HomeMy WebLinkAbout05/10/1993 Item #3• • W-33
City Council Meeting May 10, 1993
• Agenda Item No. 3
CITY OF NEWPORT BEACH CITY u
I
M4Y I n I
TO: Mayor and Members of the City Council
L
FROM: Planning Department
SUBJECT: Circulation Improvement and Open Space Agreement (CIOSA) -
Development Agreement No. 6
Request to amend Development Agreement No. 6 to incorporate an
addendum to the agreement which sets forth clarifying language, including
the scope of future discretionary actions of the City and the California
Coastal Commission, and adds exhibits with a higher level of detail which
were prepared subsequent to the original adoption of the agreement.
• INITIATED BY: The City of Newport Beach
Sueeested Action
Hold hearing; close hearing; if desired, introduce Ordinance No. 93- and pass to second
reading on May 24, 1993, being
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
AMENDING A DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF NEWPORT BEACH AND THE IRVINE
COMPANY FOR THE CIRCULATION IMPROVEMENT AND
OPEN SPACE AGREEMENT (DEVELOPMENT AGREEMENT
NO. 6)
Background
On September 14, 1992, the City Council adopted Ordinance No. 92 -35 adopting Development
• Agreement No. 6 for the Circulation Improvement and Open Space Agreement. As required by
State Law, the City and The Irvine Company have submitted the agreement to the California
Coastal Commission for approval. Coastal Commission staff prepared an analysis of the project
and submitted a report to the Coastal Commission in April, 1993. That report identified a number
of issue areas which needed resolution prior to approval. Additionally, the legal staff of the
Commission has made a preliminary determination that the Coastal Act does not allow for
conditional approval of development agreements by the Coastal Commission.
-9.3
•
TO: City Council - 2.
The Irvine Company and City staff have been working with Coastal Commission staff to resolve
the identified issues, including pointing out locations in the agreement provisions which address
areas of concern, and preparing additional language which could be added to the agreement to
clarify the scope and authorities of the City and the Coastal Commission in subsequent it
discretionary approvals, including Coastal Development Permits.
Discussion
The Irvine Company is preparing a proposed addendum to the CIOSA development agreement
(to be distributed prior to the City Council meeting). This addendum is intended to clarify the
authorities of the City and Coastal Commission in the subsequent review of site specific
development proposals. These clarifications, in association with the exhibits which define the
development constraints in greater detail, will resolve the stated concerns of Coastal Commission
staff in regards to geologic hazards and sensitive habitat impacts.
The addendum does not make any changes to the provisions of the development agreement.
Coastal Commission staff has indicated in meetings both before and after the publication of the
initial staff analysis that the basic concepts of the agreement which provide for increased open
space and roadway improvements are consistent with the provisions of the Coastal Act.
At the time of this writing, City staff and The Irvine Company are awaiting the final determination •
regarding the Commission's ability to conditionally approve a development agreement. Work also
continues on the specific provisions of the addendum, which is being reviewed by the City
Attorney's Office as well as the Coastal Commission staff. The City Council should be prepared
for additional distributions regarding this matter prior to the May 1Oth meeting.
Respectfully submitted,
PLANNING DEPARTMENT
JAMES D. HEWICKER, Director
By-1 C s ( /Cw i
Patricia L. Temple
Advance Planning Manager
Attachments: •
1. Draft Ordinance No. 93 -.
2. Development Agreement Addendum (to be distributed prior to the meeting).
3. Coastal Commission staff report regarding the CIOSA.
PLT:..1DA6 -SR2
0
ORDINANCE NO.-22-_
66chment No. 1.
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
AMENDING ADEVELOPMENTAGREEMENT BETWEEN
THE CITY OF NEWPORT BEACH AND THE IRVINE
COMPANY FOR THE CIRCULATION IMPROVEMENT
AND OPEN SPACE AGREEMENT
(DEVELOPMENT AGREEMENT NO. 6)
The City Council of the City of Newport Beach DOES ORDAIN as follows:
SECTION 1. The City Council finds and declares that:
a. The State Legislature and the City Council have determined that the
lack of certainty in the approval of development projects can result in a waste of resources,
escalate the cost of housing and other development to the consumer, and discourage
investment in and commitment to comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the public; and
b. Assurance that an applicant may proceed with a project in accordance
•
with existing policies, rules and regulations, and subject to conditions of approval, will
strengthen the public planning process, encourage private participation in comprehensive
planning, and reduce the economic costs of development; and
C. California Government Code Section 65864 et seq. authorizes cities to
enter into development agreements with any person having a legal or equitable interest in
real property for the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal Code provides
requirements and procedures for the amendment of development agreements; and
e. The amendment to Development Agreement No. 6 has been prepared
in compliance with state law and the Newport Beach Municipal Code; and
f. In compliance with state law and city ordinance, a duly noticed public
•
bearing was held by the City Council to consider an amendment to Development Agreement
No. 6; and
g. The City Council finds that said amendment to Development
Agreement No. 6 is in compliance with the California Environmental Quality Act and
Guidelines promulgated thereunder; and
h. The City Council finds that said amendment to Development
Agreement No. 6 is ftnformance with the Newport Beach Genera&
SECTION 2. Development Agreement No. 6 (Ordinance No. 92-35) is hereby
amended to add the following language to Section 6..4, as follows:
"Further, the City of Newport or the California Coastal •
Commission retain discretion in the review and approval of
Coastal Development Permits as set forth in the Addendum to
this agreement attached as Exhibit "I."
