October 9, 2011

The Light at the End of the Tunnel Appears to be a Train...

As first reported by LBReport, the Second + PCH staff report is available. You can download the staff report and associated exhibits by clicking here.

Quite frankly, this is just a hot mess. Now, to be sure, I have some wickedly strong thoughts on the matter, but my opinions aren’t nearly as relevant as the contents of this staff report, and the implications of a “yes vote” by the Planning Commission, and subsequently by the City Council.

Where does one begin when there is just so much wrong? I guess I’ll start with the bait and switch.

Though the amendment appears to be specific to Subarea 17 of SEADIP, page 2 of the staff report states that, “development on this project site should reflect the following considerations:

1) The need to redevelop and upgrade the project site
2) Compatibility with surrounding properties
3) Adoption of land use and development standards that would be appropriate for other nearby sites.”

I’m sorry, come again? The City wants development on this site to reflect “…land use and development standards that would be appropriate for other nearby sites?” And, no, that's not a typo, because City staff reiterated this position on page 3 of the staff report, "these amendments would also set standards that could be applicable to other nearby properties for future improvement proposals."

So though the City and the applicant have spent YEARS telling the public that the requested land use and design standards wouldn’t have any “spill over” effects on adjacent parcels, 6 days before the Project is scheduled to be approved by the Planning Commission, the City states that their ultimate intent is to adopt standards which would be appropriate elsewhere. Got it. Rhetorical question for 3rd District Councilman Gary DeLong, the development team and others: still think this Project won’t set a precedent for the area?

Secondly, the City established a “bifurcated” approval process which was not assumed in the Recirculated Draft Environmental Impact Report (RDEIR). By that, City staff is recommending approval of the LCP/SEADIP amendment now, with subsequent certification by the California Coastal Commission (CCC). Only after the CCC certifies the LCP/SEADIP amendment can the requested Site Plan Review, Tentative Subdivision Map, Standards Variance and Local Coastal Development Permit approvals transpire. In the meantime, the developer twists in the wind for as long as it takes for the CCC to sort through this quagmire. These approvals are continued to a date uncertain.

Certification of an LCP amendment is an arduous, time-consuming exercise that involves a lot of “back and forth” between the requesting City and the CCC. It is not a quick and dirty process, well, dirty maybe, but certainly not quick. And, of course, ultimately the Second + PCH Project would need to conform to whatever provisions are present in the newly certified LCP. For example, once the LCP is certified, the contents of the Project site plan will need to be revised to be consistent with the provisions of that new LCP. As the City stated, they can’t issue an entitlement package for a project that is inconsistent with a certified LCP, so if the applicant doesn’t revise their application package, a consistency issue exists as the site plan, etc. that are currently in play, just won’t work. These revisions take time; time the developers don’t have given the confines of the timeline established in the RDEIR.

The RDEIR assumed that the Project would break ground in early 2013, construction would conclude in 30 months and the Project doors would open in late 2015. This hardly seems to be a viable timeline given all of the very, very, very time-consuming steps ahead. And if it’s not viable, any analysis which relied on 2015 as the Project opening year must be redone (i.e. traffic impact assessment, etc), and “stepped out” to whenever the Project is likely to break ground, which in this case appears to be rather uncertain, especially given that City staff doesn’t even know when the entitlement package will be ready for approval.

So as it stands now, the City is stating that they don’t know when the Project will ultimately be approved but it is going to break ground in 2013. Is it going to pull a Hitchcock and break ground without permits? I don’t think so.

It would seem that as the City is recommending certification of the FEIR, therein stating with certainty that the EIR is adequate and the assumed timelines/analysis are accurate, they surely know when the entitlement package will be approved - it has to happen before early 2013. However, if the City can’t state when the entitlements will be approved, then they can’t state with certainty that the EIR and its conclusions are accurate. Right?

Because what happens in the very likely scenario that the applicant doesn't have permits "in hand" in time for the Project to break ground in early 2013 (the primary assumption in the presumably certified FEIR)? What happens if the applicant seeks approval of their entitlement package in, say, summer 2013? What environmental analysis document would be relied upon? The one in which the timelines and analysis would be stale and incomplete? Good luck with that.

Should the applicant not have their entitlement package "in hand" consistent with the timeframes assumed in the (presumably) certified FEIR, prior to approval of the requested entitlement package, a Supplemental EIR should be produced and circulated for public review and comment. The Planning Commission should add this as a stipulation of approval.

And does anyone think that the CCC is going to get all warm and fuzzy when it sees the City’s recommendation to allow building heights to 150 feet when the area currently prohibits buildings above 35 feet? A slam dunk, it is not. And when if the CCC has any changes to the City's recommended amendment, the CCC-revised matter goes back for review/approval to the Long Beach Planning Commission and City Council. Then back to the CCC for a vote. Round and round and round we go.

Further, the City has made no secret of the fact that they’d like for these standards to be applied elsewhere throughout SEADIP (see pages 2 and 3 of the staff report), so it wouldn’t surprise me in the least if the CCC opted to look at this comprehensively, given that master planning is the bedrock of the CCC planning process (thank you, California Coastal Commission).

And what if the CCC asks the City how they engaged the public on the issue of an LCP amendment? The City’s only justifiable response would be that it let the public know the specifics of the requested amendment 6 days before it was up for a vote. That should play well. I’m sure it will go even better when the City tells the short staffed CCC that they need the LCP revision fast tracked, given that the City has a currently non-conforming project waiting in the wings and that Project is assumed to be breaking ground in early 2013.

Oh tangled web.

But let’s assume the City’s LCP amendment recommendation holds as it is written (I don’t for a second believe it will, but humor me). Has anyone bothered to think about what the Project site would look like and if it is even feasible to build in this manner?

They are allowing for a 150 foot building, though that is only permitted on 30% of the building footprint, and that is only allowable if the average building height, spread out over the whole parcel, doesn’t exceed 55 feet. How short do the other buildings have to be to accommodate this, presumably, thin little spire of a tower? And we mustn’t forget that the site needs to maintain 30% open space, and parking structures and the like can’t be used when calculating the average building height. What would a project designed to these specifications look like? No one knows, at least not publicly.

Since the details of this amendment are coming out in the 11th hour, all the public can do is wonder. This is exactly why the amendment language should have been in the RDEIR, and made available for public scrutiny and comment! That it wasn’t simply flies in the face of CEQA.

And then there’s CEQA.

One of the quirky little things about CEQA is that it establishes times lines. For example, certification of the Final EIR (ultimately by the City Council) starts a clock. Aggrieved parties have a certain number of days to file a lawsuit, or the statute of limitations expires. Say someone sues. The applicant and landowner would be identified as a Real Party in Interest in the litigation. So Mr. Malmuth and the Lins would be defending (and funding) a lawsuit for a project that they don’t even have entitlements to build. Ouch. Unless, of course, they didn't sign an indemnity agreement, in which case the Long Beach taxpayers are on the hook for this debacle.

And make no mistake, the EIR isn’t exactly adequate. But that is a post for another day.

Oh yeah, almost forgot, the staff report is internally inconsistent with respect to the City staff's recommended building height: page 4 reflects that staff is recommending building heights not to exceed 120 feet, yet the amendment (Exhibit E, page 5) states that the recommended building heights are not to exceed 150 feet. For purposes of the above post, I assumed that the amendment language was correct.