ATTACHMENT N
LENNAR RESPONSE TO FISH HOUSE VERA CRUZ
COMMENTS AND CONCERNS
Sheppard, Mullin, Richter & Hampton LLP
501 West Broadway, 18th Floor
San Diego, California 92101-3598
619.338.6500 main
619.234.3815 fax
www.sheppardmullin.com
619.338.6559 direct
[email protected]
November 27, 2023
VIA E-MAIL
Sean del Solar
Senior Planner
City of San Marcos
E-Mail: [email protected]
Re: RESPONDING TO FISH HOUSE VERA CRUZ COMMENTS AND CONCERNS WITH
RESPECT TO THE RESTAURANT ROW PROJECT, MITIGATED NEGATIVE DECLARATION (ND) 23-011, SPECIFIC PLAN (SP) 22-0004, GENERAL PLAN AMENDMENT (GPA) 22-0002, REZONE (R) 22-0002, TENTATIVE SUBDIVISION MAP (TSM) 22-0003, SITE DEVELOPMENT PLANS (SDP) 22-0006 (PRIVATE DEVELOPMENT), AND SDP 23-0004 (PUBLIC PARK)
Dear Mr. del Solar:
This firm represents Lennar Homes of California, LLC (“Lennar”), the applicant for the Restaurant Row project proposing redevelopment of Old California Restaurant Row with a mixed use project containing 202 residential units, 10,400 gross square feet of commercial uses and a 1.1-acre park (“Project”). Fish House Vera Cruz (“ FHVC”), the owner and operator of a restaurant locat ed adjacent to the Project site, opposes the Project, alleging that there is inadequate parking to serve the Project, that the Project will have significant transportation (VMT) and noise impacts, and that the Project is inconsistent with private shared parking agreements affecting the Project site and the FHVC Property . FHVC’s claims are unfounded and belied by the evidence in the administrative record for the Project which demonstrates that (i) there is sufficient parking to serve the Project, (ii) the Project will reduce vehicle miles traveled and therefore have a less than significant impact on the environment, (iii) Project generated noise, including from the pickleball courts, will not exceed any City noise standards, and (iv) the Project will honor and respect all of FHVC’s easement rights under the shared parking agreements binding upon the owners of the Project site and the FHVC property. It should also be noted that par king is not considered an environmental impact under CEQA; it is a social impact, and not an impact at all for the Project since there will be adequate onsite parking to support the Project. Unfortunately, FHVC is not interested in the evidence supporting approval of the Project. FHVC indicated that it will only be appeased if Lennar purchases FHVC’s property or if the public park is eliminated from the Project.
After thoughtful consideration, Lennar has determined that neither option is viable.
Lennar has reviewed the various criticisms and concerns that FHVC has levied against the Project and responds to them as set forth below.
Sean del Solar
November 27, 2023
1. Parking. FHVC believes the Project is being designed with inadequate parking, however, Lennar has designed the Project such that it is self-sufficient from a parking perspective.
It also upholds its obligations under applicable shared parking agreements. a. O verview . The Project is reducing traffic and parking demands as compared to the existing condition. The project will remove over 60,000 SF of commercial space and replace it with 202 residential units, 10,400 gross SF of retail and a 1.1- acre park. These uses will generate substantially less traffic than a busy commercial retail center so FHVC’s transportation related concerns are generally misplaced and unfounded.
b. O nsite Parking is Adequate. The Project will have 518 parking spaces. All of the Project resident s have garage or dedicated surface parking. Non-residential, public park and residential guests share 117 open parking spaces , which is compliant with the Specific Plan parking requirements. FHVC can use these open parking spaces pursuant to shared parking agreements. Considering the relatively modest size of the commercial and park uses, and the complementary off peak hours for the component uses within the Project, this is more than adequate. For example, the park will not have lights and therefore cannot be expected to require much parking during the evening dining hours.