SECTION 3. Development Agreement No. 6 (Ordinance No. 92-35) is also
amended to add Exhibit "I," attached hereto as Exhibit "A."
SECTION 4. Copies of said Development Agreement and the amendment
thereto are on file in the offices of the City Clerk and Planning Department of the (Sty of
Newport Beach and said Development Agreement is made a part hereof by this reference.
SECIION 4. This Ordinance shall be published once in the official newspaper
of the City, and the same shall be effective thirty (30) days after the date of its adoption. •
This Ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 10th day of May 1993, and was adopted on the _
day of .1993, by the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST •
CITY CLERK
Attachment
Exhibit "A": Exhibit "I", an addendum to Development Agreement No. 6
PLT \CQDA \mA6.Oan
APR 06 '93 10 :45AM IRVI P CIFIC � arm ATTAigENT 3 P.2i30
4 STATE OF CAUFORMA —tM RESOURCES A004CY
CALIFORNIA COASTAL COMMISSION
SOUTM COAST AREA _
2AS W. BROADWAY, STE. -
P.G. ROA law
BEACH, CA 90BM4416
590-30t
DATE:
TO:
FROM:
SUBJECT:
March 31, 1993
Commissioners and Interested Persons
Chuck Damn, South Coast District Director
Teresa Henry. South Coast Asst. District Director
Meg Vaughn, Staff Analyst
SUMMARY OF STAFF RECOMMENDATION
Staff is recommending that the Commission deny the development agreement as
submitted because it is inconsistent with the Chapter 3 policies of the
•Coastal Act regarding hazard, habitat and public access.
STAFF NOTE
Pursuant to California Government Code Section 65869, a development agreement
is not valid for any development project located in an area for which a local
coastal program is required to be prepared and certified unless the Commission
approves such development agreement by formal Commission action. The City of
Newport Beach Land Use Plan was certified by the Commission with suggested
modifications in May 1982. No local Coastal Program for Newport Beach has
been certified to date. The proposed development agreement would affect nine
sites within the Newport Beach coastal zone (the development agreement affects
eleven sites total within the City). Of those nine, five represent different
uses than the site uses described in the City's certified Land Use Plan. The
changes proposed under the development agreement range from increased open
space to a change in allowable land use at a given site. As the standard.of
review in this case is the Chapter Three policies of the Coastal Act, rather
than the Land Use Plan, the development agreement will be reviewed for
consistency with Chapter Three of the Coastal Act..
ADDITIONAL INFORMATION_
•Questions concerning the subject Development Agreement should be directed to
Meg Vaughn, South Coast District Office of the California Coastal Commission.
245 W. Broadway, 4380, Long Beach, CA 90802. (310) 590 -5071.
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• Newport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
-,Page 2
TABLE OF CONTENTS
Executive Summary
3
I. Projection Description and Background
4
II. Staff Recommendation
7
Motion 1
7
Staff Recommendation
7
Resolution to Deny
7
III. Findings for Denial as Submitted
7
A. Hazard
7
B. Habitat
9
1. Coastal Sage Scrub
9
2. Freshwater Marsh
11
3. Cumulative Biological Impacts
12
C. Public Access
12
D. Archaeological Resources
14
LIST OF EXHIBITS
A. Development Agreement
B. Vicinity Map
C. Location Hap
0. San Diego Creek South Site Plan
E. San Diego Creek North & Jamboree /MacArthur Site Plan
F. Upper Castaways Site Plan
G. Bay View Landing Site Plan
H. Newporter North & Newporter Knoll Site Plan
1. Corporate Plaza West Site Plan
J. Bluff Setback Criteria
K. City's letter Regarding LUP Consistency
if
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Newport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
nige 3
EXECUTIVE SUMMARY
Pursuant to California Government Code Section 658694 a development agreement
is not valid for a development project located in an area for which a local
coastal program is required to be prepared and certified unless the Commission
approves such development agreement by formal commission action. Since the
development agreement involves nine sites in the coastal zone, the City of
Newport Beach and the Irvine Company ('applicants") have submitted the
development agreement to the Commission for its approval.
