastal Program Implementation Plan for the Housing Overlay (LCP-5-NPB-23-0032-2), whether such finality is achieved by a final non-appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date.
The period of tolling shall continue until the date of final, non-appealable resolution of such Litigation.
"Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental 5 397
Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C.
Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seq. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, as amended through the Agreement Date. "Golf Realty Fund" shall mean Golf Realty Fund, a California limited partnership which is the managing owner of and owns a fee interest in title to that certain real property located in the Overall Property including the Property where the Project is proposed. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum-derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee.
''NBCC LLC" shall mean the Newport Beach Country Club, LLC which is the lessee of the Property.
"NBCC Property" shall mean that certain real property located in the City of Newport Beach, County of Orange, State of California which is more particularly described in the legal description attached as Exhibit "A-1" and depicted on the site map attached hereto as Exhibit Bl, which includes the Property. "Notice of Default" shall have the meaning ascribed in Section 8 .1 of this Agreement. "Party" or "Parties" shall mean either City or Property Owners or both, as determined by the context.
"Project" shall mean up to seventy-eight (78) luxury residential dwelling units and all onsite and off-site improvements that Property Owners are authorized and/or may be required to 6 398
construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law.
"Property" is conceptually depicted on Exhibit "A-2," which is attached hereto and incorporated herein by reference, and includes Housing Opportunity Site No. 353 in the City's 6 th
Cycle Housing Element. The final Property boundaries shall be as set forth in a future subdivision action approved in accordance with the Subdivision Map Act (Government Code Section 66410 et seq.).
"Property Owners" shall mean Eagle Four Partners, a California limited liability company on behalf of NBCC, LLC (Lessee), and Golf Realty Fund, a California limited partnership (Lessor), and any successor or assignee, including lessees, to all or any portion of the right, title, and interest to ownership of all or a portion of the Property. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Property Owners are required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
2. 2.1
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
General Provisions.
Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property are consistent with the General Plan including the certified 6th Cycle Housing Element which includes the NBCC Property (including the Property) as Site Nos. 353 and 354 within Appendix B, Land Use Element Policy LU 4.4, Coastal Land Use Plan Policy 2.1.11-1, the Housing Opportunity Overlay Zoning District Maps established pursuant to Section 20.80.025 (Housing Opportunity (HO) Overlay Zoning Districts), and the Overlay Coastal Zoning District Maps established pursuant to Section
21.28.070 (Housing Opportunity (HO) Overlay Coastal Zoning Districts) in the Newport Beach Municipal Code.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Property Owners Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement.
7 399
Property Owners and each person executing this Agreement on behalf of Property Owners hereby represents and warrants to City as follows: (i) Property Owners or any co-owner comprising Property Owners are a legal entities and that such entities are duly formed and existing and are authorized to do business in the State of California; (ii) if Property Owners or any coowner comprising Property Owners are natural persons that such natural persons have the legal right and capacity to execute this Agreement; (iii) that all actions required to be taken by all persons and entities comprising Property Owners to enter into this Agreement have been taken and that Property Owners have the legal authority to enter into this Agreement; (iv) Property Owners' entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Property Owners or any person or entity comprising Property Owners have to any third party; (v) that neither Property Owners nor any coowner comprising Property Owners are the subject of any voluntary or involuntary petition in bankruptcy; and (vi) Property Owners have the authority and ability to enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date and continue until the earliest of the following dates: (i) the fifth (5th) anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in accordance with Articles .5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Property Owners' complete satisfaction, performance, and payment, as applicable, of all fees as required under the Agreement, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication ..
Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election; the Responsible Housing Initiative has been approved by City's voters at an election or (ii) a final non-appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, the LCPA for the Project and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Property Owners' indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable.
Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Property Owners' 8 400
obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement.
3. 3.1
Public Benefits.
Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this Agreement, except as provided herein, Property Owners shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject to (herein, the "Public Benefit Fee") in the sum of One Hundred Twenty-Eight Thousand Two Hundred Five Dollars ($128,205.00) per unit inclusive of the Development Impact Fees defined above (i.e., the $128,205.00 per unit Public Benefit Fee includes the Project's Development Impact Fees). The Public Benefit Fee shall be due and payable prior to the issuance of the grading permit, for any portion of development of the seventy-eight (78) residential units.
The Public Benefit Fee provided herein are not intended to include traffic fair share fees.
The City has not designated a specific project or purpose for the portion of the Public Benefit Fee in excess of what would be required by the Development Impact Fees as defined above. Property Owners acknowledge by their approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee and that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Property Owners' vested rights to be acquired hereunder, and that Property Owners expressly waive any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of the Public Benefit Fee identified in this Section 3 .1 on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Property Owners' default, if Property Owners shall fail to timely pay any portion of the Public Benefits identified in this Section 3.1 when due, City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project.
3 .1.1 Consumer Price Index (CPI) Increases. The Public Benefit Fee shall be increased based upon percentage increases in the CPI Index as provided herein. The first CPI adjustment shall occur on the first anniversary of the City Council's adoption of the Adopting Ordinance (the first "Adjustment Date") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date thereafter until expiration of the Term of this Agreement ( each, an "Adjustment Date"). The amount of the CPI adjustment on the applicable Adjustment Date shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee ( or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date.
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4. Development of Project.
4.1 Applicable Regulations; Property Owners' Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Property Owners shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals applied for by Property Owners, or that are required, for Development of the Project as of the Agreement Date provided that all such actions are consistent with the Development Regulations, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Property Owners' rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date.
Property Owners have expended and will continue to expend substantial amounts of time and money in the planning and entitlement process to permit Development of the Project in the future. Property Owners represent and City acknowledges that Property Owners would not make these expenditures without this Agreement, and that Property Owners are and will be making these expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set forth in this Agreement.
Property Owners may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that unless this Agreement also is amended, the request does not propose an increase in the Project's maximum density of seventy-eight 78 residential dwelling units or a change in use that generates more peak hour traffic or more daily traffic than the Project. In addition, Property Owners may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code section 19.12.090.
This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement.
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4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Property Owners shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Property Owners deem appropriate within the exercise of Property Owners' sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of �n initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Property Owners' vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property.
4.3 .1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and Property Owners shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Property Owners, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due.
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4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Property Owners have consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Property Owners shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Property Owners and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction ( excluding any development impact fee) for the Project has been established and fixed by City in the conditions of approval for any of the Development Regulations approved on or before the Agreement Date, City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Property Owners' prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Property Owners against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Chapter 3.12 of Newport Beach Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Property Owners' vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Property Owners do not waive their right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Property Owners shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Property Owners shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Property Owners agree to preserve the terms of this Agreement and the rights of Property Owners as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Property Owners at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Property Owners. City also agrees to process in a prompt manner Property Owners' proposed changes to this Agreement, 12 404
the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Property Owners' vested rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and buildingrelated standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Property Owners construct or install any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Property Owners or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence.
5. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code Section 65868 and Newport Beach Municipal Code Section
15.45.070 or by unilateral termination by City in the event of an uncured default of Property Owners.
6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, 13 405
zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property.
7. 7.1
Annual Review of Property Owners' Compliance With Agreement.
General.
City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1. Property Owners (including any successor to the Property Owners executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City.
7.2 Property Owners Obligation to Demonstrate Good Faith Compliance.
During each annual.review by City, Property Owners are required to demonstrate good faith compliance with the terms of the Agreement. Property Owners agree to furnish such evidence of good faith compliance if the City, in the reasonable exercise of its discretion, requests same of Property Owners, thirty (30) days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Property Owners have, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Property Owners have so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the basis of substantial evidence, that Property Owners have not so complied, written notice shall be sent to Property Owners by first class mail of the Zoning Administrator's finding of non-compliance, and Property Owners shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyond the control of Property Owners, Property Owners must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Property Owners fail to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of Property Owners' Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Property Owners or limit City's rights or remedies for any such Default.
8. Events of Default.
8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice ( each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the 14 406
alleged Default and a reasonable manner and sufficient period of time (not less than ten (l 0) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non-monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non-monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) calendar days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion.
Notwithstanding the foregoing, the City is not required to give Property Owners notice of default and may immediately pursue remedies for a Property Owner Default that result in an immediate threat to public health, safety or welfare.
8.2 Default by Property Owners.
If Property Owners are alleged to have committed a non-monetary Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (l 0) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Property Owners' appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Property Owners' appeal of the Notice of Default is timely and in good faith but after a public hearing of Property Owners' appeal the City Council concludes that Property Owners are in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Property Owners' appeal is communicated to Property Owners in writing.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Property Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Property Owners with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Property Owners timely appeal any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Property Owners.
Any such judicial challenge must be brought within thirty (30) days of service on Property Owners, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Property Owners allege a City Default and alleges that the City has not cured the Default within the Cure Period, Property Owners may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Property Owners' performance hereunder shall neither be a Property Owner 15 407
Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Property Owners' option (and provided Property Owners deliver written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a otice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Property Owners and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Property Owners and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Property Owners or City for such efforts. For the above reasons, City and Property Owners agree that damages would not be an adequate remedy if either City or Property Owners fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Property Owners if City fails to carry out its obligations under this Agreement or to compensate City if Property Owners falls to carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Property Owners as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Property Owners' indemnity obligations set forth in Article
10. In no event shall damages be awarded against the City or Property Owners upon an event of default or upon termination of this Agreement. Property Owners expressly agree that the City, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Property Owners hereby expressly waive any such monetary damages against the City. The sole and exclusive judicial remedy for Property Owners in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief.
8.8 Additional City Remedy for Property Owners' Default.
In the event of any Default by Property Owners, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, 16 408
dedications, or improvements to public property which it may have received prior to Property Owners' Default without recourse from Property Owners or their successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement.
8. IO Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation ( collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1 71 7 in the absence of this Agreement. These costs and expenses include, but are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions.
Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force maj eure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Property Owners' obligation to pay Public Benefit Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Property Owners.
10.1 Indemnity Arising From Acts or Omissions of Property Owners.
Property Owners shall indemnify, defend, and hold harmless City and City's officials, employees, agents, attorneys, and contractors ( collectively, the "City's Affiliated Parties") from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Property Owners or Property Owners' agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Property Owners relating to the Property or pursuant to this Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Property Owners shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
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In addition to its indemnity obligations set forth in Section 10.1, Property Owners shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, City staff costs, and court costs. City shall promptly notify Property Owners of any such Claim and City shall cooperate with Property Owners in the defense of such Claim. If City fails to promptly notify Property Owners of such Claim, Property Owners shall not be responsible to indemnify, defend, and hold City hannless from such Claim until Property Owners are so notified and if City fails to cooperate in the defense of a Claim Property Owners shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Property Owners' indemnity obligation, provided that such counsel shall reasonably cooperate with Property Owners in an effort to minimize the total litigation expenses incurred by Property Owners. In the event either City or Property Owners recover any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Property Owners shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date Property Owners shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Property Owners in connection with Property Owners' Development of the Project.
The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
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11. Assignment.
Property Owners shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Property Owners' interest in or fee title to the Property, in whole or in part, to any person, partnership, joint venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall become the "Property Owner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance (i.e., through approval of subdivision map or lot line adjustment) and any such Transfer shall include the assignment and assumption of Property Owners' rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Property Owners' rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Property Owners (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Property Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Property Owners assign to the successor Property Owner and the successor Property Owner assumes from the transferring Property Owners all of the rights and obligations of the transferring Property Owners with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Transferred that are a condition precedent to the successor Property Owners' right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Property Owners under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Property Owners with respect to the balance of the Property, without Property Owners' written consent.
Notwithstanding any Transfer, the transferring Property Owners shall continue to be jointly and severally liable to City, together with the successor Property Owner, to perform all of the transferred obligations set forth in or arising under this Agreement unless the transferring Property Owners are given a release in writing by City, which release shall be only with respect to the portion of the Property so Transferred in the event of a partial Transfer. City shall provide such a release upon the transferring Property Owners' full satisfaction of all of the following conditions:
(i) the transferring Property Owners no longer have a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Property Owners are not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Property Owners have provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Property Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Property Owners to City to secure performance of the successor Property Owner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question 19 411
is not a secured obligation, the successor Property Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Property Owner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. Any determination by the City in regards to the second paragraph of Section 11 subpart (iv) (A) and/or (B) shall be documented in writing.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Property Owners in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Property Owners or other affirmative covenants of Property Owners, or to guarantee this performance except that:
(i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Property Owners is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Property Owners of their obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default within ten (10) days after receiving a Notice of Default with respect to a monetary Default and within thirty (30) days after receiving a Notice of Default with respect to a non-monetary Default. If the Mortgagee can only remedy or cure a non-monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default within 20 412
thirty (30) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the thirty (30)-day period. In the case of a non-monetary Default that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the nonmonetary Default within thirty (30) days and diligently prosecutes the cure to completion.
13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy.
14. Miscellaneous Terms.
14.1 Reserved.
14.2 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: I
TO CITY:
With a copy to:
IN CARE OF:
TO PROPERTY OWNERS:
With a copy to:
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Attorney
NBCC LLC
Eagle Four Partners, LLC
1400 Newport Center Drive
Suite 230
Newport Beach, CA 92660
Golf Realty Fund, a California limited partnership,
Managing Owner
One Upper Newport Plaza
Newport Beach, CA 92660
Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
Irvine, CA 92612
Attn: Sean Matsler
21 413
Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13 .1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above.
14.3 Project as a Private Undertaking.
Any future Development of the Project is a private undertaking. Neither Party will be acting as the agent of the other in any respect, and each Party will be an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner or user of the Property.
14.4 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
14.5 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorney's fees incurred by the City in furnishing an estoppels certificate.
14.6 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive.
14.7 Time Is of the Essence.
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Time is of the essence regarding each provision of this Agreement as to which time is an element.
14.8 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future.
14.9 Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same agreement.
14.10 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement.
14.11 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Property Owners shall not receive any of the benefits of this Agreement if any of Property Owners' obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Property Owners shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Property Owners' obligations under this Agreement.
The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date.
14.12 Construction.
This Agreement has been drafted after negotiation and revision. Both City and Property Owners are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Property Owners had the opportunity to be so represented and voluntarily chose to not be so represented. City and Property Owners each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning and applicable principle or presumptions of contract construction or interpretation, if 23 415
any, shall be used to construe the whole or any part of this Agreement in favor of or against either Party.
14.13 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof, subject to Section 11. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 14.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11.
14.14 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Property Owners. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity.
14.15 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court.
14.16 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement.
14.17 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows:
24 416
EXHIBIT DESCRIPTION DESIGNATION
A-1 Legal Description of NBCC Property
A-2 Conceptual Depiction of Property
B-1 Depiction of the NBCC Property
14.18 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 25 417
SIGNATURE PAGE TO CITY OF NEWPORT BEACH & EAGLE FOUR PARTNERS
ON BEHALF OF NBCC, LLC & GOLF REAL TY FUND DEVELOPMENT
AGREEMENT CONCERNING PROPERTIES REFERENCED AS THE FAIRWAY
THREE PROJECT LOCATED WITHIN THE NEWPORT BEACH COUNTRY CLUB
PLANNED COMMUNITY DISTRICT
ATTEST:
Lena Shumway
City Clerk
APPROVED AS TO FORM:
26 "PROPERTY OWNERS"
Eagle Four Partners LLC, a California
limited liability company on behalf of
NBCC, LLC
By: ----------
Name: Kevin Martin
Title: Manager
Golf Realty Fund, a California limited
partnership, Managing Owner
By:
Name: Robert O Hill
Title: Managing Director
"CITY"
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
Lauren Kleiman, Mayor
418
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of _________ }
On ___________ , 20 __ before me, ______________ , Notary Public, personally appeared ______________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
-26-
419
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of _________ }
On ___________ , 20 __ before me, _____________ , Notary Public, personally appeared _____________________ , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalfofwhich the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
-28-
420
EXHIBIT A-1
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
AND THAT PORTION OF BACK BAY DRIVE AS SHOWN ON PARCEL MAP NO. 79- 704, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF
PARCEL MAPS, THAT WOULD ATTACH BY OPERATION OF THE LAS TO ABUTTING PROPERTY OWNERS BY VACATION RECORDED OCTOBER 17, 1989 AS INSTRUMENT NO. 89-558952, OF OFFICIAL RECORDS.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND.
TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING
AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM
THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK, OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED
HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO
REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERA TE THROUGH THE SURFACE OR THE UPPER 500
FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93-0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-51 AND APN: 442-011-52
PARCEL B:
PARCEL 3 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN 421
BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFROM AND STORING IN AND REMOVING
THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN
THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO,
THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS
UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO
REDRILL, RETUNNEL , EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERA TE THROUGH THE SURFACE OR THE UPPER 500
FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93-0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-53
2 422
EXHIBIT A-2
CONCEPTUAL DEPICTION OF PROPERTY
423
EXHIBIT B-1
DEPICTION OF NBCC PROPERTY
424
EXHIBIT “C”
CEQA CONSISTENCY ANALYSIS PREPARED BY T&B PLANNING INC. AND DATED SEPTEMBER 2026
Available via link due to bulk at:
https://ecms.newportbeachca.gov/WEB/Browse.aspx?id=3287083&dbid=0&repo=CNB 425
Attachment B
Planning Commission Staff Report dated September 17, 2026 426
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
September 17, 2026
Agenda Item No. 2
SUBJECT: Fairway Three (PA2025-0019)
▪ Development Agreement
SITE LOCATION: 1 Clubhouse Drive – Housing Element Site ID No. 353 APPLICANT: Eagle Four Partners
OWNER: Golf Realty Fund LP
PLANNER: Jenny Hannsun, Associate Planner
949-644-3212 or [email protected]
PROJECT SUMMARY
The applicant is proposing a Development Agreement in connection with the potential future development of Fairway Three, a residential development consisting of up to 78 residential units at the northeastern portion of the Newport Beach Country Club (NBCC) (Project). No actual project or construction is proposed at this time. Before submitting an application for entitlements for this Project, the applicant is requesting a development agreement (DA) between the applicant and the City, pursuant to Chapter
15.45 (Development Agreements) of the Newport Beach Municipal Code (NBMC), which would provide the applicant with the vested right to develop the Project for a term of five years and to provide negotiated public benefits to the City.