It should be noted that since the Planning Commission hearing, Lennar has modified the Project design in a manner that adds 17 new parking spaces adjacent to the park and there is the potential to add 13 more parking spaces along San Marcos Blvd. In addition, Lennar has agreed to perform improvements on the Cocina del Charro site that will yield an additional 15 parking spaces on its premises.
c. Offsite Parking is Available. Pursuant to shared parking agreements, the Project also has rights to use (i) 1,029 parking spaces on the neighboring Wells Fargo, 338 Via Vera Cruz office and theater sites,1 and (ii) 54 parking spaces on the FHVC site. The Project is not relying on any of these shared parking rights, however, as it can satisfy all of its parking demands onsite.
d. FHVC Can Self -Park Comfortably. Zoning requires FHVC to have 77 parking spaces,2 which FHVC meets as it has 82 parking spaces in its parking lot. The applicant’s parking consultant observed parking demands for FHVC and prepared a parking study showing that FHVC ’s peak parking demand i s for 59 parking spaces on Friday evenings at 6:00 pm. (Old California Restaurant Row Restaurant Parking Analysis dated October 10, 2023 (“Parking Study”), Attachment 1, which
1 Buffalo Wild Wings (“BWW”) and Cocina del Charro (“CDC”) also have rights to use these parking spaces.
2 FHVC is subject to MU-1 zoning which requires 8.5 spaces per 1,000 square feet. FHVC’s building is 9,100 square feet and requires only 77 parking spaces to comply with San Marcos Municipal Code (SMMC) requirements (9,100 ÷ 1,000 x 8.5) (SMMC, Table 20.340-2).
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November 27, 2023
is attached as Exhibit A to the Specific Plan (Appendix M to the MND.) Therefore, FHVC comfortably satisfies its own parking demand without relying on shared parking. FHVC’s insistence that it requires 36 designated parking sites on the Project site to satisfy its parking demand is perplexing, but the Project will nevertheless respect FHVC’s nonexclusive right to utilize 36 parking spaces on the Project site.
e. FHVC Impeded Creation of Additional Parking Spaces Adjacent to the Park .
FHVC has thus far refused to provide the cooperation needed to construct modest adjustments to its right of way easement that could yield an additional parking space next to the park. This would alleviate the potential parking pressure that FHVC complains about, so its refusal to cooperate is frustrating and indicates that it is not being honest about its motivations in opposing the project.
2. FH
VC Parking Agreements. The Project is subject to two parking easements with FHVC.
The agreements affect the “ Eubanks Parcel,” which is the Project site, BWW and CDC, on the one hand, and the FHVC parcel, on the other hand. The 1989 Easement 3 grants the Eubanks Parcel the nonexclusive right to use 54 parking spaces on the FHVC property and the 1990 Easement
4 grants FHVC the nonexclusive right to use 36 designated5 parking spaces on the Eubanks Parcel. These easements were originally established to ensure each parcel could satisfy City parking requirements. The City has since amended the Municipal Code such that shared parking is no longer needed to satisfy City parking requirements thus the easements no longer serve their intended purpose.
Neither of these agreements restricts the manner in which an owner operates parking on its own property and for example, does not preclude a property owner from allowing the general public or employees to use parking spaces on the property it owns. The agreements impose these restrictions on the “easement grantee’s” use of its neighbor’s property only, meaning the party that uses parking on its neighbor’s property cannot permit the general public to use parking within the easement it has over the neighbor’s property. a. Key Terms of 1989 Easement. The 1989 Easement grants the Eubanks Parcel an easement over the FHVC parcel as follows:
3 Recorded in the Official Records of San Diego County as Document No. 89-378260, a copy of which is attached to the Parking Study as Attachment 2. 4 Recorded in the Official Records of San Diego County as Document No. 90-050972, a copy of which is attached to the Parking Study as Attachment 2. 5 The 1990 Easement was recorded without the exhibit designating the location of 36 parking spaces and the applicant has been unable to locate an exhibit. To Lennar’s knowledge, FHVC has not historically claimed a right to any “designated” parking spaces and the Project will allow FHVC to use any of the 117 parking spaces with the Project. Importantly the “designated” parking spaces are not exclusive parking spaces; they are to be shared on a non-exclusive basis in common with owners/users of the Eubanks parcel.
