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Agenda Item
ASR
Control 21-000763 |
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MEETING DATE: |
01/11/22 |
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legal entity taking action: |
Board of Supervisors and Orange County Flood Control
District |
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board of supervisors
district(s): |
All Districts |
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SUBMITTING
Agency/Department: |
County Executive Office (Approved) |
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Department contact
person(s): |
Thomas Miller (714) 834-6019 |
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James Treadaway (714) 667-9700 |
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Subject: Resolution, Air Rights
Easement Deed and Ordinance for Commercial Advertising
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ceo CONCUR |
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Clerk of the Board |
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Concur |
Approved Agreement(s) and Resolution(s) |
Discussion |
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3 Votes Board Majority |
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Budgeted: Yes |
Current Year Cost:
N/A |
Annual Cost:
N/A |
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Staffing Impact: |
No |
# of Positions:
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Sole Source:
N/A |
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Current Fiscal Year Revenue: $11,500
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Prior Board Action: 7/05/1960,
2/23/1960 |
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RECOMMENDED ACTION(S):
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1. |
Adopt Resolution finding that the sale of outdoor advertising space on County and Orange County Flood Control District real and personal property may be used to raise revenue to provide for basic and essential public services; and rescind any previous resolutions which would conflict with the intent and purpose of this resolution, including Resolutions F60-23 and F60-65. |
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2. |
Find that the Air Rights Easement Deed to San Diego Outdoor Advertising, Inc., is compatible with the flood purposes of the easement area and use of the easement area in accordance with the Air Rights Easement Deed will not interfere or conflict with the uses and purposes of the Orange County Flood Control District. |
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3. |
Approve conveyance of an Air Rights Easement Deed to San Diego Outdoor Advertising, Inc., a California corporation dba General Outdoor Advertising on behalf of the Orange County Flood Control District and authorize the Director of Public Works or designee to execute the Air Rights Easement Deed in substantially the form attached with minor modifications that do not change the obligations to the Orange County Flood Control District with approval as to form by County Counsel. |
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4. |
Read title of the Ordinance, “An Ordinance of the County of Orange, California, creating Article 5 of Division 7 of Title 2 of the Codified Ordinances of the County of Orange, adding thereto Sections 2-7-40 through 2-7-42 providing for Commercial Advertising on County and Flood Control District Property.” |
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5. |
Order further reading of the Ordinance be waived. |
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6. |
Direct Ordinance be placed on the agenda of the next regularly scheduled Board meeting for adoption. |
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7. |
At the next regularly scheduled Board meeting, consider the matter, and adopt the Ordinance providing for the regulation and sale of commercial advertising space on County and Orange County Flood Control District property for the intent of raising revenue. |
SUMMARY:
Adoption of a Resolution removing the restrictions from advertisements being placed on Orange County Flood Control District property and approval of conveyance of an Air Rights Easement Deed will allow for the development of a billboard providing public benefits to the City of Fullerton; and introduction of an Ordinance creating Article 5 of Division 7 of Title 2 of the Codified Ordinances of the County of Orange, adding thereto Sections 2-7-40 through 2-7-42, will provide for commercial advertising on County and Orange County Flood Control District property and promote future revenue opportunities for the County and Orange County Flood Control District.
BACKGROUND INFORMATION:
On February 23, 1960 and July 5, 1960, the Board of Supervisors (Board) of the Orange County Flood Control District (District) adopted Resolutions No. F60-23 and No. F60-65 (Attachments A and B), respectively, which resolved that no outdoor advertising signs be permitted, nor shall any leases, permits or other rights be granted for the establishment of outdoor advertising on District lands, easements or right of way. Over the years these resolutions have restricted District and County staff from exploring opportunities for outdoor advertising and working with Supervisors to explore these opportunities. Based on the below, County Executive Office Real Estate (CEO Real Estate) is proposing to rescind these resolutions. Any outdoor advertising will require Board approval, so the mere rescission of the resolutions will not result in any outdoor advertising on District or County property without further Board consideration and approval.