RECOMMENDATION
1) Conduct a public hearing;
2) Find this Development Agreement is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because the Development Agreement is consistent with the previously certified Program Environmental Impact Report (SCH No. 2023060699); and
3) Adopt Resolution No. PC2026-025 recommending the City Council approve the Development Agreement filed as PA2025-0019 (Attachment No. PC 1). 427
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
VICINITY MAP
GENERAL PLAN ZONING
LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE Parks and Recreation (PR) Newport Beach County Club Planned Community (PC47)
Newport Beach Country
Club and Golf Course
NORTH General Commercial
Office (CO-G) Office-General (OG) Bank
SOUTH
Multiple Residential (RM),
General Commercial (CG),
and PR
Villa Point Apartments
Planned Community (PC30),
Use Permit No. 3641, and
PC47
Multi-family residential
and Armstrong Garden
Center
EAST RM and Visitor Serving
Commercial (CV)
Santa Barbara Residential
Planned Community (PC54)
and Commercial VisitorServing (CV)
Multi-family residential
(Granville) and Hotel
WEST RM Sea Island Apartments
Planned Community (PC21) Multi-family residential
Subject Property
Site ID No. 353
(Project Site)
Site ID No. 354
428
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
INTRODUCTION
Project Setting
The 128.49-acre property of the Newport Beach Country Club (NBCC) and golf course is generally bounded by Jamboree Road to the west, East Coast Highway to the south, Santa Barbara Drive to the north, and intervening development towards the east along Newport Center Drive (Property). The Property is primarily surrounded by multi-family residential developments with Fashion Island located approximately 520 feet to the east.
Figure 1, the Newport Beach Country Club and Golf Course Background
Housing Opportunity (HO) Overlay Zoning District
On September 24, 2024, the Newport Beach City Council adopted Ordinance Nos. 2024- 16 and 2024-17, approving amendments to Title 20 (Planning and Zoning) of the Newport Subject Property
429
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Beach Municipal Code (NBMC) to establish the Housing Opportunity (HO) Overlay Zoning Districts in Section 20.28.050 (Housing Opportunity (HO) Overlay Zoning Districts) (Housing Overlay) of the NBMC and to create multi-unit objective design standards in Section
20.48.185 (Multi-Unit Objective Design Standards) of the NBMC. The new sections serve to implement Policy Actions 1A through 1G and 3A in the 6th Cycle Housing Element of the General Plan. Properties identified as a Housing Opportunity Site have specified development allowances conducive to residential development at the prescribed average density of 20 to 50 dwelling units per acre. The standards include but are not limited to minimum lot area, setbacks, height, open space, landscaping, and parking. The multi-unit objective design standards are applicable to any residential project with a minimum density of 20 dwelling units per acre to ensure the highest possible design quality and provide a baseline standard for new multi-unit developments throughout the City.
Section 20.28.050 of the NBMC allows for new housing opportunities within five subareas to ensure the City can accommodate its 6th Cycle RHNA allocation. These subareas correspond to the Focus Areas identified in the Housing Element and are as follows:
• Airport Area Environs Area (HO-1)
• West Newport Mesa Area (HO-2)
• Dover-Westcliff Area (HO-3)
• Newport Center Area (HO-4)
• Coyote Canyon Area (HO-5)
Properties identified within these subareas are eligible for specified development allowances conducive to residential development at the prescribed average density of 20 to 50 dwelling units per acre. The standards include but are not limited to minimum lot area, setbacks, height, open space, landscaping, and parking. Each of the five subareas is also subject to a development limit that identifies the maximum number of dwelling units allowed.
The Property is categorized as Parks and Recreation (PR) by the General Plan and located within the Newport Beach Country Club Planned Community (PC47) Zoning District. Although the entire Property is not considered a Housing Overlay Site, the Property has two areas within the HO-4 (Newport Center Area) Subarea, Site ID No. 353 located towards the northeastern portion of the Property and Site ID No. 354 located towards the south of the Property, as shown in Figure 2 below (HO Sites). The Project will be located within Site ID No. 353 (Project Site). The development limit for the HO-4 Subarea is 2,439 units and the required average density range is 20 to 50 dwelling units per acre. Figure 2 below depicts properties identified as housing sites within the HO-4 Subarea and eligible for the development of housing pursuant to the Housing Overlay of the NBMC.
430
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Figure 2, HO-4 (Newport Center Area) Subarea map
Subject Property
HO Site ID No. 353
(Project Site)
HO Site ID No. 354
431
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Coastal Land Use Plan and Title 21 Amendment
In addition to the approved amendments to Title 20 as discussed above, implementation of the Housing Overlay in the coastal zone required an amendment to the City’s Local Coastal Program (LCP) which consists of the Coastal Land Use Plan (CLUP) and the Implementation Plan (IP), or Title 21, of the NBMC. The CLUP sets forth goals, objectives, and policies that govern the use of land and water in the coastal zone within the City and its sphere of influence, except for Newport Coast and Banning Ranch. Title 21 provides the zoning and development standards for those properties within the coastal zone.
On July 23, 2024, the Newport Beach City Council adopted Resolution No. 2024-52 authorizing the submittal of the corresponding Local Coastal Program Amendment (LCPA) to the California Coastal Commission (CCC) to amend the City's CLUP and Title 21 of the NBMC. The LCPA would establish the Housing Overlay Coastal Zoning Districts and their corresponding development standards applicable to properties located within the coastal zone to implement the Housing Element. The amendments would be complementary to the General Plan Land Use Element and Title 20 and included updated and new policies to implement the Housing Element programs and strategies. The City submitted the LCPA application to the CCC on August 16, 2024, and it was deemed filed by CCC staff on January 7, 2025.
On April 17, 2026, the CCC considered the LCPA, identified as LCPA No. LCP-5-NPB-24- 0032-2, to incorporate changes to both the CLUP and Title 21 of the NBMC to establish the Housing Overlay on selected parcels within the coastal zone. The LCP amendments were approved with suggested modifications by the CCC.
On May 26, 2026, the Newport Beach City Council adopted the LCPA with the CCC’s suggested modifications to the CLUP through Resolution No. 2026-30. Subsequently, on June 9, 2026, the City Council adopted the suggested modifications to Title 21 of the NBMC through Ordinance No. 2026-05.
On July 9, 2026, the CCC certified the LCPA and the Housing Overlay became effective in the coastal zone. The amendments included the two HO Sites on the Property.
Project Description
Pursuant to Chapter 15.45 (Development Agreements) of the NBMC, the applicant is requesting a development agreement (DA) with the City for vested rights to develop up to 78 residential dwelling units on the Project Site.
No specific design for the Project is included in this application, and no construction is proposed. Buildout of the Project would require future entitlements, including but not limited to, a site development review and a tentative tract map by the Planning Commission prior to building permit issuance.
432
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
The proposed DA, which is described in more detail below, would provide the applicant with the vested right to develop the Project for a term of five years and a requirement to provide negotiated public benefits to the City.
DISCUSSION
Development Agreement
Pursuant to Section 15.45.020(A)(2)(a)(Development Agreement Required) of the NBMC, a DA is not required because the Project does not include a legislative act (i.e., a General Plan Amendment or Zoning Code Amendment) nor does the City’s 6th Cycle General Plan Housing Element require applicants to enter into DAs to develop housing units located on Housing Opportunity Sites. Nonetheless, the applicant is requesting a voluntary DA to vest rights to develop the Project for a term of five years. Additionally, the Project will be required to pay public benefit fees as part of the DA. The Project would also voluntarily provide much-needed housing opportunities in the City in furtherance of the certified Housing Element.
The DA provides assurance that the applicant may proceed with the Project in accordance with existing policies, rules and regulations, and conditions of approval.
Additionally, the DA helps the applicant avoid a waste of resources and escalated costs of the Project while encouraging a commitment to private participation in comprehensive planning.
Public Benefits
Article 3 (Public Benefits) of the draft DA outlines the public benefits due to the City in exchange for vested development rights. Pursuant to Section 3.1 (Public Benefit Fee), the applicant will be required to pay a public benefit fee of $128,205 per residential unit, paid prior to the issuance of the grading permit, for any portion of development of the 78 residential units. The public benefit fee is inclusive of Park Fees and Development Impact Fees (DIFs), adopted by the City pursuant to Resolution Nos. 2024-75 and 2024-83. The City anticipates that the Park Fees will be approximately $60,000 per unit and DIFs will be roughly $9 per square foot of development. Any remaining fees, up to the $128,205 maximum per unit, may be used for any public purpose at the discretion of the City Council. In contrast, the Park Fees and DIFs must be used for the intended public purpose (i.e., parks, recreation, police, fire, water, and sewer).
As required by Subsection 3.1.1 (Consumer Price Index [CPI] Increase), of the DA, the public benefit fee shall be increased based upon percentage increases in the Consumer Price Index (CPI) as provided in the DA. Assuming all units are developed, this would result in a potential public benefit fee of $9,999,990, before any CPI escalation is applied. 433
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Importantly, separate payment of Traffic Fair Share Fees and San Joaquin Hills Transportation Corridor Agency Fees would be required and are not included within the public benefit fee.
General Plan Consistency
The Project is consistent with the Goals and Policies of the recently updated General Plan, adopted in June 2026. Pursuant to General Plan Land Use Element Policy LU-11.1 (Residential Uses and Residential Densities [Focus Area]), residential use of any property included within an established housing opportunity overlay zoning district is allowed regardless of the underlying land use category or density limit established through Table LU-1 (Anomaly Locations) and Table LU-2 (Land Use Designations). An amendment to the General Plan is not required to develop residential uses within an established housing opportunity zoning overlay district. Therefore, although the Project Site has a General Plan land use category of Parks and Recreation (PR), a general plan amendment is not required to implement the Project because the Project proposes to vest the rights for the development of residential uses located within the HO-4 (Newport Center Area) Subarea of the Housing Overlay.
Additionally, General Plan Land Use Element Policy LU-1.7 (Housing Opportunity Overlay) supports the development of housing in the housing opportunity overlay zones consistent with the densities and development limits identified in the Zoning Code and Table LU-3 (Housing Opportunity Overlay). The DA will support the future development of the Project, which will comply with the development standards and densities pursuant to Section 20.28.050 of the NBMC and General Plan policies that pertain to design, compatibility, lighting, public views, etc.
Environmental Review
Pursuant to the California Environmental Quality Act (CEQA) as set forth in California Public Resources Code Section 21000 et seq. and its implementing guidelines set forth in California Code of Regulations, Title 14, Division 6, Chapter 3 (CEQA Guidelines), the City Council adopted Resolution No. 2024-50 on July 23, 2024, certifying Final Program Environmental Impact Report SCH No. 2023060699 (PEIR), approving a Mitigation Monitoring and Reporting Program (MMRP), and adopting Findings and a Statement of Overriding Considerations related to the implementation of the Housing Element involving amendments to the General Plan, Coastal Land Use Plan, and Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the NBMC which are available at: Housing Implementation Program EIR.
The Project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because, inasmuch as the Property is within the HO-4 Subarea, the Project does not change the underlying land use or zoning designations; and would not result in new significant impacts or a substantial more adverse impact than addressed in the PEIR. 434
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Section 15183 of the CEQA Guidelines provides, in relevant part:
a. Projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an environmental impact report (EIR) was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies.
b. In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:
i. Are peculiar to the project or the parcel on which the project would be located;
ii. Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent;
iii. Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action; or
iv. Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.
c. If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards, as contemplated by subdivision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact. d. This section shall limit the analysis of only those significant environmental effects for which:
i. Each public agency with authority to mitigate any of the significant effects on the environment identified in the EIR on the planning or zoning action undertakes or requires others to undertake mitigation measures specified in the EIR which the lead agency found to be feasible, and 435
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
ii. The lead agency makes a finding at a public hearing as to whether the feasible mitigation measures will be undertaken.
e. An effect of a project on the environment shall not be considered peculiar to the project or the parcel for the purposes of this section if uniformly applied development policies or standards have been previously adopted by the city or county with a finding that the development policies or standards will substantially mitigate that environmental effect when applied to future projects, unless substantial new information shows that the policies or standards will not substantially mitigate the environmental effect. The finding shall be based on substantial evidence which need not include an EIR. Such development policies or standards need not apply throughout the entire city or county but can apply only within the zoning district in which the project is located, or within the area subject to the community plan on which the lead agency is relying.
Moreover, such policies or standards need not be part of the general plan or any community plan but can be found within another pertinent planning document such as a zoning ordinance.
As part of its decision-making process, the City is required to review and consider whether the Project would create new significant impacts or significant impacts that would be substantially more severe than those disclosed in the PEIR. Additional CEQA review is only triggered if the Project’s new significant impacts or impacts are more severe than those disclosed in PEIR such that major revisions to the PEIR would be required. A detailed consistency analysis has been prepared by T & B Planning Inc., dated September 2026, and peer reviewed by Kimley-Horn & Associates, Inc., is provided as Exhibit “C” to Attachment No. PC 1 of this staff report and hereby incorporated by reference. The consistency analysis concluded that the Project is consistent with the development density and use characteristics established by the City’s General Plan Housing Implementation Program as analyzed by the PEIR, and the required determinations can be made.
Summary and Next Steps
The Project is consistent with the HO-4 Subarea of the Housing Overlay and will help the City further the Goals and Policies of its Housing Element of the General Plan through the potential development of 78 new residential units.
Pursuant to Section 15.45.050 (Development Agreements – Public Hearing-Notice) of the NBMC, the Planning Commission’s role is to make a recommendation to the City Council for action. If a supportive recommendation is made, City staff intends to bring the matter to the City Council for consideration on October 13, 2026. 436
Fairway Three (PA2026-0019)
Planning Commission, September 17, 2026
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant, and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code.
Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website.
Prepared by:
____________________________
Jenny Hannsun, Associate Planner
LAW/jt
Submitted by:
____________________________
Liz Westmoreland, AICP
Deputy Community Development Director
ATTACHMENTS
PC 1 Draft Resolution
437
Attachment C
Planning Commission Draft Meeting Minutes
438
Planning Commission Meeting
September 17, 2026
1 NEWPORT BEACH PLANNING COMMISSION MINUTES
CITY COUNCIL CHAMBERS – 100 CIVIC CENTER DRIVE
THURSDAY, SEPTEMBER 17, 2026
REGULAR MEETING – 6:00 P.M.
I. CALL TO ORDER - 6:00 p.m.
II. PLEDGE OF ALLEGIANCE – Secretary Greg Reed
III. ROLL CALL
PRESENT: Chair David Salene, Vice Chair Jonathan Langford, Secretary Greg Reed, Commissioner Curtis Ellmore, Commissioner Michael Gazzano, Commissioner, and Commissioner Mark Rosene
ABSENT: Commissioner Tristan Harris
Staff Present: Community Development Director Jaime Murillo, Deputy Community Development Director Liz Westmoreland, Principal Civil Engineer Joshua McDonald, Deputy City Attorney Jose Montoya, Senior Planner Joselyn Perez, Associate Planner Jenny Hannsun, Assistant Planner Jerry Arregui, Administrative Assistant Clarivel Rodriguez, Department Assistant Beatriz Avila
IV. PUBLIC COMMENTS
Newport Beach resident Wade Womack commended the Commission for its professionalism in handling controversial issues and suggested that commissioners refrain from asking speakers not to repeat prior public comments, arguing that repetition can be meaningful to decision-making.
V. REQUEST FOR CONTINUANCES – None
VI. CONSENT ITEMS
ITEM NO. 1 MINUTES OF JULY 9, 2026
Recommended Action: Approve and file
Chair Salene opened public comment, and there was none.
Motion made by Vice Chair Langford and seconded by Secretary Reed to approve the minutes, of July 9, 2026, incorporating revisions recommended by Jim Mosher.
AYES: Ellmore, Gazzano, Langford, Reed, Rosene and Salene NOES: None
ABSTAIN: None
ABSENT: Harris
VII. PUBLIC HEARING ITEMS
ITEM NO. 2 FAIRWAY THREE (PA2025-0019)
Site Location: 1 Clubhouse Drive
439
Planning Commission Meeting
September 17, 2026
2 Summary:
The Applicant is requesting approval of a development agreement in connection with the potential future development of Fairway Three, a residential development consisting of up to 78 residential units at the northeastern portion of the Newport Beach Country Club (NBCC).