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November 27, 2023
“[Eubanks] on behalf of itself, its heirs, successor and assigns [] retain[s] for the use and benefit of the [Eubanks Parcel] . . . , an appurtenant, nonexclusive parking easement with a minimum of 54 vehicular parking spaces, burdening and running with the [FHVC Property]. The right to use shall be in common with the right of use by the owners and occupants of [the FHVC Property]” and it is expressly understood that this easement is not to be deemed a gift of dedication of any portion of [the FHVC Parcel] to the general public or for the use by the general public or for any public purpose whatsoever.”
i. F HVC Position : FHVC states the easement terms only permit commercial patrons to use parking on the FHVC property and that the Project would violate the easement by allowing residential and park users to utilize this parking.
ii. Lennar Response:
• As a practical matter, this is a nonissue because the Project does not intend to direct residential or park users to park on FHVC property. The Project will provide sufficient onsite parking for its residential and park users. • Nothing in 1989 easement states its use is limited to commercial patrons.
To the contrary, the easement is for the benefit of Eubanks “ and its heirs, successors and assigns. ” The future owners of the residential and park parcels (i.e., the City), are successors and assigns and therefore will be benefitted by the easement authorizing them to use 54 parking spaces on the FHVC property. Again, this is a non- issue because Lennar does not intend to utilize these easement rights to satisfy the Project’s parking requirements.
• The language stating the easement “is not to be deemed a gift of dedication of any portion of [the FHVC Parcel] to the general public or for the use by the general public or for any public purpose whatsoever” does not preclude the City from allowing park patrons to use the FHVC parking. When the City acquires the park, it will inure to the benefits of the easement. The easement was entered into between two property owners that intended the parking easement to benefit the operations they conduct on their respective properties and not for general parking unrelated to their respective land uses.
• The best interpretation that respects both the appurtenant nature of the easement and the prohibition against general public uses is that when the City acquires the park, those coming to visit the park may use the 54 FHVC parking spaces. The City may not, however, allow non-park users to park on the FHVC property. For example, the City could not invite the general public to use FHVC property as a “park and ride” lot. Such general public use would violate the terms of the easement. Allowing the public park
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November 27, 2023
visitors to use the easement in its capacity as the dominant estate holder does not violate the terms of the easement; it is not a use by the “ general public” but rather a use by park visitors with appurtenant rights to use that easement.
• As stated above, Lennar is designing the Project in a manner that does not rely on the right to use 54 parking spaces on FHVC’s property. The Project will have sufficient parking onsite to support all of its commercial, residential and park uses and does not intend to utilize its rights under the 1989 Easement.
b. Key Terms of the 1990 Easement.
i. T he 1990 Easement was entered into because the City required FHVC to have access to 36 additional parking spaces to satisfy its parking requirements. The easement states expressly “In the event the City of San Marcos does not require [FHVC] to provide 36 off-site parking spaces, … [FHVC and Eubank], upon written request of [FHVC] agree to relinquish their rights and duties herein by execution of a recordable instrument revoking the duties under this paragraph.”
• City parking requirements have changed since 1990 such that it no longer requires FHVC to have access to 36 offsite parking spaces. Zoning requires FHVC to have 77 parking spaces, and it has 82 onsite. FHVC is not willing to terminate the 1990 Easement even though it not longer serves its intended purpose.
ii. Focusing on the terms of the 1990 Easement, it grants FHVC an easement over the Eubanks Parcel as follows:
“Eubank grants to FHVC the right of the customers and invitees of FHVC to use, in common with Eubank, its customers and invitees and its tenants customers and invitees all areas used for parking on [the Eubanks Parcel], subject to the terms and conditions contained herein.
FHVC grants to Eubank the right of the customers and invitees of Eubank and Eubank’s tenants, to use in common with FHVC, its customers and invitees all areas used for parking on the [FHVC Property], subject to the terms and conditions contained herein.
Each reciprocal parking easement is subject to the following restrictions, terms, and conditions: . . . (ii) it shall not be used for vehicular parking by employees, workman, suppliers or suppliers of the receptive grantee. . . .
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November 27, 2023
“Eubank hereby grants to FHVC the non-exclusive right to use in common with Eubank, Eubank’s tenants and the customers and invitees of Eubank and Eubank’s tenants, the 36 parking spaces designated as such on the map attached hereto marked exhibit “A”.”
. . .