The entire Circulation Improvement and open Space Agreement involves the
eleven remaining undeveloped parcels owned by the Irvine Company within the
City of Newport Beach. Of the eleven, nine are within the coastal zone
boundary. The nine parcels are known as San Diego Creek South, San Diego
Creek North, Jamboree /MacArthur, Upper Castaways, Bay View Landing, Newporter
North, Newporter Knoll. Newporter Resort and Corporate Plaza West. Seven of
the nine parcels are adjacent to Upper Newport Bay.
The City of Newport Beach and the Irvine Company have negotiated a Development
Agreement pertaining to all eleven parcels. The agreement would result in
building entitlement for the Irvine Company, in exchange for which the City
•would receive pre - payment of required *fair- share" road iuvrovement fees, and
commitment to construct road improvements adjacent to the proposed projects.
Additionally, the Irvine Company will provide the City an interest -free loan
for other road improvements. Further, the Irvine Company will donate 152.
acres of land to the City for a variety of open space and recreation uses.
The proposed Irvine Company entitlement resulting from- the development
agreement is to be effectuated through planned community district regulations
(PC Texts). These PC texts are incorporated into the development agreement
and are attached to the development agreement as exhibit $. A separate PC
text has been developed for each of the nine subject sites. The PC texts
describe the amount, location and intensity of use to occur at the respective
sites.
The- development agreement provides the Irvine Company with specific
entitlement in exchange for specific benefits to the City. In order for the
Commission to approve the development agreement it must find the proposed..
entitlement to be consistent with the Coastal Act. More specifically, the
Commission must find that the amount, location and intensity of the
development described in the development agreement will not result in
significant adverse impacts and so is consistent with the Coastal Act. The
Commission cannot make that finding for the proposed development agreement:
When reviewing a development agreement for consistency with the Chapter 3
policies of the Coastal Act, the Commission must find that all impacts to.
coastal resources are adequately mitigated. In this case, the EIR prepared in
conjunction with the proposed development agreement identifies a number of
adverse impacts that may occur. Site specific investigations have not been '
conducted to determine whether all the potential impacts actually exist at the
respective sites. Therefore, the identified adverse impacts must be assumed
to be those impacts that will occur. To be consistent with the Coastal Act,
the development agreement would have to assure adequate mitigation for all
identified potential significant adverse impacts. The proposed development
agrttaeht does not Meet this requirement for the following four reasons.
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• Newport Beach /Irvine Company •
Circulation Improvements and Open Space
Development Agreement
Page 4
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First, the mitigation proposed for identified potential adverse geological •
.impacts includes further studies at some time in the future and determination
of appropriate mitigation at that time. However, mitigation determiped at
some point in the future to alleviate adverse geological impacts may
necessitate modifications to the very project entitlement and location
described in the proposed development agreement..'' Consequently, unless the
Commission is assured that mitigation necessary to alleviate identified
potential geologic hazards will not require a change in project location or
entitlement, the project location and entitlement cannot be approved as
submitted.
Second, with respect to identified significant adverse habitat impacts,
proposed mitigation measures are not adequate to assure that adverse impacts
have been mitigated to a level of insignificance consistent with Section 30240
of the Coastal Act.
Third, the development agreement as proposed does not limit development of
sites containing wetlands to the allowable uses defined in Section 30233 of
the Coastal Act or to the least environmentally damaging alternative.
Lastly, the possibility of a private, gated community between the public road
and the proposed public bluff top parks is a potential significant adverse
impact to public access to the bluff top and is inconsistent with Section •
30210 and 30212 of the Coastal Act. Additionally, the lack of any public
Parking associated with the proposed public parks is inconsistent with Section
30252 of the Coastal Act.
As submitted, the development agreement is inconsistent with the Chapter 3
policies of the Coastal Act with regard to minimizing hazards, protection of
environmentally sensitive habitat areas and the provision of public access.