No actual project is proposed at this time. Before submitting entitlements for this project, the applicant is requesting a development agreement between the applicant and the City, pursuant to Chapter 15.45 (Development Agreements) of the Newport Beach Municipal Code (NBMC), which would provide the applicant with the vested right to develop the Project for a term of five years and to provide negotiated public benefits to the City.
Recommended Actions:
1. Conduct a public hearing;
2. Find this Development Agreement is not subject to further environmental review pursuant to Section 21083.3 of the California Public Code (PRC) and Section 15183 of the CEQA Guidelines because the Development Agreement is consistent with the previously certified Program Environmental Impact Report (SCH No. 2023060699); and
3. Adopt Resolution No. PC2026-025 recommending the City Council approve the Development Agreement filed as PA2025-0019.
Vice Chair Langford recused himself from this item due to his employer's ownership interest in the project site.
Associate Planner Jenny Hannsun presented the item, explaining that the applicant, Eagle Four Partners, is seeking a voluntary five-year development agreement to vest rights for up to 78 residential units at the northeastern portion of the Newport Beach Country Club (Housing Overlay (HO) Site ID No. 353). No project plans have been submitted. The development agreement would yield an estimated $9.9 million in total public benefit fees, comprising a park fee (~$4.6M), a development impact fee (~$2.2M), and a negotiated general public benefit fee of ~$3.3M. The property is within the coastal zone, and the required Local Coastal Program Amendment was certified in July 2026, making the housing overlay effective for this site. A Section 15183 CEQA consistency analysis was peer-reviewed by Kimley-Horn & Associates, Inc., finding no new impacts. Staff recommended striking conditions of approval from the final resolution, as the Development Agreement will be adopted by ordinance at City Council.
In response to Commissioner Reed’s questions, Associate Planner Hannsun confirmed that the $3.3 million public benefit fee would not be available without the development agreement.
Commissioner Gazzano confirmed that conditions of approval would be applied at the time of future entitlement submittals.
Commissioner Rosene and Commissioner Salene sought clarification on the origin of the 78-unit count and whether it applied to both opportunity sites, and Deputy Community Development Director Liz Westmoreland and Community Development Director Jaime Murillo explained that 78 units is consistent with the housing element's estimated yield for the golf course parcel and is within the Newport Center Area’s development cap; the final project acreage and parcel boundaries will be established through a future subdivision map; the Applicant has committed to building the project in the northeast corner of the site; and some refinements can be made to the 440
Planning Commission Meeting
September 17, 2026
3 DA.
In response to Commissioner Rosene’s inquiry, Community Development Director Murillo confirmed that the Environmental Impact Report that was prepared for the Housing Overlays addressed the development limits and density bonus.
Regarding Chair Salene’s inquiry, Deputy Community Development Director Westmoreland responded that the second housing opportunity site, HO Site ID No. 354, on the subject parcel could be the subject of a future application if the remaining capacity within the overlay allows.
Ex Parte Communications: Secretary Reed and Commissioner Ellmore each reported speaking with the applicant. Commissioner Rosene reported exchanging texts with the applicant's consultant. Commissioner Gazzano reported speaking with the applicant. No others reported ex parte contact.
Applicant representative Shawna Schaffner, Chief Executive Officer of CAA Planning, appeared on behalf of Eagle Four Partners, expressed full support of the staff recommendation, and deferred to staff's thorough presentation.
Public comment was received from resident Jim Mosher, who raised concerns regarding ambiguity in what the development agreement guarantees, the absence of explicit affordable housing commitments, and a potentially incorrect legal description of the subject parcel that may include a separate Parcel B (the parking lot along Pacific Coast Highway).
Deputy Community Development Director Westmoreland noted for the record that the future project will require Planning Commission review, at which time project details and conditions of approval will be addressed.
Motion made by Commissioner Mark Rosene and seconded by Commissioner Michael Gazzano to approve Resolution No. PC2026-025, finding the development agreement consistent with CEQA Section 15183 and recommending City Council approval of PA2025-0019.
AYES: Ellmore, Gazzano, Reed, Rosene and Salene
NOES: None
RECUSE: Langford
ABSENT: Harris
ITEM NO. 3 AMENDMENT TO SETBACK MAP NO. S-11C (PA2026-0016) Site Location: 1653 REEF VIEW CIRCLE
Summary:
On behalf of the Owners, the Applicant requests an amendment to Title 20 (Planning and Zoning) of the Newport Beach Municipal Code (NBMC) to change front setbacks established on Setback Map No. S-11C from 34 feet to 10 feet for 1641 Reef View Circle and 39 feet to 10 feet for 1647 and 1653 Reef View Circle.
Recommended Actions:
1. Conduct a public hearing;
441
Attachment D
Planning Commission Resolution No. PC2026-025 (No Exhibits) 442
RESOLUTION NO. PC2026-025
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING
CITY COUNCIL ADOPTION OF A DEVELOPMENT
AGREEMENT FOR A 78-UNIT RESIDENTIAL DEVELOPMENT
PROJECT LOCATED AT 1 CLUBHOUSE DRIVE (PA2025-0019)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Eagle Four Partners (“Applicant”), on behalf of Golf Realty Fund LP (“Owner”), with respect to property located at 1 Clubhouse Drive, and legally described in Exhibit “A,” which is attached hereto and incorporated by reference (“Property”).
2. The Applicant proposes the future development of Fairway Three, a 78-unit residential development, parking facilities and amenities for residents and guests, new hardscape and landscaping, and utility infrastructure at the northeastern portion of the Property (“Project”).
As a result, the Applicant requests approval from the City of Newport Beach (“City”) of a development agreement (“DA”) pursuant to Chapter 15.45 (Development Agreements) of the Newport Beach Municipal Code (“NBMC”), which provides the Applicant with the vested right to develop the Project for a term of five years in return for negotiated public benefits to the City.
3. The Property is designated Parks and Recreation (PR) by the General Plan Land Use Element and is located within the Golf Course subarea of the Newport Beach Country Club Planned Community (PC-47) Zoning District.
4. The Property is located within the coastal zone. The Coastal Land Use Plan (“CLUP”) category is Parks and Recreation (PR) and it is located within the Newport Beach Country Club (PC-47) Coastal Zoning District.
5. A public hearing was held on September 17, 2026, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of the time, place, and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and Chapters 20.62 and 21.62 (“Public Hearings”) of the NBMC.
Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
Pursuant to the California Environmental Quality Act (“CEQA”) as set forth in California Public Resources Code Section 21000 et seq. and its implementing guidelines set forth in California Code of Regulations, Title 14, Division 6, Chapter 3 (“CEQA Guidelines”), the City Council adopted Resolution No. 2024-50 on July 23, 2024, certifying Final Program Environmental Impact Report SCH No. 2023060699 (“PEIR”), approving a Mitigation Monitoring and Reporting Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 443
Planning Commission Resolution No. PC2026-025
Program (MMRP), and adopting Findings and a Statement of Overriding Considerations related to the implementation of the Housing Element involving amendments to the General Plan, Coastal Land Use Plan, and Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the NBMC which are available at: Housing Implementation Program EIR.
The Project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because, inasmuch as the Properties involved are all within the HO-1 Subarea, the Project does not change the underlying land use or zoning designations; and would not result in new significant impacts or a substantial more adverse impact than addressed in the PEIR.
Section 15183 of the CEQA Guidelines provides, in relevant part:
a. Projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an environmental impact report (“EIR”) was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. This streamlines the review of such projects and reduces the need to prepare repetitive environmental studies. b. In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:
i. Are peculiar to the project or the parcel on which the project would be located; ii. Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent; iii. Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action; or
iv. Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.
c. If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards, as contemplated by subdivision (e) below, then an additional EIR need not be prepared for the project solely on the basis of that impact.
d. This section shall limit the analysis of only those significant environmental effects for which:
Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 444
Planning Commission Resolution No. PC2026-025
i. Each public agency with authority to mitigate any of the significant effects on the environment identified in the EIR on the planning or zoning action undertakes or requires others to undertake mitigation measures specified in the EIR which the lead agency found to be feasible, and ii. The lead agency makes a finding at a public hearing as to whether the feasible mitigation measures will be undertaken.
e. An effect of a project on the environment shall not be considered peculiar to the project or the parcel for the purposes of this section if uniformly applied development policies or standards have been previously adopted by the city or county with a finding that the development policies or standards will substantially mitigate that environmental effect when applied to future projects, unless substantial new information shows that the policies or standards will not substantially mitigate the environmental effect. The finding shall be based on substantial evidence which need not include an EIR. Such development policies or standards need not apply throughout the entire city or county but can apply only within the zoning district in which the project is located, or within the area subject to the community plan on which the lead agency is relying. Moreover, such policies or standards need not be part of the general plan or any community plan but can be found within another pertinent planning document such as a zoning ordinance.
As part of its decision-making process, the City is required to review and consider whether the Project would create new significant impacts or significant impacts that would be substantially more severe than those disclosed in the PEIR. Additional CEQA review is only triggered if the Project’s new significant impacts or impacts that are more severe than those disclosed in PEIR such that major revisions to the PEIR would be required. A detailed consistency analysis prepared by T & B Planning Inc., dated September 2026, and peer reviewed by Kimley-Horn & Associates, Inc., is attached hereto as Exhibit “C” to this resolution and hereby incorporated by reference finds the Project is consistent with the development density and use characteristics in the City’s General Plan Housing Implementation Program as analyzed by the PEIR.
SECTION 3. REQUIRED FINDINGS.
Development Agreement
Although not required pursuant to Section 15.45.020(A)(1) (Development Agreement Required) of the NBMC, a voluntary DA is requested to vest the development rights for the Project over a period of five years. The DA provides the content required in Section 15.45.040 (Development Agreement – Contents) of the NBMC as follows:
1. A voluntary development agreement is requested by the Applicant, as the Project would include a total of 78 residential units. The development agreement includes all the mandatory elements including a term of five years and public benefits that are Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 445
Planning Commission Resolution No. PC2026-025
appropriate to support conveying the vested development rights consistent with the City’s General Plan, the NBMC, and Government Code Sections 65864 et seq.
2. In addition to traffic fair share fees and San Joaquin Hills Transportation Corridor Agency Fees, the Project would provide for a public benefit fee of $128,205 per residential unit (adjusted for inflation), to be paid prior to the issuance of the grading permit for any portion of the 78-unit residential development. The public benefit fee is inclusive of park and development impact fees adopted by the City pursuant to Resolution Nos. 2024-75 and 2024-83. The Project would result in a total public benefit fee of $9,999,990, before any CPI escalation is applied, assuming all 78 residential units are built.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. In accordance with Section 21083.3 of the California Public Resources Code and Section 15183 of the CEQA Guidelines, the Project is consistent with the development density, intensity, and use characteristics established by the City’s General Plan Housing Implementation Program as analyzed by the PEIR, and the required determinations can be made, as detailed in Exhibit “C”; therefore, the Planning Commission finds that no additional environmental review is required to approve the Project.
2. The Planning Commission of the City of Newport Beach hereby recommends the City Council approve the Development Agreement which is attached hereto as Exhibit “B,” and incorporated herein by reference, in compliance with Chapter 15.45 (Development Agreements) of the NBMC and California Code Section 65864 PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF SEPTEMBER, 2026.
AYES: Ellmore, Gazzano, Reed, Rosene and Salene
NOES: None
RECUSE: Langford
ABSENT: Harris
BY:_________________________
David Salene, Chair
BY:_________________________
Greg Reed, Secretary
Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 446
Planning Commission Resolution No. PC2026-025
Attachment(s): Exhibit A – Legal Description
Exhibit B – Development Agreement
Exhibit C – CEQA Consistency Analysis prepared by T&B
Planning Inc. dated September 2026
Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 447
Planning Commission Resolution No. PC2026-025
EXHIBIT “A”
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
AND THAT PORTION OF BACK BAY DRIVE AS SHOWN ON PARCEL MAP NO. 79-704, AS PER MAP FILED IN BOOK 152, PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS,
THAT WOULD ATTACH BY OPERATION OF THE LAS TO ABUTTING PROPERTY OWNERS BY VACATION RECORDED OCTOBER 17, 1989 AS INSTRUMENT NO. 89- 558952, OF OFFICIAL RECORDS.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND.
TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE
LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK, OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED
HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS
RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93- 0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-51 AND APN: 442-011-52
PARCEL B:
PARCEL 3 OF PARCEL MAP NO. 79-704, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 152, Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 448
Planning Commission Resolution No. PC2026-025
PAGES 17 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL
RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF
THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFROM
AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND,
INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM
LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND
SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO
BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND
SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND
TO REDRILL, RETUNNEL , EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE
SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NO. 93-0158178, INSTRUMENT NO. 93-0158179 AND INSTRUMENT NO. 93-0158180, ALL OF OFFICIAL RECORDS.
APN: 442-011-53
Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 449
Planning Commission Resolution No. PC2026-025
EXHIBIT “B”
DEVELOPMENT AGREEMENT
Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 450
Planning Commission Resolution No. PC2026-025
EXHIBIT “C”
CEQA CONSISTENCY ANALYSIS PREPARED BY T&B PLANNING INC. AND DATED SEPTEMBER 2026
https://ecms.newportbeachca.gov/WEB/DocView.aspx?id=3287084&dbid=0&repo=CNB Attachment A – Mitigation, Monitoring, and Reporting Program (MMRP) Applicability Matrix:
https://ecms.newportbeachca.gov/WEB/DocView.aspx?id=3287085&dbid=0&repo=CNB Figure 1-1 – Regional Map
https://ecms.newportbeachca.gov/WEB/DocView.aspx?id=3287082&dbid=0&repo=CNB Figure 1-2 – Local Vicinity Map
https://ecms.newportbeachca.gov/WEB/DocView.aspx?id=3287080&dbid=0&repo=CNB Figure 1-3 – Aerial Photograph
https://ecms.newportbeachca.gov/WEB/DocView.aspx?id=3287081&dbid=0&repo=CNB Docusign Envelope ID: 61EFBB55-328F-84E8-8079-D925EFDEE207 451
Attachment E
Public Comment
452
From: N Kirby Alton <[email protected]>
Sent: September 25, 2026 12:53 AM
To: Hannsun, Jenny
Cc: Dept - City Council; Planning Commission; City Clerk's Office Subject: Fairway Three PA2025-0019 — Request for Council Record, Site 353 Disclosure, and Electronic Notice
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Report phish using the Phish Alert Button above.
Dear Ms. Hannsun, Mayor, and Members of the City Council:
I live in the apartment community across Santa Barbara Drive from the northern edge of Newport Beach Country Club and Housing Opportunity Site 353. I will be traveling outside California through early January and cannot attend upcoming hearings in person. Please place this correspondence in the public record for Fairway Three, PA2025-0019, and confirm receipt.
I understand that the Planning Commission has recommended a Development Agreement that would give Eagle Four Partners up to five years of vested rights to pursue up to 78 residential units. I recognize that the agreement does not yet approve construction. However, that is precisely why the City Council should have basic, measurable information before vesting the unit count and development framework.
The current materials do not clearly identify the legal boundary or gross acreage of Site 353 or of the future Fairway Three project parcel. The location has also been described publicly as both the northeastern and northwestern portion of the country-club property.
My measurement of the apparent non-golf strip between Santa Barbara Drive and the existing golf-course edge is approximately one acre. At the reported 20-to-50 dwellingunit-per-gross-acre range, 78 units would require at least 1.56 gross acres at the stated maximum density.
Before acting on the Development Agreement, please publish and include in the Council record:
1. A scaled, dimensioned exhibit identifying the exact Site 353 and Fairway Three project-parcel boundaries, their gross acreage, and their relationship to Santa Barbara Drive.
2. The City’s written density calculation for 78 units, including the exact gross-acre denominator and whether the 20-to-50 dwelling-units-per-gross-acre range is a binding project-level standard, a subarea average, or another type of planning metric.
3. A statement identifying whether the project will rely on a density bonus, concession, incentive, waiver, transfer of density, or other exception.
4. A clear disclosure of whether any current golf-course land—including fairway, rough, tee, cart path, drainage/irrigation area, landscaped buffer, or other club land—will be included in the development parcel, counted toward density, altered, or removed. 453
5. The complete CEQA Guidelines section 15183 consistency analysis, including its project-boundary and density assumptions.
6. The DA terms that define what is vested, including the unit count, site boundary, maximum height, setbacks, parking, access, landscape buffering, and any golf-course reconfiguration.
If these materials cannot be made available before the Council hearing, I respectfully request that the Council continue the item or condition approval so that no vested development rights become effective until the boundary, acreage, density method, and any effect on existing golf-course land are publicly defined.
Please also add my email address to the electronic noticing list for every future Fairway Three and Site 353 matter, including the Development Agreement, CEQA documents, Site Development Review, tentative tract map, grading/building permits, public hearings, design changes, amendments, extensions, and related staff reports. Please advise of the City Council hearing date, the written-comment deadline, and whether remote public comment will be available.
Thank you,
N. Kirby Alton
3433 Colony Plz
Newport Beach, CA 92660
[email protected]
454
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
October 13, 2026
Agenda Item No. 16
ABSTRACT:
Ryan Wilson of Lawry’s Restaurants Inc. (Applicant) surrendered the Five Crowns Restaurant Limited Term Permit and Coastal Development Permit (PA2023-0202) on December 2, 2025. The Planning Commission took action on September 17, 2026, to confirm that: PA2023-0202 has not been in force or effect since it was voluntarily surrendered on December 2, 2025; cannot be invoked in connection with any further discretionary approvals or entitlements that the Applicant may request; and Resolution 2025-18 presents no live controversy.