Proposed
Billboard over District Channel in Fullerton
On August 18, 2020, Fullerton City Council adopted Ordinance No. 3287 which allows consideration of freeway-oriented electronic billboards along State Route 57 (SR-57) and State Route 91 (SR-91). This ordinance adopted definitions, review procedures, approval processes and applicable development standards via an amendment to the Fullerton Municipal Code (FMC) Chapter 15.49 pertaining to the regulation and permitting of freeway-oriented electronic billboards. Pursuant to Fullerton Municipal Code Section 15.49.120, the City of Fullerton (City) may permit freeway-oriented electronic billboards subject to the requirements contained in the FMC with the review and approval of a Conditional Use Permit and a Development Agreement.
The firm General Outdoor Advertising (GOA) has entered into a lease agreement with the property owner at 303 North Placentia Avenue, Fullerton (Property) for the proposed development of a freeway-oriented electronic billboard (Billboard) within the parking lot of the Property and extending over the District’s Placentia Storm Channel (Channel). The Property is located directly east of SR-57, south of Chapman Avenue and consists of a commercial office building built in 1972 with a small parking lot. The Property is within an urban area and is surrounded by other commercial properties.
The proposed Billboard will feature a modern design, with blue, white and orange accents and feature “City of Fullerton” at the top of the sign and display the City’s logo on the support structure. According to plans, the proposed Billboard is to be 66 feet, six inches in overall height and will provide two electronic displays (currently LED technology) that are 14 feet by 48 feet in a V-shape configuration and visible from both directions of traffic along SR-57 and surrounding public streets. The overall size and height are consistent and similar in size to existing billboards in the surrounding area at Cal State Fullerton and in the City of Placentia. The proposed Billboard will extend approximately 18 feet, eight inches over the Channel and will be elevated 50 feet above grade. OC Public Works reviewed the proposed Billboard plans, which are attached hereto as Attachment C, and determined the proposed Billboard would be compatible with its maintenance and operations on the Channel.
On April 30, 2021, GOA received preliminary approval of the Billboard from the California Department of Transportation (Caltrans). On May 26, 2021, the City Planning Commission held a public hearing and unanimously recommended City Council approval of the Billboard, including a Conditional Use Permit and Development Agreement. On July 6, 2021, Fullerton City Council adopted Resolution No. 2021-48 approving a Conditional Use Permit for the Billboard and introduced Ordinance No. 3300 approving a Development Agreement for the Billboard, which was later adopted on July 20, 2021. An executed copy of Resolution No. 2021-48 and the Development Agreement are attached as hereto as Attachments D and E, respectively.
The Development Agreement, which has a 30-year term plus options to extend for two, five-year periods for a total of 10 additional years, memorializes operational and maintenance requirements for the Billboard. The Development Agreement also provides GOA with assurance that the development of the Billboard may proceed subject to the rules and regulations in effect at the time of Billboard approval and provides the City with assurance that certain obligations, including public benefit, by GOA will be met. Public benefit includes an annual public benefit fee payable by GOA to the City in the sum of the greater of $75,000 each calendar year or twelve percent of the gross receipts, less agency commissions, generated by the Billboard. As another public benefit, GOA has agreed to provide the City a portion of the Billboard’s total available display time to allow the City to present public service messages and public safety alerts. GOA has also agreed to provide area within the Billboard structure to provide conduit within the sign structure for any potential future closed-circuit television (CCTV) capabilities. Per Section 5.3 of the Development Agreement, GOA voluntarily covenants and agrees for itself, its successors and assigns, to prohibit advertising displayed on the digital display area for adult-oriented businesses or tobacco products.
The Billboard must also comply with State law regarding any limitations of light or glare and other standards under the Outdoor Advertising Act. The Billboard will need final review and approval from Caltrans which considers the health, safety and general welfare of those traveling along state roadways and freeways. The proposed Billboard would not create a hazard as it must adhere to all Caltrans regulations for placement, reflection and visibility.