“Nothing contained herein will be deemed to be a gift or dedication of any portion of either of the properties involved herein for the general public or for any public purpose whatsoever.”
iii. FHVC Position: FHVC states the easement terms only permit commercial patrons to use parking on the FHVC and the Eubanks Parcel and that the Project would violate the easement by allowing residential and park users to utilize this parking. FHVC believes the park uses specifically violate an easement term prohibiting use of parking by the general public or for any public purposes.
iv. Lennar’s
Response:
• FHVC is misinterpreting the easement to contain a covenant prohibiting owners from allowing employees, the general public and anyone that is not a “customer or invitee” from using parking on its own Property. This is not the case. These limitations on users are binding only on the easement grantee using its neighbor’s property (not the grantor). • As such, there is nothing prohibiting the Project from allowing park visitors, employees, residents or other “non-customers and invitees” from using the parking on the Project site.
• As stated above, Lennar does not propose to permit residents, employees or park patrons to park on FHVC property, though doing so would not violate the terms of the easement for the reasons described with respect to the 1989 easement (its an appurtenant easement that runs with the future public park land).
• Lennar will permit FHVC customers and invitees to use 36 of the 117 open parking spaces on the Project site on a nonexclusive basis with the Project, consistent with the terms of the 1990 easement. Note that FHVC’s right to use 36 spaces is spread across the Project site, BWW and CDC premises.
Lennar does not propose to allocate the shared parking obligation amongst those 3 premises, however. FHVC can use any of the open parking spaces on the Project site.
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November 27, 2023
• See discussion under 1989 Easement above for further explanation as to why park users would be relying on beneficial easement rights to use park parking, not “general public purpose” rights.
c. Inverse Condemnation. FHVC argues that allowing park visitors, residents and residential guests to park on the Project site and/or the FHVC site is a “taking” of FHVC’s parking rights without just compensation and exposes to the City to liability for inverse condemnation. FHVC’s inverse condemnation claims are easily refuted as follows:
i. The Project is not a “public project” that can give rise to liability for inverse condemnation. Rather, the Project is private development with a small public park component.
• The City’s approval of the Project does not “take” away any of FHVC ’s rights to use 36 parking spaces on the Eubank ’s Parcel. The Project fully respects all of FHVC’s easement rights.
• The Easement Agreements do not contain covenants prohibiting Lennar or the City from allowing park visitors to park on the Project site and so there can be no “taking” of FHVC’s property rights if Lennar allows Project employees, residents, park visitors or anyone to park on the Project site.
FHVC’s arguments to the contrary lack merit.
• Lennar, in its capacity as the easement grantee, does not intend to promote any parking on FHVC property for Project residents, tenants, invitees or park users. Thus, approval of the Project will not “take” any parking on the FHVC property under the easement agreements.6
• Since park visitors will park on the Project site, there will be no “ invasion” of park users on the FHVC Property or any “burden” on the FHVC property.
Moreover, if FHVC is truly concerned about park parking, it should al low modifications to its access easement so that Lennar can add an additional parking space on the Project site, adjacent to the park. • Even if FHVC were right and the City is “ taking” FHVC’s parking rights by allowing park visitors to use parking on the Project site, FHVC will not suffer any damages. FHVC has 82 parking spaces onsite and it only needs 59 parking spaces at its busiest hour and it only needs 77 parking spaces to satisfy City parking requirements.
6 However, we believe park patrons can park on the FHVC property under the easement agreement for the reasons stated above. Nevertheless, Lennar does not intend to advertise or promote those parking rights.
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November 27, 2023
d. Dedicated Parking for Adjacent Owners. FHVC argues that the Project is required to s et aside an EXTRA 36 p arking spaces for FHVC and 57 parking spaces for the nearby Regal theater, above and beyond what is required to satisfy the Project’s own parking requirements . In essence, FHVC believes the Project needs to be “overparked” by 36 parking spaces to satisfy its easement obligation to FHVC and “overparked” by 57 parking spaces to satisfy its parking commitment to the theater. These claims are baseless for the following reasons:
• The 1990 Easement only requires the Project to make 36 parking spaces available to FHVC on a non- exclusive basis. The Project satisfies this requirement by allowing FHVC to share the 117 open parking spaces located on the Project site. Nothing in the easement or elsewhere requires 36 parking spaces to be made available for the exclusive use of FHVC or to be guaranteed to always be available for FHVC’s use. • The 1996 REA7 was entered into by multiple owners within the shopping center to collectively provide 57 additional parking spaces for the theater.