For the City Council’s consideration is an appeal of this action by Kenneth J. Catanzarite and Kim E. Catanzarite.
RECOMMENDATIONS:
a) Conduct a de novo public hearing;
b) Find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements; and
c) Adopt Resolution No. 2026-91: A Resolution of the City Council of the City of Newport Beach, California, Denying an Appeal and Upholding the Planning Commission’s Decision Confirming Voluntary Surrender of a Limited Term Permit to Allow a Temporary Outdoor Dining Area with Live Entertainment Located at 3801 East Coast TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jaime Murillo, Community Development Director - 949-644-3209, [email protected]
PREPARED BY: Liz Westmoreland, AICP, Deputy Community Development Director - 949-644-3234, [email protected]
TITLE: Resolution No. 2026-91: Appeal of Action Confirming Surrender of Five Crowns Restaurant Limited Term Permit (PA2023-0202) 455
Resolution No. 2026-91: Appeal of Action Confirming Surrender of Five Crowns Restaurant Limited Term Permit (PA2023-0202)
October 13, 2026
Highway (PA2023-0202) and Confirming Resolution No. 2025-18 Presents No Live Controversy.
DISCUSSION:
An application was filed by the Applicant, concerning property located at 3801 East Coast Highway and legally described as Parcel 1 of Resubdivision 523 (Property). The Applicant requested a limited-term permit and coastal development permit to allow an existing temporary outdoor dining patio to remain for a limited term at Five Crowns Restaurant (Project). The expanded 1,350-square-foot dining area, including an 850-square-foot canopy, was originally approved by an Emergency Temporary Use Permit (ETUP) in 2020 as a temporary addition to the restaurant’s existing outdoor dining area during COVID-19.
A Zoning Administrator public hearing was held on July 25, 2024. The Zoning Administrator continued the item to August 15, 2024, to give the Applicant additional time to address public concerns related to noise. The continued public hearing was held on August 15, 2024. At the conclusion of the hearing, the Zoning Administrator adopted Resolution No. ZA2024- 045, approving the limited term permit and coastal development permit (PA2023-0202).
On August 28, 2024, Ken and Kim Catanzarite (Catanzarite) filed an appeal of the Zoning Administrator’s decision, objecting to the approval of the limited term permit due to concerns regarding related noise impacts to the surrounding residential neighborhood and neighbors; the processing of the use as a temporary use when it should have been processed as an amendment to the original use permit (UP1822), including a parking waiver and addressing hours, live entertainment, and noise; and the continuous unpermitted use of the outdoor area for events with live entertainment.
A public hearing was held by the Planning Commission on December 5, 2024. At the conclusion of the hearing, the Planning Commission upheld the Zoning Administrator’s decision and denied the appeal, as set forth in Planning Commission Resolution No.
PC2024-27.
On December 18, 2024, Catanzarite filed an appeal of the Planning Commission’s decision to the City Council due to noise concerns and impacts to the neighborhood. A public hearing was held by the City Council on April 29, 2025. At the conclusion of the hearing, the City Council upheld the Planning Commission’s decision and denied the appeal, as set forth in Resolution No. 2025-18.
Since then, the Applicant has voluntarily surrendered PA2023-0202, and the City of Newport Beach (City) accepted the surrender effective December 2, 2025.
Planning Commission
On September 17, 2026, the Planning Commission took action to affirm that PA2023- 0202 has not been in force and effect since it was surrendered on December 2, 2025, and cannot be invoked in connection with any further discretionary approvals or 456
Resolution No. 2026-91: Appeal of Action Confirming Surrender of Five Crowns Restaurant Limited Term Permit (PA2023-0202)
October 13, 2026
entitlements that the Applicant may request. The Planning Commission staff report is included as Attachment B, and the draft minutes are included as Attachment C.
Appeal
Kenneth J. Catanzarite and Kim E. Catanzarite (Appellants) filed an appeal of the action on September 22, 2026 (Attachment D). The appeal letter did not cite specific concerns; however, the Appellants submitted public comments in opposition of the action in advance of the Planning Commission meeting on September 17, 2026 (Attachment D). Kenneth J.
Catanzarite also provided oral comments during the meeting.
The Appellants stated in the public comment letter that they “do not object to the Planning Commission confirming that PA2023-0202 is no longer in effect, has not been in effect since surrender, and cannot be invoked by Five Crowns, Lawry’s, FVP II, the City, or any other person in connection with any future discretionary approval or entitlement.” The Appellants acknowledge and conditionally agree to the purpose of the resolution.
However, the Appellants believe that the resolution confirming surrender of the permits should expand its scope to include other determinations.
The Appellants’ comments generally express concerns regarding the limits of the existing Conditional Use Permit, the pending Conditional Use Permit application, and the potential baseline for future analysis. The Appellants request additional information be included in the draft resolution and request that several documents be included in the record for the pending Conditional Use Permit.
Response to Appeal
The Appellant’s comments primarily relate to the pending Conditional Use Permit application (PA2025-0208) that is still under review by the City and the surrendered Limited Term Permit and Coastal Development Permit (PA2023-0202). The pending Conditional Use Permit is currently under review by staff and the item will be evaluated independently at a future public hearing with the Planning Commission. The City Council is not being asked to evaluate the merits of the pending Conditional Use Permit.
Additionally, the prior Limited Term Permit and Coastal Development Permit are no longer valid and do not govern operations at the Five Crowns Restaurant since the permits were surrendered in December 2025.
The City Council is being asked to confirm an action that has already taken place.
FISCAL IMPACT:
There is no fiscal impact related to this item.
457
Resolution No. 2026-91: Appeal of Action Confirming Surrender of Five Crowns Restaurant Limited Term Permit (PA2023-0202)
October 13, 2026
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Notice of this hearing was also published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant, and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the city website.
ATTACHMENTS:
Attachment A – Draft Resolution
Attachment B – Planning Commission Staff Report, September 17, 2026 Attachment C – Planning Commission Meeting Minutes, September 17, 2026 Attachment D – Appeal
Attachment E – Materials Submitted by Appellant
458
Attachment A
Draft Resolution
459
RESOLUTION NO. 2026-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, DENYING AN
APPEAL AND UPHOLDING THE PLANNING
COMMISSION'S DECISION CONFIRMING VOLUNTARY
SURRENDER OF A LIMITED TERM PERMIT TO ALLOW
A TEMPORARY OUTDOOR DINING AREA WITH LIVE
ENTERTAINMENT LOCATED AT 3801 EAST COAST
HIGHWAY (PA2023-0202) AND CONFIRMING
RESOLUTION NO. 2025-18 PRESENTS NO LIVE
CONTROVERSY
WHEREAS, the City of Newport Beach ("City") is governed, in part, by the Charter of the City of Newport Beach, Newport Beach Municipal Code, and Council Policies; WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, an application was filed by Ryan Wilson, of Lawry's Restaurants Inc. ("Applicant"), concerning property located at 3801 East Coast Highway, and legally described as Parcel 1 of Resubdivision 523;
WHEREAS, the Applicant applied for a limited term permit and coastal development permit ("CDP") to allow an existing temporary outdoor dining patio to remain for a limited term at the Five Crowns Restaurant ("Project");
WHEREAS, the expanded 1,350-square-foot dining area includes an 850-squarefoot canopy that was originally approved by an Emergency Temporary Use Permit ("ETUP") in 2020 as a temporary addition to the Restaurant's existing outdoor dining; WHEREAS, on July 25, 2024, a public hearing was held by the Zoning Administrator, on line via Zoom. A notice of the time, place, and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M.
Brown Act") and Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was presented to and considered by the Zoning Administrator at this hearing which was continued to August 15, 2024;
WHEREAS, at the conclusion of the continued hearing, the Zoning Administrator adopted Resolution No. ZA2024-045 approving the Limited Term Permit PA2023-0202; 460
Resolution No. 2026-
WHEREAS, on August 28, 2024, Ken and Kim Catanzarite filed an appeal of the Zoning Administrator's decision objecting to the approval of Limited Term Permit PA2023- 0202 based on noise impacts to the surrounding residential neighborhood as well as objections to processing the request as a limited term permit rather than a use permit and the continuous use of the outdoor area for events with live entertainment; WHEREAS, on December 5, 2024, a public hearing was held by the Planning Commission in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with Ralph M. Brown Act and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC.
Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.
PC2024-027 by a unanimous vote (6 ayes, 0 nays, and 1 recusal), approving the Project and upholding the Zoning Administrator's approval of Limited Term Permit PA2023-0202 ("PA2023-0202");
WHEREAS, Ken and Kim Catanzarite filed an appeal of the Planning Commission's decision to the City Council due to noise concerns and impacts to the neighborhood; WHEREAS, on April 29, 2025, a public hearing was held by the City Council in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M.
Brown Act and Chapter 20.62 and 21 .62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, at the conclusion of the hearing, the City Council upheld the Planning Commission's decision and denied the appeal as set forth in Resolution No. 2025-18; WHEREAS, the Applicant voluntarily surrendered PA2023-0202 and the City accepted that surrender effective December 2, 2025;
WHEREAS, on September 17, 2026, the Planning Commission adopted Resolution No. 2026-027 by unanimous vote (6 ayes, 0 nays) confirming voluntary surrender of a limited term permit to allow a temporary outdoor dining area with live entertainment and confirming Resolution No. 2025-18 presents no live controversy; WHEREAS, on September 22, 2026, an appeal was filed by Kenneth J.
Catanzarite and Kim E. Catanzarite; and
461
Resolution No. 2026-
WHEREAS, a de nova public hearing was held by the City Council on October 13, 2026, in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California.
A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act and Chapter 20.62 and 21 .62 (Public Hearings) of the NBMC.
Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council does hereby confirm that PA2023-0202 is of no further force and effect and has not been in effect as of December 2, 2025.
Section 2: The City Council has considered the decision of the Planning Commission and further confirms that Resolution No. 2025-18 presents no live controversy as a result of the voluntary surrender of PA2023-0202. Resolution No. 2025-18 served as the vehicle to approve PA2023-0202; with the surrender of PA2023-0202, the Resolution has no independent utility. Resolution No. 2025-18 shall not be invoked for any further discretionary approvals or entitlements that the Applicant may request.
Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
462
Resolution No. 2026-_
Section 5: The City Council finds that this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060( c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements.
Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 13th day of October, 2026.
ATTEST:
Lena Shumway
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Ad ~ rpc ff~
City Attorney
Lauren Kleiman
Mayor
463
Attachment B
Planning Commission Staff Report, September 17, 2026
464
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
September 17, 2026
Agenda Item No. 4
SUBJECT: Five Crowns Restaurant Limited Term Permit (PA2023-0202) SITE LOCATION: 3801 East Coast Highway
APPLICANT: Ryan Wilson of Lawry’s Restaurants Inc.
OWNER: FPV II Partnership
PLANNER: Liz Westmoreland, AICP, Deputy Community Development Director 949-644-3234, [email protected]
PROJECT SUMMARY
Ryan Wilson of Lawry’s Restaurants Inc. surrendered PA2023-0202 on December 2, 2025. The purpose of this action is to confirm that the PA2023-0202 has not been in force and effect since it was voluntarily surrendered on December 2, 2025, and cannot be invoked in connection with any further discretionary approvals or entitlements that the Applicant may request.
RECOMMENDATION
1) Find this action is not is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements. 2) Adopt Resolution No. PC2026-027 confirming that PA2023-0202 is of no further force and effect and has not been in effect since December 2, 2025. The Resolution shall further confirm that, as a result of the Applicant’s voluntary surrender of PA2023-0202, Resolution No. 2025-18 presents no live controversy and shall not be relied upon or invoked in connection with any future discretionary approvals, or entitlements requested by the Applicant.
1 465
INTENTIONALLY BLANK PAGE 2
466
Five Crowns Temporary Outdoor Dining (PA2023-0202)
September 17, 2026
INTRODUCTION
Project Background
An application was filed by Ryan Wilson, of Lawry’s Restaurants Inc. (Applicant), concerning property located at 3801 East Coast Highway and legally described as Parcel 1 of Resubdivision 523 (Property). The Applicant requested a limited-term permit and coastal development permit to allow an existing temporary outdoor dining patio to remain for a limited term at Five Crowns Restaurant (Project). The expanded 1,350-square-foot dining area, including an 850-square-foot canopy, was originally approved by an Emergency Temporary Use Permit (ETUP) in 2020 as a temporary addition to the Restaurant’s existing outdoor dining area during COVID-19.
A Zoning Administrator public hearing was held on July 25, 2024. Evidence, both written and oral, was presented to and considered by the Zoning Administrator at the hearing. The Zoning Administrator continued the item to August 15, 2024, to give the Applicant additional time to address public concerns related to noise.
The continued public hearing was held on August 15, 2024. At the conclusion of the hearing, the Zoning Administrator adopted Resolution No. ZA2024-045, approving the limited term permit and coastal development permit (PA2023-0202).
On August 28, 2024, Ken and Kim Catanzarite (Catanzarite) filed an appeal of the Zoning Administrator’s decision, objecting to the approval of the limited term permit due to concerns regarding related noise impacts to the surrounding residential neighborhood and neighbors; the processing of the use as a temporary use when it should have been processed as an amendment to the original use permit (UP1822), including a parking waiver and addressing hours, live entertainment, and noise; and the continuous unpermitted use of the outdoor area for events with live entertainment.
A public hearing was held by the Planning Commission on December 5, 2024. Evidence, both written and oral, was presented to and considered by the Planning Commission at the public hearing. At the conclusion of the hearing, the Planning Commission upheld the Zoning Administrator’s decision and denied the appeal, as set forth in Planning Commission Resolution No. PC2024-27.
On December 18, 2024, Catanzarite filed an appeal of the Planning Commission’s decision to the City Council due to noise concerns and impacts to the neighborhood. A public hearing was held by the City Council on April 29, 2025. Evidence, both written and oral, was presented to and considered by the City Council at the public hearing. At the conclusion of the hearing, the City Council upheld the Planning Commission’s decision and denied the appeal, as set forth in Resolution No. 2025-18. 3 467
Five Crowns Temporary Outdoor Dining (PA2023-0202)
September 17, 2026
Since then, the Applicant has voluntarily surrendered PA2023-0202, and the City accepted the surrender effective December 2, 2025.
This action affirms that PA2023-0202 has not been in force and effect since it was relinquished on December 2, 2025, and cannot be invoked in connection with any further discretionary approvals or entitlements that the Applicant may request.
ENVIRONMENTAL REVIEW
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities), of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment.
The Class 1 exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use. The Class 1 exemption includes interior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances as well as additions to existing structures of up to 10,000 square feet. The proposed scope of work includes the temporary use of an outdoor dining area of approximately 1,350-square-feet including an 850-square-foot tent canopy with exterior live entertainment at an existing restaurant. Therefore, the project qualifies under the parameters of the Class 1 exemption. There are no known exceptions listed in CEQA Guidelines Section 15300.2 that would invalidate the use of these exemptions.
Submitted by:
_____________________________
Liz Westmoreland, AICP
Deputy Community Development Director
Attachments: Resolution No. PC2026-027
4 468
Attachment C
Planning Commission Meeting Minutes, September 17, 2026 (Excerpt)
469
Planning Commission Meeting
September 17, 2026
5 ABSENT: Harris
VIII. CURRENT BUSINESS
ITEM NO. 4 SURRENDER OF LIMITED TERM PERMIT AND COASTAL DEVELOPMENT PERMIT FOR FIVE CROWNS TEMPORARY PATIO (PA2023-0202)
Site Location: 3801 East Coast Highway
Summary:
On April 29, 2025, the City Council denied an appeal and approved a limited term permit and coastal development permit to allow a temporary outdoor dining patio with live entertainment at Five Crowns Restaurant. However, on December 2, 2025, the Applicant voluntarily surrendered their entitlement. This purpose of this item is to confirm that the rights afforded by the prior approval are void and have not been in force and effect since it was voluntarily surrendered on December 2, 2025, and cannot be invoked in connection with any further discretionary approvals or entitled.
Recommended Actions:
1. Find this action is not is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements.
2. Adopt Resolution No. PC2026-027 confirming that PA2023-0202 is of no further force and effect and has not been in effect since December 2, 2025. The Resolution shall further confirm that, as a result of the Applicant’s voluntary surrender of PA2023-0202, Resolution No. 2025-18 presents no live controversy and shall not be relied upon or invoked in connection with any future discretionary approvals, or entitlements requested by the Applicant.
Deputy City Attorney Jose Montoya stated that the purpose of the action was solely to confirm that the rights afforded under PA2023-0202 are void and have not been in force and effect since the applicant voluntarily surrendered the permit on December 2, 2025, and that the permit cannot be invoked in connection with any future discretionary approvals or entitlements.
Resident owner at 352 and 354 Hazel, Ken Catanzarite, argued that the resolution's recitation of the permit history was factually inaccurate and that the original use permit (UP 1822) had limited the patio to 348 square feet, four tables, and 26 patrons—not the larger area the temporary permit attempted to authorize.