Air Rights
Easement Deed
The City and GOA approached the District and County regarding the proposed Billboard and about GOA acquiring the necessary rights for its Billboard to occupy air space above the Channel. In response, CEO Real Estate negotiated the proposed Air Rights Easement Deed (Attachment F) with GOA, which upon Board approval will allow GOA to obtain issuance of a building permit from the City. The Air Rights Easement Deed provides GOA with a non-exclusive, non-perpetual air rights easement for the operation, occupancy and use of Billboard overhang on, in and through a portion and volume of the air space above the Channel. The term of Air Rights Easement Deed shall commence on the date that District confirms receipt, as memorialized in writing to GOA, that GOA has provided proof of all entitlements for development of the Billboard and shall terminate at the end of the thirtieth year after commencement or upon termination of the Development Agreement, whichever is earlier, unless otherwise terminated earlier or extended in accordance with the terms therein.
Pursuant to the Air Rights Easement Deed between GOA and District, GOA shall pay District both a one-time, non-refundable Air Rights Easement Fee in the amount of $10,000 and a one-time administrative fee in connection with the negotiation and processing of the Air Rights Easement Deed in the amount of $1,500. Board approval of the Air Rights Easement Deed first requires that the Board rescind existing Resolutions No. F60-23 and No. F60-65 that prohibit outdoor advertising signs and the granting of rights for the establishment of outdoor advertising on District lands, easements or right of way.
Resolution and
Ordinance
The Resolution (Attachment G) proposed for Board adoption would rescind Resolutions No. F60-23 and No. F60-65 and any other previous resolutions that conflict with the intent and purpose of the proposed Resolution. The proposed Resolution would find that the sale of outdoor advertising space on County and District real and personal property may be used to raise revenue to provide for basic and essential public services, would require any use of District property for advertising be consistent or compatible with flood control purposes and would require any approval of advertisement on County and District property shall comply with the provisions of the Outdoor Advertising Act and any applicable Orange County Codified Ordinances. Government Code 26109 (Attachment H) authorizes the Board to establish an Ordinance which would provide for and regulate the sale of advertising space on County real and personal property for the purpose of generating revenue. Orange County Flood Control Act, Water Code Appendix section 36-2(b)(4) (Attachment I), authorizes the District to, inter alia, sell, lease, exchange, or dispose of real or personal property. As authorized by these statutes, CEO Real Estate is introducing a proposed Ordinance (Attachment J) providing for the regulation and sale of commercial advertising space on County and District property for the intent of raising revenue. Adoption of the proposed Resolution and Ordinance will provide for future revenue opportunities for the County and District. Any such opportunities will require further Board consideration and approval.
Compliance with CEQA: This action is not a project within the meaning of CEQA Guidelines Section 15378 and therefore not subject to CEQA, since it does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The approval of this agenda item does not commit the County or District to a definite course of action in regard to a project since it includes adoption of a Resolution removing the restrictions from advertisements being placed on District property, approval for the conveyance of an Air Rights Easement Deed which would allow for the development of a billboard providing public benefits to the City of Fullerton and introduction of an Ordinance providing for commercial advertising on County and District property. Pursuant to Fullerton Municipal Code Section 15.49.12 the City may permit freeway-oriented electronic billboards subject to the requirements contained in the FMC with the review and approval of a Conditional Use Permit and a Development Agreement by the City. This proposed activity is therefore not subject to CEQA. Any future action connected to this approval that constitutes a project will be reviewed for compliance with CEQA.
FINANCIAL IMPACT:
The Resolution and Ordinance are intended to facilitate future revenue generation for the County and District. Revenue will be absorbed in Fund 400, OC Flood, FY 2021-22 Budget for one-time, non-refundable Air Rights Easement Fee in the amount of $10,000 and a one-time administrative fee in the amount of $1,500. This revenue was unknown at the time of the FY 2021-22 budget development.
STAFFING IMPACT:
N/A
REVIEWING AGENCIES:
OC Public Works
ATTACHMENT(S):
Attachment A - Resolution No. F60-23 (February 23, 1960)
Attachment B - Resolution No. F60-65 (July 5, 1960)
Attachment C - Billboard Plans
Attachment D - City of Fullerton Resolution No. 2021-48
Attachment E - Development Agreement
Attachment F - Air Rights Easement Deed
Attachment G - Resolution
Attachment H - Government Code Section 26109
Attachment I - Orange County Flood Control Act, Water Code Appendix Section
36-2
Attachment J – County of Orange Codified Ordinance
Attachment K - Real Property Conveyance Questionnaire