The 1996 REA covers the former Eubanks Parcel (Project site, BWW, CDC), the Well Fargo parcel, the 338 Via Vera Cruz parcel and the theater parcel. Those parcels provide well over 1,000 parking spaces and can easily cover the 57 parking spaces needed for the theater. In any event, there is nothing in the agreements requiring Eubanks or the Project site to bear the sole burden of providing 57 parking spaces for the theater. The theater will have access to the use of the 57 open parking spaces on the project space, however.
3. Pickleball Court Parking and Noise.
a. FHVC argues that the pickleball courts will generate substantial traffic and believes the traffic analysis should use a much higher trip generation rate for the public park.
i. ADT. FHVC states the park ADT should be (i) 50 trips per acre x 1.1 acres = 55 ADT, plus (ii) 40 trips per court x 4 courts = 160 ADT, for a total of 215 average daily trips.
ii. Lennar’s Response: The CEQA analysis properly assumes the public park will generate 55 ADT.
7 This refers to the 1996 Declaration of Reciprocal Easement Agreements recorded in the Official Records of San Diego County on November 7, 1996, as Document No. 1996-0564623; the modified by First Amendment to Declaration of Reciprocal Easement Agreement recorded on April 19, 1999, as Doc. No. 1999-0258087. A copy of the 1996 REA is attached as Attachment 2 to the Parking Study.
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• First, FHVC is double counting park trips. The 50 trips per acre should be reduced from the trips allocated to the pickle ball courts using FHVC ’s proposal.
• T he Project park is a small neighborhood park that will mostly serve the surrounding residents, many of whom will walk or skate to the park. Those driving to the park will likely carpool and not all arrive in single occupancy vehicles (SOVs).
• Intersecting Metric’s park trip generation rate of 50 trips per acre is derived from the SANDAG (not so) Brief Guide of Vehicular Traffic Generation Rates for the San Diego Region. It is the rate given for “Parks – C ity (developed w/meeting rooms and sports facilities). ” The Project will provide a City park with sports facilities, namely the pickleball courts. This is the most appropriate trip generation rate for the Project’s park. • FHVC argues for use of the SANDAG trip generation rate of 30 ADT per tennis courts per or 40 ADTs per racquetball court. These rates are appropriate for facilities that only have tennis courts or racquetball court as their primary “ land use ”, but for a “Park” with multiple uses, SANDAG recommends the trip generation rate of 50/acre, which is what the Project used.
b. Parking. To support the finding that the Project is being designed with sufficient parking considering the inclusion of 4 pickleball courts, Lennar’s parking consultant, Intersecting Metrics, performed an evaluation of a comparable existing park containing 4 pickleball courts. It concluded that the parking requirements for the Project are in line with expected parking demands.
i. Intersecting Metrics studied the pickleball courts at Innovation Park.
Innovation Park is a City park containing 4 pickleball courts in the City of San Marcos in a community surrounded by residential and commercial uses. Innovation Park does not have any dedicated parking. Park visitors use street parking on Armorlite Drive that is also shared with area residents and retail businesses. Peak pickleball hour was Saturday morning at 10:00 when 30 players were observed. Those 30 players did not arrive in 30 separate cars. (Household Travel Survey Data shows that 81% of trips to recreational facilities are by personal vehicles with an average occupancy per vehicle of 2.57 people.)
ii. Bleachers will not increase parking demand. At Innovation Park, people waiting for a pickleball court will wait at a table or bench or in the grass.
At Restaurant Row, people can wait in the bleachers. Many of those that drive will carpool so FHVC’s concern that there will be 16 separate cars (4 players for each of the 4 courts) plus those waiting in the bleachers is farfetched.
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November 27, 2023
iii. It should be noted that since the Planning Commission hearing, the Project has added 17 additional parking spaces adjacent to the park. The park was reduced in size to create these additional parking spaces because FHVC would not permit Lennar to make minor modifications to its access easement to provide additional parking along the park frontage.