Resident Jim Mosher noted the complex procedural history across multiple resolutions (Zoning Administrator, Planning Commission, and City Council) and questioned whether the Planning Commission has authority to make pronouncements about the City Council's Resolution No. 2025- 18, suggesting the resolution should reference the Commission's own prior resolution instead. 470
Planning Commission Meeting
September 17, 2026
6 Resident Lisa Sutton observed that the outcomes of the Corona del Mar Commercial Corridor Study (Item No. 5) could affect the subject outdoor space going forward.
Deputy City Attorney Montoya offered no additional comments.
Motion made by Commissioner Curtis Ellmore and seconded by Secretary Greg Reed to adopt Resolution No. PC2026-027 confirming that PA2023-0202 is of no further force and effect and has not been in effect since December 2, 2025
AYES: Ellmore, Gazzano, Langford, Reed, Rosene and Salene NOES: None
ABSTAIN: None
ABSENT: Harris
IX. STUDY SESSION
ITEM NO. 5 CORONA DEL MAR COMMERCIAL CORRIDOR STUDY (PA2024-0002) Site Location: Citywide
Summary:
The purpose of this study session is to introduce the Planning Commission to the CdM Study and the proposed amendments to the City of Newport Beach (City) General Plan, Local Coastal Program, and Municipal Code that serve to implement its recommendations. No action will be taken at this study session. The proposed amendments would return to the Planning Commission for a noticed public hearing, at which time it will receive public comment and provide a recommendation to the City Council, as the final decisionmaker.
Senior Planner Joselyn Perez presented the Corona del Mar (CdM) Commercial Corridor Land Use and Mobility Study, which was initiated by City Council direction in response to community concerns about outdated zoning, barriers to private reinvestment, and parking challenges. The study involved extensive outreach to the business community, CdM Residents Association, and the broader public. No formal action was taken at this study session; all proposed code amendments will return for a noticed public hearing.
Programs and Public Improvements to Date: Dynamic parking availability signage has been installed at the beach parking lot; additional signage is planned within the Coast Highway median.
An enhanced pedestrian crossing at Orchid and Coast Highway is scheduled for construction later in 2026. The Newport Beach trolley is planned to extend to CdM in spring 2027. Bike infrastructure, crosswalk bulb-outs, sidewalk improvements, and pedestrian wayfinding signage remain in design.
Proposed Code Amendments (Five Recommendations):
● Revised Land Use and Permitting Requirements: Staff proposed creating a CdM-specific overlay district to streamline permitting for food and beverage and veterinary services, introduce a new "wine bar" land use under a Minor Use Permit, and create a director-level Minor Use Permit (MUP) process—subject to objective standards (e.g., no late hours, outdoor patios closing by 9 PM, live entertainment confined to interior)—to allow faster approvals without a full public hearing. Auto-centric uses (vehicle washing, drive-throughs) and animal boarding/kennels would be prohibited for new entrants but treated as nonconforming for existing businesses, which could relocate within the corridor or intensify 471
Attachment D
Appeal
472
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474
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476
477
478
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KENNETH J. CATANZARITEATTORNEY AT LAW
Direct Dial:
(714) 678-2100
Via Email and US Mail:
City of Newport Beach
CATANZARITE LAW CORPORATION
Attorneys & Counselors at Law
2331 West Lincoln Avenue
Anaheim, California 92801
(714) 520-5544
Facsimile: (714) 520-0680
September 22, 2026
c/o City Clerk Lena Shumway
100 Civic Center Drive
City Attorney Aaron Harp
[email protected]
E-Mail Address:
[email protected]
Direct Fax:
(714) 399-0577
Newport Beach, California 92660
[email protected]
Deputy City Attorney Jose Montoya
[email protected]
City Manager Grace K. Leung
[email protected]
Community Development Director Seimone Jmjis
[email protected]
Re: Five Crowns Restaurant - P A2023-0202
Planning Commission Resolution No. PC2026-027
Notice of Intended Appeal/ Request for Complete Record for City Council Review
Dear City Clerk, Community Development Director, and City Attorney's Office, Kenneth J. Catanzarite and Kim E. Catanzarite intend to timely appeal the Planning Commission's September 17, 2026 action concerning Five Crowns Restaurant, P A2023-0202, and Resolution No. PC2026-027 to the Newport Beach City Council pursuant to Newport Beach Municipal Code Chapters 20.64 and 21.64.
This letter requests preservation, assembly, and inclusion of the complete record relevant to the City Council's de novo or otherwise review.
NBMC Chapters 20.64 and 21.64 provide that upon filing an appeal from a Planning Commission decision, the matter proceeds to the City Council and the record/report prepared for review is to include the application materials relevant to the decision. Council review is de novo.
Accordingly, please preserve and include the following materials in the Council appeal record:
1. The final signed and adopted Resolution No. PC2026-027, including any revisions made before or during the September 17, 2026 hearing.
2. The complete September 17, 2026 Planning Commission agenda packet and all attachments concerning Agenda Item No. 4.
3. The complete staff report and all versions, drafts or revisions circulated to the Planning Commission concerning Agenda Item No. 4.
481
September 22, 2026
Page No. 2
4. The City's native video and audio recording of the September 17, 2026 Planning Commission meeting.
5. The complete YouTube/NBTV recording of the meeting.
6. Any closed-caption file, automated transcript, manually prepared transcript, or other transcription generated or maintained by the City or its video contractor.
7. The final approved minutes of the September 1 7, 2026 meeting when available.
8. The complete staff presentation concerning Agenda Item No. 4.
9. All statements, presentations, advice and responses made on the record by the City Attorney's Office concerning Agenda Item No. 4, including the Deputy City Attorney's statement that the purpose of the action was to confirm that the rights afforded by P A2023-0202 were "void," had not been in force or effect since surrender, could not be invoked in any further discretionary approval or entitlement, and that the Commission was "simply confirming something that has already happened."
10. All written public comments and late correspondence submitted concerning Agenda Item No. 4.
11. The September 16, 2026 written submission of Kenneth J. and Kim E.
Catanzarite.
12. The September 17, 2026 prepared statement and attachments submitted by Kenneth J. and Kim E. Catanzarite.
13. The oral supplemental objections made by Kenneth J. Catanzarite at the September 17 hearing.
14. All written material submitted by Five Crowns, Lawry's Restaurants, FPV II Paiinership or their representatives concerning Agenda Item No. 4.
15. The record reflecting the motion and 6-0 vote on Agenda Item No. 4.
16. Resolution No. ZA2024-045.
17. Planning Commission Resolution No. PC2024-027.
18. The December 18, 2024 Catanzarite appeal to the City Council.
19. The complete April 29, 2025 City Council agenda packet and administrative record concerning P A2023-0202.
20. City Council Resolution No. 2025-18, including all exhibits and conditions of approval.
21. All written documents by which Five Crowns or Lawry's surrendered P A2023-0202.
22. All City documents accepting or confirming that surrender, including the document establishing the City's use of December 2, 2025 as the effective date.
23. All nonprivileged correspondence concerning the City's determination that Resolution No. 2025-18 has no independent utility following surrender of PA2023-0202.
24. All other materials considered, relied upon, presented to, or available to the Planning Commission concerning the action taken on September 17, 2026.
Please preserve the materials above in their native format where available.
Please also confirm whether the City intends to prepare one combined administrative/appellate record for the City Council or whether Appellants should separately lodge any portions of the underlying PA2023-0202 record. 482
September 22, 2026
Appellants reserve the right to supplement this request after review of the official September 17 recording and transcript.
Nothing in this letter constitutes a limitation of the issues that may be presented in the de nova City Council proceeding or a waiver of any claims, defenses, objections, attorneys' fees, costs, or remedies in pending judicial proceedings.
Very truly yours,
enneth J. Catanzarite
For Kenneth J. Catanzarite and Kim E. Catanzarite
483
STATE OF CALIFORNIA
COUNTY OF ORANGE
PROOF OF SERVICE
)
) ss:
The undersigned certifies and declares as follows:
I am over the age of 18 and not a party to this action . My business address is 23 31 West Lincoln A venue, Anaheim, California 92801 , which is in the county where the mailing described below took place.
On September 22 , 2026 I served the within Correspondence Dated September 22, 2026 Re: Five Crowns Restaurant - PA2023 -0202; Planning Commission Resolution No. PC2026 -027; Notice of Intended Appeal / Request for Complete Record for City Council Review by:
[X] (Mai l) I placed a true and correct copy thereof in a sealed envelope addressed as set forth on the attached service list and caused such envelope , with first class postage thereon fully prepaid, to be placed in the U.S. Mail at Anaheim, California, and certify that such envelope was placed for collection and mailing following ordinary business practices. [ ] (Overnight Delivery) I placed a true and correct copy thereof in a sealed envelope addressed as set forth on the attached service list and caused such envelope to be delivered the next day by overnight courier to the addressee(s) listed on the attached service list.
[ ] (Personal Service) I placed a true and correct copy thereof in a sealed envelope addressed as set forth on the attached service list and caused such envelope to be delivered by hand as set forth on the attached service list. [X] (E-mail) I caused the above mentioned document to be served via PDF email attachment to the parties at the e-mail addresses listed on the attached service list.
[X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed September 22, 2026 at Anaheim, California.
484
City of Newport Beach
c/o City Clerk Lena Shumway
100 Civic Center Drive
Newport Beach, California 92660
1 sh um way@newportbeach1c:a, gov
(Via Email and US Mail)
City Manager Grace K. Leung
[email protected]
(Via Email Only)
SERVICE LIST
City Attorney Aaron Harp
aharp@newportbeachc:a.gov
(Via Email Only)
Deputy City Attorney Jose Montoya
[email protected]
(Via Email Only)
Community Development Director
Seimone Jurjis
[email protected]
(Via Email Only)
485
Attachment E
Materials Submitted by Appellant
486
KENNETH J. CATANZARl1EATTORNEY AT LAW
DIRECT DIAL:
(7 I 4) 678-2 I 00
CATANZARITE LAW CORPORAllON
ATTORNEYS &. COUNSELORS AT LAW
233 I WEST LINCOLN AVENUE
ANAHEIM, CALIFORNIA 9280 I
(7 14) 520-5544
FACSIMILE: (714) 520-0680
September 1, 2026
E-MAIL ADDRESS:
[email protected]
DIRECT FAX:
(7 I 4) 399-0577
Via Email Only:
Lena Shumway, City Clerk Mayor and
Members of the Newport Beach City Council,
c/o City Clerk
[email protected]
Seimone Jurjis, City Manager
s j urj [email protected]
Aaron C. Harp, City Attorney
aharp@newportb�a.chca.gov
Jaime Murillo, Community Development
Director
j murillo@newpmibeachca. �ov
Liz Westmoreland, Deputy Community
Development Director
l [email protected]
Melinda Whelan, Associate Planner
[email protected]
John Murray, Code Enforcement Supervisor
[email protected]
City of Newport Beach Community
Development Department
CDD@newJ2Q._rtbeachca.gov
Re: Five Crowns / P A2025-0208 / UP 1822
SUPPLEMENT AL FORMAL OBJECTION; NOTICE OF
CONTROLLING CALIFORNIA SUPREME COURT AUTHORITY;
OBJECTION TO ANY CLASS 1 CATEGORICAL EXEMPTION;
DEMAND FOR CEQA COMPLIANCE; OBJECTION TO USE OF
PA2023-0202, CHAPTER 11/SEBRSS PERMITS, OR OTHER
TEMPORARY ACTIVITY TO MANUFACTURE AN "EXISTING OR
FORMER USE"; ADMINISTRATIVE-RECORD AND
EVIDENCE-PRESERVATION NOTICE; AND SUPPLEMENTAL
CALIFORNIA PUBLIC RECORDS ACT REQUEST
Dear Mr. Jurjis, Mr. Harp, Mr. Murillo, Ms. Westmoreland, Ms. Whelan, Mr. Murray, and Ms.
Shumway:
This letter supplements and incorporates our prior written objections, administrative submissions, California Public Records Act requests, notices concerning Five Crowns' outdoor operations, and objections to the processing of PA2025-0208. It is intended to provide the City, its decisionmakers, its counsel, and its consultants with formal notice of important intervening controlling authority issued by the California Supreme Court on June 25, 2026, and to require that the City address that authority before taking any CEQA or entitlement action on PA2025-0208.
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September 1, 2026
Page No. 2
The intervening decision is Sunflower Alliance v. Department of Conservation (2026) 20 Cal.5th 22, 591 P.3d 829 ("Sunflower"). In Sunflower, the California Supreme Court reversed a Court of Appeal decision that had upheld a Class 1 categorical exemption on the theory that any expansion of the facility's use was "negligible" because, on the facts, the environmental risks of the new use were negligible. The Supreme Court rejected that reasoning, holding that the Class 1 inquiry turns on the change in the nature and degree of the facility's use-not on a prediction that the resulting environmental harm will be small-and remanded for the exemption to be reconsidered "under the proper analytical framework." The decision materially changes and clarifies the legal framework governing any proposed reliance on the Class 1 "Existing Facilities" categorical exemption under CEQA Guidelines section 15301. Its application to Five Crowns is direct and substantial.
The City should not approve, conditionally approve, notice, recommend approval of, or determine P A2025-0208 categorically exempt under Class 1 without first conducting and documenting the analysis Sunflower now expressly requires. Nor should the City permit the applicant to evade that inquiry by describing P A2025-0208 as the mere "retention" of an "existing" patio, by comparing P A2025 against activity conducted under the surrendered PA2023-0202 limited-term permit, by relying on recurring Chapter 11/SEBRSS permits issued after surrender, or by pointing to allegedly "historical" events without identifying their nature, degree, frequency, scope, location, occupancy, hours, entertainment characteristics, and legal authorization.
I. SUNFLOWER IS CONTROLLING AND REQUIRES AN ANALYSIS OF THE
CHANGE IN THE NATURE AND DEGREE OF USE
CEQA Guidelines section 15301 does not categorically exempt a project merely because an existing building or physical facility is involved. The exemption expressly applies only to qualifying activities involving "negligible or no expansion of existing or former use," and the regulation itself states that the "key consideration" is whether the project involves negligible or no expansion of use.
The Supreme Court resolved the meaning of that requirement in Sunflower. The Court held "that the phrase 'negligible or no expansion of existing or former use' in CEQA's class 1 exemption pertains to an expansion or change in the nature or degree of a structure or facility's use, not the risk of environmental harm caused by such an expansion or change in use." (Sunflower, supra, 20 Cal.5th 22.) The Court further held that although "the class 1 exemption may apply to new uses of an existing facility that involve 'negligible or no expansion' of an existing or former use (Guidelines,§ 15301) ... an agency should examine the nature and scope of the proposed expansion of use, rather than its potential environmental effects, in making its exemption determination." (Ibid.)
That distinction is decisive here.
The question is not simply whether the Five Crowns building already exists. It is not simply whether Five Crowns has operated as a restaurant for decades. It is not whether a 488
September 1, 2026
Page No. 3
consultant believes speaker controls, landscaping, valet management, a sound wall, hours restrictions, or other proposed conditions could reduce resulting impacts.
The threshold Class 1 question is: What is the "existing or former use" against which P A2025-0208 is being compared, and does P A2025 involve only a negligible change in the nature and degree of that use?
The agency invoking a categorical exemption bears the burden of demonstrating, with substantial evidence, that the project falls within it. (Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, 705 [ city "had the burden to demonstrate with substantial evidence that the Project falls within a categorical exemption to CEQA"]; cf. Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 386 [agency invoking the common-sense exemption "has the burden of demonstrating it applies"].) The City therefore cannot simply accept the applicant's label "No expansion." It must identify the comparator, identify the relevant characteristics of that comparator, measure the proposed change, and support any exemption determination with substantial evidence applying the correct legal standard.
Sunflower confirms that the Class 1 exemption can extend to a new use of an existing facility where the change in use is genuinely negligible. That does not assist the applicant here; it frames the City's burden. The City must demonstrate, on substantial evidence, that the change in the nature and degree of the outdoor patio and event use - not merely the continued existence of the restaurant building-is negligible. As set fo1ih below, the objective record makes that demonstration untenable.
II. THE OBJECTIVE NUMBERS ALONE PRESENT AN EXTRAORDINARY PROBLEM FOR ANY "NO EXPANSION" OR "NEGLIGIBLE EXPANSION"
FINDING
The operative permanent entitlement following surrender of PA2023-0202 is UP1822 unless the City identifies some other duly approved permanent Title 20 entitlement.
UP1822 reflects approximately 348 square feet of outdoor patio area, four tables, and six patrons per table, for approximately 24 outdoor patrons.
P A2023-0202 was a limited-term permit. Five Crowns surrendered it effective December 1, 2025, and the City confirmed that the rights afforded by that permit terminated upon surrender.
The City's January 8, 2026 project review document for P A2025-0208 nevertheless described the proposed project as a use-permit amendment, parking waiver and coastal development permit to allow "retention of the existing outdoor dining patio with live entertainment as accessory to the restau~ant use," expressly noting that "[t]he patio was previously approved with a limited term permit P A2023-0202" while "[ t]he existing restaurant operates under Use Permit No. UP1822."
489
September 1, 2026
Page No. 4
That description itself demonstrates the issue. A patio that required a limited-term permit is not transformed into a permanent entitlement merely because it physically existed while that temporary permit was in effect.
The October 2025 P A2025 materials described approximately 2,100 square feet of combined outdoor dining/event area. Revised May 26, 2026 materials subsequently used approximately 1,569 square feet of outdoor area and approximately 12,289 square feet of indoor area, while characterizing the proposal as involving "No expansion." The objective comparison is striking.