1. Project Description and Background
Of the nine sites. within the coastal zone, five differ from the site
description contained within the City's certified Land Use Plan. Under the
proposed development agreement three sites, Newporter North, Upper Castaways,
and San Diego Creek South, provide more specific site descriptions. And two
of the sites, under the proposed agreement, would result in a change in land
use at the sites. Under the LUP the San Diego Creek North site is designated
for Administrative, Professional and Financial Commercial; the development
agreement proposes a change in designation to Open Space and Public Facility
uses. The LUP designates the Jamboree /MacArthur site for Administrative,
Professional and Financial Commercial; the development agreement proposes open
space and limited public facilities at the site. The City has chosen to go
forward with the project without amending the Land Use Plan.
,Y
Following are descriptions of each of the nine sites subject to the
development agreement that fall within the coastal zone.
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*Newport Beach /Irvine Company •
Circulation Improvements and Open Space
Development Agreement
page 5
• 1. San Diego Creek South
This is a 21 acre site and is bordered on the north by San Oiego,Creek, on
the east by Bonita Creek, on the south by University Drive, and on the
west by Jamboree Road (see exhibit D). The Land Use Plan allows a maximum
of 300 multi - family residential units. The development agreement would
allow 300 multi - family residential units oti•18.6 acres and open space on
2.4 acres.
2. San Diego Creek North
This is a 14.7 acre site bounded on the north and east by State Route 73
ramps, on the south by San Diego Creek Channel. and on the north and west
by Jamboree Road (see exhibit E). The San Joaquin Hilts Transportation
Corridor is proposed to pass through the. eastern portion of the site. A
proposed freeway access ramp will pass across the western portion of the
site. Bayview Drive is also proposed to pass across the southern portion
of the site. The Land Uses plan currently allows for 112,000 square feet
of office space and reservation of 2.5 acres for a fire station. The
proposed development agreement would result in dedication of the site for
open space and public facility uses and would eliminate the office use
entitlement.
• 3. Jamboree /MacArthur
This 4.7 acre site is bounded by MacArthur Boulevard on the east, a State
Route 73 ramp on the south and southwest, and Jamboree Road to the north
and northwest (see exhibit E). The LUP allows 50,000 square feet of
office space development on the site. The development agreement would
result in the dedication of the site to the City for open space and
limited public facilities. The public facilities which would be permitted
at this site under the agreement include transportation corridors and
appurtenant facilities. arterial highways and vehicular access, fuel
modification zones, drainage and flood control facilities, and off -site
directional signs.
4. Upper Castaways
This 56.6 acre site is bordered to the north and northeast by the Dover
Shores residential community, to the east and southeast by Upper Newport,
Bay, to the southwest by the bluff separating the tipper and Lower
Castaways sites, and to the west by Dover Drive (see exhibit F). The LUP
allows development of 151 residential units and designates 19.5 acres of
• the site as open space /park use. The proposed development agreement would
allow 151 residential units and 30.6 acres of open space. of the 30.6
acres of open space. a minimum of 11.5 acres allocated for a view park and
4.8 acres for an active park. The adjacent Dover Drive would be widened
into the site to provide a six lane divided facility. The agreement would
require completion of grading for widening of Dover Drive as a fronting 'r
improvement.
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• Newport Beach /Irvine Company 0
Circulation Improvements and Open Space
Development Agreement
Page 6
S. Bay View Landing
This 16.1 acre site is bounded by Back Bay Drive to the northeast, •
Jamboree Road to the east, Coast Highway to the south and Newport Dunes
Aquatic Park to the west. This site is divided into the 5 acre lower
portion and the 11.1 acre upper portion (see exhibit 6). The LUP
designates the lower site for 10,000 square'feet of restaurant use or
40,000 square feet for health club use. The LUP was recently amended to
allow a third optional use at the lower Bay View site: 120 units of
affordable senior housing when it is demonstrated that adequate visitor
serving opportunities exist within the area. The upper, 11.1 acres are
designated for open space uses. The proposal for this site under the
development agreement is consistent with the LUP designation.
6. Newporter North
This 77.2 acre site is bounded by San Joaquin Hills Road to the north,
Jamboree Road to the east, the John Wayne Tennis Club and John Wayne Gulch
to the south. and Upper Newport Bay and Back Bay Drive to the north and
west (see exhibit H). The Newporter Knoll site is located adjacent and to
the southwest of the site. The LUP allows development of 212 residential
units. The proposed development agreement would allow 212 units on 30.0
acres. The development agreement would allow townhomes. condominiums. •
apartments, single- family detached units. model homes and sales offices,
and recreational uses ancillary to residential uses. Bluff and natural
areas consisting of 47.2 acres will be preserved as open space including a
minimum 4.0 acre view park.