The Project can provide an additional parking space adjacent to the Park if FHVC will allow minor modifications to its easement. c. Noise. FHVC argues that t he pickleball courts will expose FHVC to excessive noise. The City ’s noise threshold for commercial zones is 65 dBA Leq. and pickleball noise within the FHVC patio will only be 47 dBA Leq., which is less than the existing ambient noise levels caused by Via Vera Cruz street noise. As such, the Project’s pickleball courts will not expose FHVC diners to excessive noise. i. A Memorandum prepared by Jonathan Leech, INCE, Senior Acoustician at Dudek dated November 14, 2023 (“FHVC Noise Memo”) performed an analysis concluding that average pickleball noise within the FHVC outdoor patio dining area would be 53 dBA Leq, which is well below the City’s noise threshold. When factoring the sound attenuation from the approximately 8-foot perimeter wall that surrounds FHVC’s patio, the noise level reduces further to 47 dBA Leq.
ii. According to the FHVC Noise Memo, “The noise level for a conversation between two people standing three feet apart is approximately 65 dBA Leq. Therefore, pickleball noise levels within the outdoor patio dining area would be much lower than conversation noise levels and would not interfere with conversations or other noise-sensitive activities within the patio area.”
iii. Existing ambient noise experienced in the patio from Via Vera Cruz street noise is higher (6dBA) than the pickleball noise will be.
4. Parking Calculations : FHVC argues the City should have calculated parking for commercial uses based on gross square feet rather than net square feet, the City should have imposed additional parking requirements for outdoor dining and the City should have imposed a parking standard based on the number of employees. a. FHVC indicates that City-wide parking regulations determine parking requirements based on gross, rather than net square footage. The Project’s Specific Plan, however, calculates parking requirements based on net square footage.
Commercial parking requirements for the Project were based on a study of existing restaurant parking demands at BWW, CDC and FHVC, as well as a consideration of the specific mix of land uses for the Project. The parking requirements are set out in a Specific Plan applicable to the Project; not the City’s general, city -wide parking requirements that are designed to fit a variety of facts and circumstances
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that could arise. As such, the City’s general calculation based on gross square feet is irrelevant to the Project.
b. Because the Project has a custom parking requirement, there is no need to account separately for gross vs. net square feet for the ability of a restaurant to have an outdoor dining area of up to 35% o f cumulative net commercial interior square footage without additional parking, or to require additional par king based on the number of employees at an establishments. These considerations are all subsumed in the proposed parking requirement for 7.5 parking spaces per 1,000 net square feet for larger than 2,000 square fee t restaurants, 6.5 parking spaces per 1,000 net square feet for restaurants less than 2,000 square feet , and 3 parking spaces per 1,000 net square feet for retail uses. c. It should be noted that the existing BWW, CDC, and FHVC uses all have a combined demand of 7.5 per 1,000 SF, based on the analysis by Intersecting Metrics. This accounts for employee parking, outdoor dining areas and all other factors that impact parking demands.
d. It should also be noted that under City-wide rules, no additional parking is required for outdoor dining areas that are 25% of the indoor dining area. The Restaurant Row Specific Plan increases that to 35%, but believes that the mixed use nature of the project site supports this parking standard.
e. Please keep in mind that the Project’s restaurant patrons have rights to park at the 338 Via Vera Cruz office building, the theater, the BWW/CDC parking lots and even the FHVC parking area (up to 54 parking spaces).
f. Please also keep in mind that ride share services, food delivery services and other innovations likely reduce and will continue to reduce parking demands, though the Project does not take any reduction in parking requirements for such realities. g. There is more than sufficient parking for the Project. As noted above, the Project design has been modified to add 17 additional parking spaces since the Planning Commission hearing and there is the potential to provide 13 more parking spaces along San Marcos Blvd.