Increasing the outdoor use from approximately 348 square feet to approximately 1,569 square feet adds approximately 1,221 square feet. The proposed outdoor area is approximately
4.5 times the UP 1822 outdoor area, an increase of approximately 351 percent over the UP 1822 figure.
Increasing the outdoor patron population from approximately 24 persons to approximately 75 persons adds approximately 51 outdoor patrons. Approximately 75 outdoor patrons is 3.125 times the UP1822 outdoor capacity, an increase of approximately 212.5 percent.
These figures concern the paiiicular facility and use being expanded-the outdoor patio/event operation. They should not be diluted by comparing the additional outdoor activity against the gross square footage or total theoretical occupancy of the entire preexisting restaurant.
Sunflower asks whether the relevant use is negligibly expanded. A four-and-one-half-fold outdoor footprint and more-than-threefold outdoor patron capacity cannot simply be buried inside the size of the restaurant as a whole.
If the applicant or City contends that these objective changes nevertheless are "negligible," the administrative record must disclose precisely how and why.
III. THE CHANGE IS QUALITATIVE AS WELL AS QUANTITATIVE
The Sunflower analysis is not confined to square footage. The Supreme Court expressly speaks in terms of the nature as well as the degree of use.
P A2025 does not merely relocate the same 24 diners a few feet within an existing outdoor dining area. The project materials contemplate recurring private events and live entertainment in a substantially enlarged outdoor area, together with increased outdoor occupancy, altered operating hours, event-related parking and valet requirements, and other operational characteristics.
II
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September 1, 2026
Page No. 5
Five Crowns itself publicly represented in 2023 that it "produces 150-200 weddings and events a year" and specifically marketed its greenhouse patio and garden for weddings, rehearsal dinners, bridal showers, engagement parties and other events. Whether all of those events occurred outdoors is a factual matter that Five Crowns and the City should document rather than assume. But the representation confirms that the frequency, location and character of the event business cannot rationally be ignored in defining the nature and degree of the proposed use.
The City has already recognized the materiality of these very subjects. Its completeness review sought information concerning event frequency, event size, maximum occupancy, type of music, regular restaurant use versus event use, recent event information, neighborhood compatibility and sound attenuation. Those are precisely the operational characteristics that Sunflower now requires the City to examine when determining the nature and degree of the proposed use.
Again, an expansion in the nature and degree of the use cannot be dismissed merely because no new restaurant building is proposed.
IV. TIMING, FREQUENCY, AND OPERATIONAL INTENSITY ARE PART OF THE "NATURE AND DEGREE" OF USE THAT SUNFLOWER REQUIRES THE
CITY TO EXAMINE
Because Sunflower directs the City to the change in the nature and degree of the facility's use, the Class 1 inquiry is not satisfied by observing that the restaurant building and its seated capacity are unchanged. An expansion in how often, how late, and how intensively an existing facility is operated is itself an expansion in the nature and degree of its use-even where no square footage is added to the principal structure and no seats are added to the dining room.
That principle is fatal to any suggestion that shifting or extending outdoor operations into recurring evening events is "negligible." A facility that is quiet on most evenings is materially different, in the nature and degree of its use, from the same facility operated as a recurring nighttime outdoor event venue. Categorical exemptions "are construed narrowly and will not be unreasonably expanded beyond their terms." (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 966.)
Published authority confirms that a change in the nature or degree of use of an existing facility defeats Class 1 even where the physical structure is entirely unchanged. In County of Amador, the transfer and reoperation of an existing, physically unaltered hydroelectric facility from nonconsumptive to consumptive water use was "not a negligible expansion of current use"; it was "a major change in focus, and thus does not fall within the ... existing facilities categorical exemption." (County of Amador, supra, 76 Cal.App.4th at p. 967.) The Supreme Court cited that holding with approval in Sunflower. Likewise, in Azusa Land Reclamation Co. v.
Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1195, a massive increase in the volume and intensity of activity within an existing, unchanged footprint could not be treated as a "minor" alteration qualifying for Class 1. The principle is settled: it is the intensification of use, not merely the enlargement of a building, that removes a project from the exemption. 491
September 1, 2026
Page No. 6
Applied to Five Crowns, P A2025 does not merely shift the timing of an unchanged-capacity facility. The presently identified facts involve a several-fold increase in the outdoor operational footprint, a more-than-threefold increase in outdoor patron capacity, recurring private events, live entertainment, later outdoor hours than were applicable under PA2023, and attendant changes in parking, valet, loading, lighting, crowd activity and sound.
Each of those changes goes to the degree and character of the outdoor use, and each must be examined under Sunflower before the City may treat P A2025 as an exempt "existing facility." V. "NO EXPANSION" CANNOT BE MADE TRUE BY DEFINING "EXPANSION"
AS NEW BUILDING CONSTRUCTION
The May 2026 characterization of P A2025 as "No expansion" is especially problematic after Sunflower.
If "No expansion" means only that Five Crowns does not propose to enlarge the principal restaurant building, the statement does not answer the Class 1 question.
The Supreme Court has now held that the inquiry concerns expansion or change in the use of the structure or facility. Thus, the City must determine whether there is expansion in outdoor area, outdoor occupancy, event frequency, event size, entertainment characteristics, nighttime operation, operational intensity, parking and valet demand, loading, and similar characteristics.
The City should therefore require the applicant to state whether its "No expansion" representation means:
• no physical addition to the restaurant building;
• no increase in outdoor operational area;
• no increase in outdoor patron capacity;
• no increase in the frequency, size or intensity of private events; • no expansion of live or amplified entertainment;
• no increase in operating hours; or
• no change of any kind in the nature or degree of the existing or former use.
The present record makes several of those propositions facially difficult, rather impossible to reconcile with the actual application.
VI. THREE DIFFERENT CONCEPTS MUST NOT BE COLLAPSED:
ENVIRONMENTAL BASELINE, LEGAL ENTITLEMENT, AND THE CLASS 1 "EXISTING OR FORMER USE"
For avoidance of any confusion, our objection distinguishes three analytically separate concepts.
First, a CEQA environmental baseline ordinarily concerns actual physical environmental conditions against which environmental change may ultimately be evaluated. We recognize that California baseline cases may permit consideration of actual or recent historical physical conditions in appropriate circumstances.
492
September 1, 2026
Page No. 7
Second, the legal entitlement question is different. After surrender of P A2023-0202, the City must identify the permanent land-use entitlement legally authorizing outdoor area, outdoor occupancy, private events, live entertainment, hours, parking and related operations. Physical activity does not become a pe1manent zoning entitlement merely because it occurred.
Third, Sunflower creates a distinct Class 1 inquiry: the City must identify the "existing or former use" against which the proposed expansion is measured under Guidelines section 15301.
Those concepts cannot be merged into the proposition that "Five Crowns physically operated this way for a period of time; therefore it is existing use; therefore P A2025 is no expansion."
If the City intends to use P A2023 operations as the "former use" for Class 1 purposes, it must say so expressly and identify exactly what P A2023 authorized and what was actually conducted under it. It must then compare that defined former use against P A2025 under Sunflower.
If instead the City maintains, as it has in the pending litigation, that P A2023 was smrendered and all rights under it terminated, the City must explain the legal significance it nevertheless proposes to assign those temporary operations in PA2025.
The permit cannot simultaneously disappear when judicial review of P A2023 is sought while its operational history is treated as a permanent or presumptive starting point for characterizing PA2025 as "No expansion."
Nor may unauthorized or temporarily permitted conduct acquire a permanent land-use entitlement through repetition, administrative tolerance, nonenforcement, or the subsequent issuance of event-specific pe1mits. Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal.3d 785 and related vested-rights authorities foreclose the proposition that conduct itself substitutes for the legally required entitlement.
VII. CHAPTER 11/SEBRSS PERMITS CANNOT BE USED TO BOOTSTRAP A PERMANENT TITLE 20 ENTITLEMENT OR MANUFACTURE THE CLASS 1
COMPARATOR
We are particularly concerned with the City's apparent post-surrender use of Chapter 11/SEBRSS or bundled special-event permits for Five Crowns operations while PA2025 remains pending.
The Newport Beach Municipal Code itself makes clear why those event permits cannot be treated as substitutes for the operative land-use entitlement.
Section 1 l .03.020(C)(3) expressly exempts from Chapter 11.03 "[l]ive entertainment at an established place of business, such as a restaurant or tavern," because such activity is regulated through Title 20 and Chapter 10.26. Five Crowns is unquestionably an established restaurant.
493
September 1, 2026
Page No. 8
Section 11. 03 .110 is equally important. It provides that permits required under Chapter 11 are in addition to any license or permit required under another chapter of the Code. Chapter 11 therefore does not create a mechanism by which an event permit silently amends, supersedes or enlarges UP 1822.
Moreover, Chapter 11 describes bundled event permits as authorizations for multiple events scheduled over a one-year period. Nothing in that temporary event-permitting framework purports to create a permanent Title 20 land-use right.
Accordingly, for every Chapter 11, SEBRSS, bundled-event, special-event, sound or similar permit issued or recognized for Five Crowns after December 1, 2025, the City should identify the precise statutory category under which the permit was issued, the area authorized, number of attendees, hours, activity and entertainment authorized, and the legal basis, if any, for believing that the permit could authorize activity beyond UP 1822.
For events below the 150-person thresholds appearing in portions of section 1 l.03.020(B), the City should identify the exact subsection relied upon and explain how its interpretation is reconciled with section 1 l.03.020(C)(3).
Most importantly, the City should state unequivocally whether it contends any event-specific Chapter 11 permit amended, superseded, suspended, waived or otherwise enlarged the permanent outdoor area or patron limits contained in UP 1822.
If the answer is no, post-surrender event activity cannot properly be portrayed as evidence that the permanent entitlement itself had already expanded.
VIII. THE CITY MAY NOT USE ENVIRONMENTAL MITIGATION AS A
SUBSTITUTE FOR THE SUNFLOWER THRESHOLD INQUIRY
We recognize the precise limits of Sunflower. The Supreme Court did not decide its second granted issue concerning the circumstances under which conditions relating to environmental effects may accompany a categorical exemption.
But the Court did decide something critical here: an agency cannot determine that a substantial change in use fits Class 1 merely because it predicts the resulting environmental risk will be negligible. As the Court explained, "[t]he class 1 exemption does not mention the risk of environmental harm at all, and we must not read into the regulation words it does not contain." (Sunflower, supra, 20 Cal.5th 22.) The Court further warned that interpreting Class 1 "as extending to minor alterations to existing facilities having no or only a negligible risk of environmental harm risks conflating CEQA's second and third steps by requiring the lead agency to analyze environmental effects prematurely-without the full benefit of public participation and other procedural safeguards that a comprehensive environmental review normally entails." (Ibid.) II
II
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September 1, 2026
Page No. 9
Thus, the City cannot answer the expansion question by stating that speakers will be directed away from residences, acoustical barriers will be installed, valet operations will be managed, landscaping will be enhanced, hours will be conditioned, or sound levels will be monitored.
Those measures may be relevant elsewhere in CEQA review or entitlement conditions.
They are not a substitute for first determining whether the change in the nature and degree of the use is itself negligible.
If that threshold is not met, Class 1 is unavailable and the City must proceed to the next appropriate stage of CEQA review, including an Initial Study where required, at which point the environmental consequences of noise, crowd activity, parking, traffic, lighting, loading, operating hours and related impacts must be properly evaluated.
IX. THE RESIDENTIAL SETTING AND EXISTING EVIDENCE ALSO REQUIRE
SERIOUS CONSIDERATION OF THE CATEGORICAL-EXEMPTION
EXCEPTIONS
Even if the City were able to establish that P A2025 falls within the initial scope of Class 1, that does not end CEQA analysis.
Guidelines section 15300.2(c) precludes reliance on a categorical exemption where there is a reasonable possibility that the activity will have a significant effect due to unusual circumstances. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.
We do not contend that residential proximity alone automatically establishes the exception. We do contend that the particular factual setting must be addressed rather than ignored: a recurring outdoor commercial/event operation located less than approximately 50 feet from neighboring residential property; amplified or live entertainment; repeated evening activity; increased outdoor occupancy; event crowds; lighting; parking and valet activity; and the extensive history of neighborhood complaints and documented impacts already supplied to the City.
Under Berkeley Hillside, the existence of a reasonable possibility of a significant effect due to these particular circumstances is a question the City must confront on the evidence; it cannot be answered by the exemption label itself. The record already before the City-documented complaints, the residential proximity, and the recurring evening/entertainment character of the proposed outdoor operation-squarely raises that possibility and requires reasoned analysis rather than reliance upon categorical exemptions and operational conditions alone.
The City's administrative record must therefore contain the actual evidence and analysis rather than a conclusory exemption label.
X. SPECIFIC ACTION REQUESTED BEFORE ANY PA2025 DECISION Before P A2025-0208 is scheduled for final discretionary action, circulated with a proposed CEQA dete1mination, or recommended for approval, we request that the City provide a 495
September 1, 2026
Page No. 10
written response identifying: the CEQA exemption, if any, the City presently contemplates; the precise "existing or former use" relied upon for any Class 1 analysis; whether that comparator is UP1822, PA2023-0202, alleged historical activity, post-surrender event-permit operations, or some combination; the evidence establishing the nature and degree of that comparator; and a component-by-component comparison of that use against PA2025.
The City should also explain the May 26, 2026 "No expansion" representation in light of Sunflower and the objective 348-square-foot/24-patron versus 1,569-square-foot/approximately 75-patron comparison.
We further request written confirmation that neither PA2023-0202 nor any Chapter 11/SEBRSS or other temporary/event-specific permit is being treated as having permanently amended or enlarged UP 1822 absent identification of a lawful Title 20 procedure accomplishing that result.
If the City concludes the proposed change in the nature or degree of use is more than negligible, it should expressly reject Class 1 and proceed with the CEQA process required by law.
We also request that City Manager Jurjis consider whether any continuing Chapter 11 events at Five Crowns warrant City Manager review under section l l .03.060(G), which expressly contemplates special review for events having potential for greater-than-usual noise, traffic or other impacts on nearby property owners and residents.
XI. SUPPLEMENTAL CALIFORNIA PUBLIC RECORDS ACT REQUEST
This portion of the letter constitutes a supplemental request under the California Public Records Act, Government Code section 7920.000 et seq., including section 7922.535. It supplements rather than withdraws, supersedes or narrows our prior CPRA requests. Please construe "records" to include email, text messages, Teams or similar electronic communications, memoranda, handwritten notes, attachments, drafts, redlines, comments, photographs, video, audio, databases, permit-system entries, audit trails, metadata, native spreadsheets, consultant files and other electronically stored information in the possession, custody or control of the City.
Please produce the following records:
REQUEST NO. 113: All nonprivileged records created, received, reviewed or circulated by the City from June 25, 2026 to the present referring or relating to Sunflower Alliance v. Department of Conservation, S287414, 20 Cal.5th 22, in connection with PA2025-0208, Five Crowns, CEQA Class 1, Guidelines section 15301, "existing use," "f01mer use," expansion, intensification, retention, historical use, ancillary use or accessory use.
REQUEST NO. 114: Every CEQA screening document, exemption memorandum, categorical-exemption analysis, draft or proposed Notice of Exemption, Initial Study draft, consultant memorandum, staff analysis, email or other record considering whether P A2025-0208 qualifies for a Class 1 exemption.
496
September 1, 2026
Page No. 11
REQUEST NO. 115: All records supporting, explaining, drafting, reviewing, approving, revising or commenting upon the May 2026 statement that "No expansion of the existing use is being proposed," including records identifying who originated that language and what "expansion" was understood to mean.
REQUEST NO. 116: All records identifying the "existing or former use" the City or applicant contends should be used for a Class 1 comparison, including all records addressing whether the comparator is UP1822, PA2023-0202, COVID-era temporary operations, historical events, actual operations, Chapter 11/SEBRSS events, post-surrender operations, or another condition.
REQUEST NO. 117: All records comparing UP1822, PA2023-0202 and PA2025-0208 with respect to outdoor square footage, outdoor patrons, seating, occupancy, private-event frequency, event size, event duration, operating hours, live entertainment, amplified sound, lighting, parking, valet, traffic, loading, vendors, staffing and other operational characteristics.
REQUEST NO. 118: All records supporting any contention that an increase from approximately 348 square feet/24 outdoor patrons to approximately 1,569 square feet/approximately 75 outdoor patrons constitutes no expansion or only negligible, minor, incidental, ancillary or accessory expansion of use.
REQUEST NO. 119: All records tending to contradict, qualify, limit or undermine any "No expansion," negligible-expansion, ancillary-use, accessory-use, existing-use or historical-use contention, including records reflecting increased area, occupancy, event frequency, event size, hours, entertainment, parking/valet demand, staffing, vendors, lighting, loading or other operational differences.
REQUEST NO. 120: All records relied upon to establish historical outdoor private events at Five Crowns before August 26, 2020, including photographs and their native files/metadata, contemporaneous event calendars, contracts, banquet event orders, reservations, seating plans, guest counts, permits, approvals and records sufficient to establish the date, area, attendance, hours and entertainment associated with each claimed historical event.
REQUEST NO. 121: Every City permit or permanent entitlement relied upon to establish that any claimed historical outdoor private-event or live-entertainment activity was lawfully authorized when conducted.
REQUEST NO. 122: All Chapter 11, SEBRSS, bundled-event, special-event, sound or similar permit applications and permits concerning Five Crowns from January 1, 2004 through the present, together with site plans, attendance figures, event descriptions, hours, conditions and records sufficient to identify the earliest such application or permit in City records.
REQUEST NO. 123: All records concerning whether any Chapter 11/SEBRSS or similar permit amended, superseded, suspended, waived, enlarged or otherwise affected UP 1822, including records concerning sections 1 l.03.020(C)(3) and 11.03.110.
REQUEST NO. 124: All records showing whether operations occurring pursuant to PA2023-0202, Chapter 11/SEBRSS permits, bundled permits, sound permits, temporary 497
September 1, 2026
Page No. 12
approvals or post-surrender activity have been or will be used as evidence of "existing," "former," "historical," "ancillary" or "accessory" use, as a CEQA environmental baseline, as an entitlement baseline, or as the Class 1 comparison use.
REQUEST NO. 125: All communications between the City and Five Crowns, Lawry's, Ryan Wilson, their attorneys, Robinson Hill Architecture, RK Engineering Group, Counts Unlimited or other applicant consultants concerning Sunflower, Class 1, no expansion, negligible expansion, historical use, existing use, former use, ancillary/accessory use, event frequency, occupancy, 60-person or 75-person limits, PA2023 smTender, Chapter 11/SEBRSS permits or the CEQA treatment of PA2025.
REQUEST NO. 126: All drafts and communications concerning any proposed outdoor/event occupancy condition of 60, 75 or another number, including who proposed each number, the factual or technical basis for it, the applicant's response, and the physical or operational impacts the proposed limitation was intended to address.
REQUEST NO. 127: All current or updated technical studies, reports, memoranda, calculations and native data concerning P A2025 noise, crowd noise, parking, traffic, valet operations, lighting, loading, event frequency, event attendance, event operations, and neighborhood impacts, including materials received from RK Engineering Group or other consultants that are not presently posted in the public P A2025 file.
REQUEST NO. 128: Records sufficient to show the number, frequency, attendance, duration and location of private events Five Crowns or the City relies upon to support any contention that private events or live ente1iainment are historically established, existing, former, ancillary or accessory uses.
REQUEST NO. 129: All records concerning Five Crowns' publicly represented production of approximately 150-200 weddings/events annually, including information supplied to the City establishing how many occurred outdoors, which outdoor areas were used, attendance, hours, entertainment, and the land-use or event permits under which they were conducted.
REQUEST NO. 130: All records concerning the City's December 11, 2025 incomplete determination and the applicant's responses concerning event frequency, event size, maximum occupants, music, regular versus event use, recent events, neighborhood compatibility, parking and sound attenuation.
REQUEST NO. 131: All records reflecting how, if at all, the City has evaluated the proposed increase in outdoor operating hours, nighttime outdoor use, event frequency and event intensity as part of the "nature and degree of use" inquiry required by Sunflower, including any analysis of whether that increase is negligible.
REQUEST NO. 132: Records sufficient to identify every City employee, officer, consultant or decisionmaker responsible for the City's current CEQA determination for P A2025-0208 and every person participating in defining the "existing or former use," "baseline," "No expansion," historical-use, ancillary-use or Class 1 positions.
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September 1, 2026
Page No. 13
For electronically maintained responsive material, please produce records in their native - or reasonably usable electronic form where necessary to preserve metadata, formulas, timestamps, attachments and document families. Emails should be produced with attachments maintained with the parent email. Native photographs, audio and video should retain available metadata. Spreadsheets should be produced with formulas intact.
If responsive materials have been deleted, overwritten, lost, purged or otherwise become unavailable, please identify the record or category, approximate date, custodian and known disposition. If responsive records are withheld in whole or part, please identify the statutory basis for withholding and produce all reasonably segregable nonexempt portions.
Government Code section 7922.535 requires the City to make its determination concerning disclosable records within the statutory period. Please coordinate this supplemental request with the City Clerk and with the City personnel handling our existing CPRA requests to avoid duplication while ensuring that the newly identified Sunflower-related material is searched and produced.
XII. ADMINISTRATIVE RECORD AND LITIGATION PRESERVATION
This correspondence should immediately be placed in the complete P A2025-0208 project file and retained for inclusion in any administrative record prepared under Public Resources Code section 21167.6.
The City and its departments, officers, employees and consultants are already on notice of pending litigation concerning Five Crowns and of disputes concerning PA2025, PA2023, UP1822, event permits, sound, parking, lighting, enforcement and CEQA. This letter renews and supplements the obligation to preserve potentially relevant evidence.
Preservation should include the complete P A2025 working file; correspondence folders; City permit databases; Chapter 11/SEBRSS files; emails; texts; Teams and similar communications; drafts and redlines; planner notes; consultant communications; photographs; recordings; metadata; audit trails; document-management histories; Quest materials; Code Enforcement files; Police records where relevant; and native technical data received from consultants.
No City employee, consultant or department should delete, purge, overwrite, alter, de-link, fail to download, or otherwise render unavailable material relating to these issues under an automatic retention or deletion schedule while the matters remain pending.
XIII. REQUEST FOR WRITTEN RESPONSE AND RESERVATION OF RIGHTS We request written confirmation that this letter has been added to the P A2025 administrative/project record and routed to each City employee, consultant and decisionmaker presently participating in the processing or environmental review of P A2025-0208. 499
September 1, 2026
We further request a written response identifying whether the City presently contemplates use of the Class 1 categorical exemption and, if so, the exact existing or former use against which it proposes to measure P A2025 under Sunflower.
The fundamental issue can no longer be avoided by terminology. UP1822 reflects approximately 348 square feet and 24 outdoor patrons. P A2025 presently seeks approximately 1,569 square feet and approximately 75 outdoor patrons, together with materially expanded outdoor event and entertainment characteristics. Calling that proposal "retention," "ancillary," "accessory," "existing," "historical," or "No expansion" does not answer the question the California Supreme Court has now required the City to answer.
The question under Sunflower is whether P A2025 causes only a negligible change in the nature or degree of the relevant existing or former use. The City must identify that use, measure the change, and support its conclusion with evidence.
Until that analysis is performed, reliance on Class 1 would be premature and legally vulnerable.
Nothing in this letter waives any claim, objection, administrative remedy, CPRA right, CEQA argument, land-use objection, nuisance claim, enforcement position, appellate issue, or other right or remedy of Kenneth J. Catanzarite or Kim E. Catanzarite. All are expressly reserved.
Very truly yours,
cc: Nicholas J. Schuchert, Esq. ([email protected]) Chloe Ann Lee, Esq.([email protected])
Ginetta L. Giovinco ([email protected])
500
KENNETH J. CATANZARITEATTORNEY AT LAW
Direct Dial:
(714) 678-2100
Via Email Only:
City of Newport Beach
Planning Commission
100 Civic Center Drive
Newport Beach CA, 92660
CATANZARITE LAW CORPORATION
Attorneys & Counselors at Law
2331 West Lincoln Avenue
Anaheim, California 92801
(714) 520-5544
Facsimile: (714) 520-0680
September 16, 2026
[email protected]
E-Mail Address:
[email protected]
Direct Fax:
(714) 399-0577
Re: Planning Commission Meeting September 17, 2026 - Agenda Item No. 4 - Five Crowns Restaurant/ PA2023-0202 / Proposed Resolution No.
PC2026-027 - Limited Objection and Conditional Non-Opposition; Request for Void Ab Initio / No-Baseline Clarification re Pending CUP/ PA2025-0208 Dear Chair Salene, Members of the Planning Commission, City Staff, and City Attorney's Office:
Kenneth J. Catanzarite and Kim E. Catanzarite submit this limited objection and conditional non-opposition to Agenda Item No. 4 concerning Five Crowns Restaurant, PA2023-0202, the surrendered Limited Term Permit, City Council Resolution No. 2025-18, and proposed Resolution No. PC2026-027.
Petitioners do not object to the Planning Commission confirming that PA2023-0202 is no longer in effect, has not been in effect since surrender, and cannot be invoked by Five Crowns, Lawry's, FVP II, the City, or any other person in connection with any future discretionary approval or entitlement.
Petitioners support that purpose.
Petitioners object, however, to any resolution, staff report, CEQA finding, or subsequent City position that leaves room for PA2023-0202, Resolution No. 2025-18, or operations conducted under the Temporary Permit to be used directly or indirectly as a CEQA baseline, parking baseline, traffic baseline, noise baseline, lighting baseline, operational baseline, vested-rights theory, lawful-existing-use determination, or evidence of lawful ongoing or prior operation in connection with the pending new CUP / Use Permit Amendment application, P A2025-0208, or any other past or future approval.
The pending CUP / P A2025-0208 proceeding is the central issue. The City cannot take the position in litigation that PA2023-0202 is moot because it was surrendered, while simultaneously allowing the same surrendered temporary patio operation to become the baseline for the pending CUP / PA2025-0208.
501
City of Newport Beach
Planning Commission
September 16, 2026
Page No. 2
I. Petitioners Conditionally Support the Stated Purpose of Resolution No. PC2026-027 The Planning Commission staff report states that Ryan Wilson of Lawry's Restaurants Inc. surrendered P A2023-0202, and that the purpose of the present action is to confirm that P A2023-0202 has not been in force and effect since surrender and cannot be invoked in connection with any further discretionary approvals or entitlements requested by the Applicant.
Petitioners support that stated objective.
If P A2023-0202 was surrendered, then it no longer provides legal authority. If Resolution No. 2025-18 served only as the vehicle for approving P A2023-0202, then Resolution No. 2025-18 likewise has no independent legal utility after surrender of P A2023-0202.
Petitioners further agree that P A2023-0202 and Resolution No. 2025-18 should not be relied upon or invoked in connection with any future discretionary approval, including the pending CUP / P A2025-0208, any use permit amendment, coastal development permit, parking waiver, traffic analysis, CEQA determination, sound/noise analysis, lighting analysis, operational finding, or entitlement concerning Five Crowns.
II. The Resolution Should State PA2023-0202 and Resolution No. 2025-18 Are Void Ab Initio, or at Minimum Void and Without Legal Effect for Any Future Baseline or Entitlement Purpose
Petitioners' writ challenge contends that P A2023-0202 should never have been issued as a limited-term or temporary permit because the expanded patio, live entertainment, amplified sound, private events, parking impacts, noise impacts, lighting impacts, and related operations required a proper use permit amendment, CEQA review, parking analysis, noise analysis, and enforceable mitigation. Petitioners therefore do not agree that P A2023-0202 was valid until sun-ender. Petitioners contend it was invalid from inception.
For that reason, the resolution should not merely say that PA2023-0202 is no longer in effect as of the surrender date. If the City intends to use this Planning Commission action to resolve or moot the pending writ issues, the City must go further and make clear that P A2023-0202 and Resolution No. 2025-18 are void ab initio, or at minimum void and without legal force or effect for any future entitlement, baseline, CEQA, parking, traffic, noise, lighting, operational, existing-use, vested-rights, or evidentiary purpose.
The practical clarification is simple: for all future purposes, including P A2025-0208, P A2023-0202 must be treated as though it never conferred any lawful entitlement, vested right, baseline, approval, lawful existing use, or evidence of lawful ongoing operation.
II
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City of Newport Beach
Planning Commission
September 16, 2026
Page No. 3
III. The Pending CUP / P A2025-0208 Is the Baseline Problem The City and Five Crowns are presently pursuing or processing the pending CUP/ Use Permit Amendment application, P A2025-0208. That application seeks to address, retain, formalize, or approve outdoor patio/courtyard operations, private events, live entertainment, parking, and related operational matters at Five Crowns.
That pending CUP proceeding is precisely why this resolution must be clear.
Petitioners are concerned that the City and Five Crowns will contend that P A2023-0202 is moot for purposes of Petitioners' writ challenge, but then use the same Temporary Permit operation as the "existing condition" or factual baseline for the pending CUP / P A2025-0208.
That cannot be permitted.
If PA2023-0202 is surrendered, void, no longer in force, and incapable of being invoked for future approvals, then it cannot be revived indirectly as the CEQA baseline, parking baseline, traffic baseline, noise baseline, lighting baseline, operational baseline, or evidence of lawful existing use for PA2025-0208.
The lawful baseline for P A2025-0208 is UP 1822 and any other presently valid entitlement, not PA2023-0202, not Resolution No. 2025-18, not the prior Emergency Temporary Use Permit, and not post-surrender SEBRSS/bundled-event permits that Petitioners have separately challenged.
UP 1822 is the operative use permit. Petitioners contend UP 1822 limits the outdoor patio to 348 square feet and 24 outdoor patrons and does not authorize the expanded patio, full courtyard, live entertainment, amplified sound, private events, recurring weddings/receptions, lighting impacts, parking/valet impacts, or event-venue operations now being pursued through P A2025-0208 and other City mechanisms.
IV. Petitioners Object to Any Baseline Loophole
The City and Five Crowns appear to be attempting to preserve room to argue later that, although PA2023-0202 is no longer legally effective, the patio operations conducted under P A2023-0202 may still be used as "existing conditions" or as the factual baseline for P A2025-0208.
Petitioners object to that position.
The City cannot moot the Temporary Permit in litigation and then revive the surrendered Temporary Permit condition as the baseline for the pending CUP. 503
City of Newport Beach
Planning Commission
September 16, 2026
Page No. 4
Nor may the City use the surrendered Temporary Permit operation to avoid CEQA, avoid an Initial Study, avoid parking analysis from the lawful UP 1822 baseline, avoid noise analysis, avoid lighting analysis, avoid cumulative-impact review, or avoid evaluating the operational impacts of private events and live entertainment.
If the Temporary Permit is dead, it is dead for baseline purposes too. If it was unlawful from inception, it cannot become the foundation for permanent approval.
V. Requested Revisions to Resolution No. PC2026-027
Petitioners request that Resolution No. PC2026-027 be revised to add the following clarifying language:
II
PA2023-0202 and Resolution No. 2025-18 are void ab initio, or at minimum void and without legal force or effect for any future entitlement, baseline, CEQA, parking, traffic, noise, lighting, operational, existing-use, vested-rights, or evidentiary purpose. PA2023-0202 and Resolution No. 2025-18 shall be treated as having conferred no lawful continuing entitlement, no vested right, no lawful-existing-use determination, and no baseline for the pending CUP/ Use Permit Amendment application P A2025-0208 or any future discretionary approval concerning Five Crowns.
Petitioners further request the following language:
PA2023-0202, Resolution No. 2025-18, and any operations conducted under them shall not be relied upon, invoked, cited, used, or considered, directly or indirectly, as legal authority, a vested right, an entitlement, a lawful-existing-use determination, a CEQA baseline, a parking baseline, a traffic baseline, a noise baseline, a lighting baseline, an operational baseline, or evidence of lawful ongoing operation in connection with P A2025-0208 or any future discretionary approval, entitlement, permit, waiver, coastal development permit, use permit amendment, CEQA determination, parking determination, traffic analysis, noise analysis, lighting analysis, or land-use decision concerning Five Crowns.
Petitioners further request the following language:
Nothing in this Resolution determines, approves, validates, recognizes, ratifies, or authorizes any outdoor patio area, outdoor seating, outdoor patron count, private event use, live entertainment, amplified sound, lighting, valet/loading activity, parking condition, or event operation beyond that authorized by UP 1822 or any other presently valid entitlement.
504
City of Newport Beach
Planning Commission
September 16, 2026
Page No. 5
Petitioners fmiher request the following language:
Nothing in this Resolution determines the merits of PA2025-0208, the pending CUP/ Use Permit Amendment application, any CEQA determination for PA2025-0208, any parking waiver, any use permit amendment, any coastal development permit, any noise or lighting violation, any nuisance issue, any SEBRSS/special-event/bundled permit issue, or any claim, defense, or remedy in pending litigation.
These revisions are necessary to prevent P A2023-0202 and Resolution No. 2025-18 from being used indirectly in P A2025-0208 for the same purpose the proposed resolution says they cannot serve directly.
VI. The Staff Report's CEQA Discussion Should Be Corrected Petitioners also object to staff report language that appears to rely on a Class 1 "Existing Facilities" rationale by describing the prior project as involving the temporary use of an approximately 1,350-square-foot outdoor dining area with an 850-square-foot tent canopy and exterior live entertainment at an existing restaurant.
That language is inappropriate for the action now before the Planning Commission.
The action now before the Planning Commission should be limited to confoming surrender, termination, and non-use of PA2023-0202 and Resolution No. 2025-18. The Planning Commission should not make any finding that validates, ratifies, approves, or re-approves the temporary 1,350-square-foot patio, live ente1iainment, tent canopy, temporary outdoor dining area, or operations conducted under P A2023-0202.
Most importantly, the Planning Commission should not create language that Five Crowns or the City may later cite in the pending CUP / P A2025-0208 proceeding as evidence that the 1,350-square-foot temporary patio with live entertainment is an "existing facility," "existing condition," "former use," "existing operation," or lawful baseline.
If the City's position is that this action merely confirms that P A2023-0202 is no longer in force and cannot be invoked, then the CEQA analysis should be limited to that termination/confirmation action. It should not contain language suggesting that the temporary patio and live-entertainment use qualifies as an existing facility or lawful baseline for PA2025-0208.