5. Parking Shortages will Result in VMT Increases as People Drive Around Looking for Parking: FHVC believes that Project vi sitors, employees, invitees and residents will spend significant time driving up and down the parking lots looking for a parking space, which will result in an increase in VMT that is not accounted for in the Project’s environmental analysis. For the reasons stated above, there is no reason to believe that the Project will result in parking shortages. The evidence in the administrative record demonstrates there is sufficient parking to serve the Project onsite, with an abundance of surplus parking available offsite pursuant to the various shared parking agreements . In any event, any driving around that patrons do in search of parking will certainly not have
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a material impact on the Project ’s VMT. The Project results i n a net reduction of more than 23,000 vehicle miles traveled. (See MND, pp. 78-79.) Finally, it should be noted that FHVC seems to have forgotten that transportation impacts are no longer based on levels of congestion. That is what FHVC is really complaining about when it argues that cars will circle around in search of a parking space and that is not a CEQA issue.
6. Calculation of Trip Generation Rates and VMT. FHVC argues that the Project incorrectly calculated trip generation rates and vehicle miles traveled in a manner that understates the Project’s environmental impacts. These claims are simply untrue. a. The site i s a redevelopment project because it is demolishing existing uses and replacing them with new uses, and therefore the Project correctly utilized the redevelopment methodology for evaluating VMT impacts , as further explained in the Project’s MND (see MND, pp. 78-79). The analysis demonstrates the Project will generate fewer VMT than the existing retail center and therefore concluded that VMT impacts are less than significant. This is explained by the fact that the Project is predominantly residential which is a land use that generates substantially fewer vehicle miles than commercial uses. 60,000 SF of retail space (generating 34,216 VMT) is being removed and replaced with 10,000 SF of retail space, 201 residential units and 1.1 acres of park (generating 10,407 VMT). The Project will result in a net reduction of 23,809 VMT. (See MND, pp. 78-79.) b. FHVC argued that VMT should have been calculated based on existing driveway counts rather than existing uses because some of the existing commercial spaces are vacant. In response, Intersecting Metrics analyzed VMT based on existing driveway counts, as FHVC requested. That analysis still showed a net reduction in VMT. (See Memorandum by Intersecting Metrics Regarding San Marcos Restaurant Row – VMT Impact Analys is dated September 25, 2023 (“Supplemental VMT Analysis”), which is attached as an Attachment 4 to the Responses to Comments on the MND.)
c. FHVC also argued that VMT should have been calculated using the “mixed use methodology” rather than the “redevelopmen t methodology”. The mixed use methodology evaluates the VMT associated with each component of the Project separately. As requested by FHVC, Intersecting Metrics analyzed VMT using the mixed use methodology rather than the redevelopment project. That analysis also showed the project will result in a net reduction in VMT. (Supplemental VMT Analysis.)
d. FHVC also argue s that it was an error to exclude the park acreage from the calculation of the Project’s residential density, which error results in an understatement of the Project ADT and VMT. This allegation is also baseless.
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The trip generation rate is 8 daily trips per unit for multifamily projects with a density of between 6-20 units per acre, and 6 trips p er unit for multifamily projects with a density of more than 20 units per acre. If the park acreage is included when calculating the residential density, then t he Project’s density is less than 20 units per acre and therefore assumed to have a trip generation rate of 8 daily trips per unit. If the park area is excluded from the residential density calculation, then the Project’s density is 21.5 units per acre and the lower trip generation rate applies. (See RTC O5-19.)
Because residences will not be constructed on t he park , the park area was appropriately excluded from calculation for determining residential ADT. This methodology of excluding public park areas is consistent with the SANDAG Trip Generation Guidelines which direct trip generations be calculated based on net residential acreage. FHVC alleges that the park should have been included simply because the residential and park components would be in comm on ownership (until the park is conveyed to the City). Land uses, not ownership of land, drives the analysis of VMT and ADT. FHVC ’s arguments to the contrary are not compelling.
Lennar is disappointed that FHVC opposes the Project, but is confident that the Project will have sufficient onsite parking to support all components of the Project without spilling over onto FHVC’s property, that the Project is being designed in a manner that respects FHVC’s parking rights under the shared parking agreements and that will not have any unmitigated significant environmental impacts. On behalf of Lennar, we respectfully request that the City approve the Project as proposed.
Very truly yours,
Jennifer L. Chavez
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
SMRH:4865-3825-7810.3
cc: Alex Plishner
Dave Shepherd