Petitioners request that the staff report and resolution be corrected to clarify that:
1. the Planning Commission is not approving, reapproving, validating, or ratifying the temporary patio or live-entertainment use;
2. the Planning Commission is not determining that the temporary patio qualifies as an existing facility for purposes of the pending CUP / P A2025-0208; 505
City of Newport Beach
Planning Commission
September 16, 2026
Page No. 6
3. the Planning Commission is not determining any CEQA baseline for P A2025-0208;
4. the Planning Commission is not determining any parking, traffic, noise, lighting, or operational baseline for PA2025-0208;
5. the Planning Commission is not determining that the temporary patio operation may be used as an existing-conditions baseline in any future CEQA, parking, traffic, noise, lighting, or land-use analysis.
VII. The Effective Date of Surrender Must Be Stated Accurately and Uniformly Petitioners also request that the City correct and clarify the effective date of surrender.
Counsel correspondence and City materials have referenced different surrender dates. The proposed resolution and staff report appear to use December 2, 2025. Counsel correspondence has referenced December 10, 2025.
The final resolution should state the accurate effective date and should use that date consistently. Petitioners' position is that P A2023-0202 has not been legally operative at any time after the effective surrender date stated in the final resolution and, for purposes of future approvals and baselines, should be treated as void ab initio or otherwise without legal effect.
VIII. The Resolution Should Not Be Used to Impair Pending Litigation or Petitioners' Rights
There are pending related Superior Court proceedings concerning Five Crowns, the City, the Temporary Permit, UP 1822, nuisance, enforcement, and related issues.
Petitioners reserve all rights, claims, remedies, objections, writ claims, nuisance claims, administrative claims, CEQA objections, land-use objections, and evidentiary positions.
Petitioners do not agree that adoption of Resolution No. PC2026-027, without the clarifying revisions requested above, moots all issues in the pending litigation.
If the City wants to use this Planning Commission action as a basis for a stipulation or mootness position in Superior Court, the resolution must be clear and complete. It must foreclose any later use of PA2023-0202, Resolution No. 2025-18, or operations conducted under the Temporary Permit as a baseline or evidence of lawful existing use in the pending CUP I P A2025-0208.
Absent the requested clarifying language, Petitioners will object to any contention that the resolution moots Petitioners' writ claims or eliminates the need for judicial relief.
I I
II
II
506
City of Newport Beach
Planning Commission
September 16, 2026
Page No. 7
IX. PA2025-0208 Must Be Evaluated Independently Under the Correct Baseline The proposed resolution cannot be used to sanitize P A2025-0208.
P A2025-0208 must be evaluated independently under the governing law, including UP 1822, Title 20, Title 21, CEQA, parking requirements, traffic requirements, Chapter 10.26, Chapter 10.28, lighting requirements, nuisance law, and all applicable standards.
For PA2025-0208, the City may not use PA2023-0202, Resolution No. 2025-18, or the temporary patio operations conducted under them as the lawful existing baseline. If P A2023-0202 is void, surrendered, and of no further force and effect, then the City must evaluate P A2025-0208 against UP 1822 and presently valid legal entitlements, not against the surrendered temporary patio condition.
This is not a technical point. It affects every future finding for P A2025-0208, including:
• CEQA baseline;
• Class 1 exemption analysis;
• common-sense exemption analysis;
• Initial Study requirement;
• parking waiver analysis;
• traffic and valet analysis;
• noise analysis;
• lighting analysis;
• live entertainment findings;
• private event impacts;
• nuisance findings;
• compatibility with surrounding residential uses;
• consistency with UP 1822.
X. Petitioners Request Inclusion in the Record
Petitioners request that this limited objection be:
1. distributed to all Planning Commissioners before the September 17, 2026 hearing;
2. included in the administrative record for Agenda Item No. 4;
3. included in the P A2023-0202 file;
4. included in the P A2025-0208 I pending CUP file;
5. included in any City Attorney file or litigation file concerning Catanzarite v. City of Newport Beach and related Five Crowns matters;
6. included in any future administrative record concerning Five Crowns, UP 1822, PA2025-0208, the pending CUP I Use Permit Amendment application, SEBRSS permits, bundled-event permits, special-event permits, parking, CEQA, noise, lighting, or nuisance issues.
II
II
507
City of Newport Beach
Planning Commission
September 16, 2026
XI. Conditional Non-Opposition and Reservation of Rights Petitioners conditionally do not oppose Resolution No. PC2026-027 if it is revised to make clear that PA2023-0202, Resolution No. 2025-18, and operations conducted under them are void ab initio, or at minimum void and without legal force or effect for any future baseline or entitlement purpose, and cannot be used directly or indirectly as any future baseline or evidence of lawful existing use, including in the pending CUP / PA2025-0208.
If the Planning Commission adopts the resolution without the requested clarifying language, Petitioners object and reserve all rights to argue that the resolution is incomplete, ambiguous, and insufficient to moot the pending writ issues or prevent use of the surrendered Temporary Pe1mit as an improper baseline for PA2025-0208.
Petitioners also reserve all rights to appeal, seek call for review, supplement the Superior Court record, oppose any mootness stipulation that lacks adequate protections, and pursue all remedies necessary to prevent the surrendered Temporary Permit from being used to support P A2025-0208 or any future approval.
Very truly yours,
Kenneth J. Catanzarite
508
KENNETH J. CATANZARITEATTORNEY AT LAW
Direct Dial:
(714) 678-2100
CATANZARITE LAW CORPORATION
Attorneys & Counselors at Law
2331 West Lincoln Avenue
Anaheim, California 92801
(714) 520-5544
Facsimile: (714) 520-0680
E-Mail Address:
[email protected]
Direct Fax:
(714) 399-0577
September 17, 2026
Via Email Only:
City of Newport Beach
Planning Commission
100 Civic Center Drive
Newport Beach CA, 92660
[email protected]
Re: PREPARED STATEMENT OF KENNETH J. CATANZARITE
NEWPORT BEACH PLANNING COMMISSION - SEPTEMBER 17, 2026 - AGENDA ITEM NO. 4 - FIVE CROWNS - PA2023-0202 / RESOLUTION NO.
PC2026-027; RELATED MATTER: PA2025-0208
FOR INCLUSION IN THE PUBLIC RECORD FOR AGENDA ITEM NO. 4 AND IN THE PA2025-0208 PROJECT FILE AND RECORD PRESENTED TO THE DECISION MAKERS
Submitted by: Kenneth J. and Kim E. Catanzarite
Properties: 352 and 354 Hazel Drive, Corona del Mar, California Good evening. Kenneth Catanzarite for Kenneth and Kim Catanzarite. We own 352 and 354 Hazel Drive, directly across from the Five Crowns courtyard.
I incorporate our September 16 written Limited Objection, this statement, Attachment A, and all of our prior submissions and evidence into the record.
I want to make five points.
First - the physical scale of the use, UP 1822, and the surrendered Temporary Permit.
The courtyard operation at issue is not a minor extension of an existing patio.
PA2023-0202 involved approximately 1,350 square feet. The pending permanent application, PA2025-0208, now uses approximately 1,569 square feet of outdoor area.
The controlling permanent entitlement, UP 1822, permits only approximately 348 square feet, four outdoor tables and 24 outdoor patrons. The current proposal is therefore roughly four-and-one-half times the permanently entitled outdoor area.
Five Crowns surrendered PA2023-0202. We support confirming tonight that it is no longer in force and Resolution 2025-18 has no independent utility.
Catanzarite - Five Crowns - Planning Commission 9/17/26 Agenda Item 4
509
City of Newport Beach
Planning Commission
September 17, 2026
Page No. 2
But the City cannot maintain in Superior Court that our challenge to P A2023 is moot because the permit was surrendered, while treating those same temporary operations as a continuing legal entitlement or lawful existing use for P A2025.
Historical operations may be evidence of actual impacts, including nuisance impacts.
They are not a source of permanent entitlement. If the City proposes to use those temporary operations as a CEQA physical baseline, it must expressly identify and legally justify doing so rather than silently treating a surrendered temporary operation as the permanent pre-project condition.
Second - the noise and light violations preceded surrender and continued after surrender.
We installed professional Class 1 continuous sound monitoring in July 2025 and have operated it continuously since July 18, 2025.
During the Temporary Permit period we documented extensive exterior-noise exceedances, as well as light violations and repeatedly notified the City. After surrender in December, Five Crowns nevertheless continued its expanded courtyard and event operations while P A2025 remained pending.
Our Class 1 monitoring and reporting continued through December, January, February and March and thereafter. We repeatedly provided the City the measurements, videos, photographs and complaints. The expanded operation continued.
Third - the later SEBRSS and bundled Event Permit practice does not authorize these courtyard operations.
UP 1822 remains controlling: 348 square feet and 24 patrons.
A Chapter 11 Event Permit cannot convert that entitlement into use of the entire 1,350- to 1,569-square-foot courtyard. It cannot amend UP 1822, increase permanent outdoor capacity, or convert Five Crowns into a recurring outdoor event venue. Section 11.03.110 itself says Chapter 11 permits are in addition to permits required by other chapters-not substitutes for them.
There is a second independent preclusion. Section 1 l.03.020(C)(3) expressly excludes live entertainment at an established restaurant or tavern from Chapter 11.03 and directs that activity to Title 20 and Chapter 10.26. Five Crowns is an established restaurant.
So the City cannot use SEBRSS as an end-run-first to authorize courtyard use beyond UP 1822, and then to characterize the restaurant's amplified entertainment as a Chapter 11 event to escape Chapter 10.32.
Catanzarite - Five Crowns - Planning Commission 9/17/26 Agenda Item 4
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City of Newport Beach
Planning Commission
September 17, 2026
Page No. 3
These events use DJs, speakers, microphones and amplified entertainment. Chapter
10.32 prohibits use of sound-amplifying equipment after 8:00 p.m., as well as sound audible more than 100 feet or unreasonably loud, raucous, disturbing or a nuisance.
UP 1822 does not authorize amplified sound. No other presently operative Title 20 entitlement has been identified that does. The Chapter 11 special-event exception therefore cannot be used to avoid the 8:00 p.m. restriction for restaurant entertainment that Chapter 11 itself excludes.
Fourth - the City and Five Crowns already knew substantial mitigation was necessary.
Five Crowns' own consultant, RK Engineering, issued its Updated Noise Analysis on August 5, 2024.
Based on that analysis, the Planning Commission's approval required a sound attenuation wall, a ten-foot Hazel Drive gate, acoustical paneling, dense shrubbery, speaker-location controls, bass restrictions, DJ filters and limiters, and follow-up monitoring of private events.
Those measures were intended to achieve compliance with the City's noise regulations during expanded outdoor dining and private events with exterior live entertainment. Substantially all of those mitigating measures have not been installed.
Yet recurring events continued while our Class 1 monitoring documented the resulting sound impacts, together with lighting, parking and valet impacts at our homes.
Fifth - the City has been given an extensive evidentiary record.
Beginning December 24, 2025, we made repeated formal submissions on March 23, March 30, April 10, April 29, May 26, June 1, June 17, September 1 and thereafter.
The identified Dropbox Bates ranges alone total at least 8,376, apart from continuous electronic sound data, videos, audio recordings, photographs, police-call materials and later evidence.
Our June 17 submission expressly demanded inclusion of those materials in P A2025-0208 and objected to use of event, sound, special-event or bundled-event permits as substitutes for the CUP or as evidence of compatibility, historical use or lawful operations.
Yet the P A2025 file made available to us still does not reflect these numerous submissions, and the City has never confirmed their inclusion.
So tonight's record should be unmistakable: this is not merely about a surrendered Temporary Permit. It concerns UP 1822's controlling 348-square-foot limitation; continuing post-surrender operations; serial SEBRSS Event Permits; amplified sound after Catanzarite - Five Crowns - Planning Commission 9/17/26 Agenda Item 4
511
City of Newport Beach
Planning Commission
September 17, 2026
Page No. 4
8:00 p.m.; continuing documented impacts upon our homes; the Planning Commission's prior technical finding that substantial mitigation was required; and the completeness of the record that will ultimately be presented on P A2025-0208.
We reserve all rights.
Thank you.
Respectfully submitted,
enne . Catanzarite
In • aually and on behalf of Kenneth J. and Kim E. Catanzarite Catanzarite - Five Crowns - Planning Commission 9/17/26 Agenda Item 4
512
ATTACHMENT A
KENNETH J. AND KIME. CATANZARITE
FIVE CROWNS - PA2025-0208 I UP 1822 I PA2023-0202
PRIOR SUBMISSIONS, EVIDENTIARY PRODUCTIONS, AND ISSUES PRESERVED This Attachment accompanies and is incorporated into Kenneth J. Catanzarite's September 17, 2026 statement to the Newport Beach Planning Commission regarding Agenda Item No. 4.
The Catanzarites incorporate all prior submissions, objections, monitoring evidence, videos, photographs, audio recordings, Dropbox productions, Quest submissions, police-call materials, enforcement requests, CPRA materials and correspondence concerning Five Crowns.
A. UP 1822 - Controlling Permanent Outdoor Entitlement
UP 1822 authorizes approximately:
• 348 square feet of outdoor patio;
• four tables;
• six persons per table; and
• 24 outdoor patrons total.
UP 1822 did not authorize full-courtyard use, recurring event use, increased outdoor occupancy, amplified sound or expanded evening entertainment operations. The Catanzarites' March 23 formal objection expressly identified those limitations.
By comparison, PA2023-0202 involved approximately 1,350 square feet of outdoor operation and the revised P A2025-0208 materials use approximately 1,569 square feet of outdoor area. The latter is approximately 1,221 square feet greater than UP 1822 and about 4.5 times its outdoor area.
The Catanzarites preserve their objection that no temporary, Chapter 11, SEBRSS, bundled-event, sound-amplification or other event-specific permit may enlarge the permanent land-use rights granted by UP 1822.
B. Principal Prior Submissions and Productions
December 24, 2025 - Formal post-surrender demand addressing enforcement, UP 1822, P A2025-0208 and continued expanded operations.
March 23, 2026 - Monitoring Evidence Submission - Class 1 sound-monitoring evidence, videos, photographs and supporting materials submitted for inclusion in PA2025-0208.
March 23, 2026 - Formal CUP Objections - UP 1822 limitations, PA2023 history, sound violations, CEQA and proposed expanded use.
March 30, 2026 - Supplemental record submission; identified Dropbox material at PLNT PODs 006979-007167.
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April 10, 2026 - Supplemental objection addressing nonacknowledgment of prior materials and continued operations; PLNT PODs 007169-007234. The letter expressly stated that the City had not acknowledged receipt or confirmed inclusion of the materials.
April 29, 2026 - Supplemental evidence concerning sound, lighting, traffic, loading and continuing impacts; PLNT PODs 007235-007355.
May 26, 2026 - Further augmentation concerning continuing sound, lighting, parking, valet and event impacts; PLNT PODs 007356-007814.
June 1, 2026 - Further monitoring, enforcement and police-response evidence.
June 16, 2026 - CPRA concerning Event Permits, sound permits, UP 1822, Chapter 10.32 and the City's asserted legal authority.
June 17, 2026 - Supplemental CUP Objection, Evidence Transmittal, Record Lodging and Request for Confirmation of Record Inclusion; PLNT PODs 007955-008142. It expressly incorporated all earlier submissions and demanded placement of the evidence into PA2025-0208 and all related City files.
June 19, 2026 - Fmiher formal notice concerning SEBRSS/bundled permits, including requests for the legal authority by which such permits could authorize use beyond the 348-square-foot UP 1822 patio, recurring weddings and receptions, amplified sound, lighting, parking, loading or valet impacts.
September 1, 2026 - Supplemental formal objection concerning P A2025-0208, Chapter 11/SEBRSS, Class 1 CEQA treatment and use of temporary or post-surrender operations as an "existing or former use."
September 16, 2026 - Limited Objection and Conditional Non-Opposition concerning proposed Resolution No. PC2026-027.
The expressly identified Bates ranges above total at least 1,023 documentary pages, apart from continuous electronic monitoring, audio, video, photographs, Quest materials and other evidence.
C. Record Request and Reservation
The Catanzarites request that:
1. the September 17 prepared statement, this Attachment, and the September 16 submission be included in the record for Agenda Item No. 4;
2. all prior referenced submissions and supporting evidence be placed in the P A2025-0208 planning file and in the materials ultimately presented to its decisionmakers;
3. no P A2023 temporary operation or post-surrender Event Permit be treated as creating a permanent entitlement beyond UP 1822;
4. any CEQA baseline used for P A2025-0208 be expressly identified and legally justified;
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5. the City not treat tonight's termination proceeding as establishing or prejudging any finding concerning PA2025-0208, including "existing use," "former use," "no expansion," noise compliance, parking compliance or event entitlement; and
6. all rights concerning P A2023-0202, P A2025-0208, the serial Event Permits, sound amplification, enforcement, nuisance and pending judicial proceedings remain expressly reserved.
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ATTACHMENT B
KENNETH J. AND KIME. CATANZARITE
FIVE CROWNS - P A2025-0208 I UP 1822 / P A2023-0202
SEPTEMBER 16, 2026 LIMITED OBJECTION AND CONDITIONAL
NON-OPPOSITION
Catanzarite - Five Crowns - Planning Commission 9/17/26 Agenda Item 4