7. Newporter Knoll
This 12 acre parcel is bounded by Upper Newport Bay and Back Bay Drive to
the west. the Newporter North parcel to the north and John Wayne Gulch and
John Wayne Tennis club to the southeast (see exhibit H). Under both the
certified LUP and the proposed development agreement, Newporter Knoll is
designated for environmental open space.
B. Newporter Resort
This 23.9 acre site is bounded to the northeast by the Newporter North and
Newporter Knoll sites, to the east by Jamboree Road, and to the south and
west by Back Bay Drive. The LUP allows 419 hotel rooms. Currently, a 410
room hotel exists on the site. The development agreement would allow 66
hotel rooms in addition to the existing rooms, consistent with the LUP.
The rooms are proposed to be added to the existing structure. •
9. Corporate Plaza West
This 12.1 acre site is bounded by the Balboa Bay Tennis Club to the north,
Newport Center Drive to the east, Pacific Coast Highway to the southwest. j
and is adjacent to Club House Drive to the west (see exhibit 1). There
are 21,000 square feet of existing office space and landscaping on 3.1
acres of the site. The LUP allows for an additional 94.000 square feet of
office space on the remaining 9 acres of the site. Total entitlement at
the cite under the LUP is 115,000 square feet of office uses. The
development agreement proposes no changes for this site.
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41ewport Beach /Irvine Company 0
Circulation Improvements and Open Space
oevelopment Agreement
Page 7
. II. STAFF RECOMMENDATION
Staff recommends that the Commission deny the development agreement•as
submitted because it is not in conformance with the Chapter 3 policies of the
Coastal Act regarding hazard, habitat. archaeological resources and public
access. Following are the motions and resolutions to carry this out:
Motion 1
I move that the Commission approve as submitted the Development Agreement .
in Exhibit 1. .
Staff _Recommendati
Staff recommends a _U vote, and the adoption of the following resolution
and findings. An affirmative vote by a majority of the Commissioners
present is needed to pass the motion.
Resolution to deny the development agreement as submitted
The Commission hereby denies approval of the development agreement as•
• submitted for the reasons discussed below and that the submittal does not
meet the requirements of and does not conform to the policies of Chapter 3
of the Coastal Act to the extent necessary and that it will have
significant adverse impacts on the environment within the meaning of-the
California Environmental Quality Act.
1II. MUM FOR DENIAL AS SUBMITTED
Pursuant to California Government Code Section 65862, a development agreement
is not valid for any development project located in an area for which a local
coastal program is required to be prepared and certified unless the Commission
approves it through formal action. No-local coastal program for Newport Beach
has been certified to date. since the development agreement involves nine-.
sites within the Newport Beach coastal zone, the City of Newport Beach and the
Irvine Company ('applicants•) have submitted the development agreement to:-the
Commission for its approval. The - development agreement will be reviewed far-
conformance with the chapter 3 policies of the Coastal Act.
A. Hazards
• Section 30253 of the Coastal Act states, in part:
New development shall:
(1) Minimize risks to life and property in areas of high geologic, flood,
and fire hazard.
(2) Assure stability and structural integrity, and neither create nor
contribute significantly to erosion, geologic instability, or destruction of
the site or surrounding area or in any way require the construction of
protective dtvitey that %mid substantially alter nataral landforms along
bluffs and cliffs.
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Newport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
Page 8
In Sections 1..12, 4..2 and 5..2 of the proposed development agreement the
Irvine Company acknowledges that the agreement incorporates measures adopted
by the City Council to "mitigate environmental impacts as identified.in any
environmental document related to the property" (the "property" is identified
as the sites subject to the development agreement). The City Council adopted
the Environmental Impact Report prepared for the proposed development
agreement, prepared by ASB Planning Inc., and dated June 1, 1992.
In conjunction with the proposed development agreement, an earth resources
report was prepared for the project Environmental Fact Report. The report
is titled •Updated Geotechnical Constraints and Possible Mitigation Measures
for the Circulation Improvement and open Space Agreement (CIOSA)", and was
prepared by Zeiser Geotechnical, Inc. The report is dated February 19, 1992.
The report finds that potential negative impacts could result at all of the
nine project sites. The geology report identifies potential impacts arising
from the following geologic constraints at all the sites: faulting and
seismicity, erosion, compressible /collapsible soil, expansive and corrosive
soil, and near surface ground water. The geology report identifies further
potential impacts at the Jamboree /MacArthur, Upper Castaways. Newporter North,
Newporter Knoll, Newporter Resort and Corporate Plaza West due to potential
bluff /slope instability. Also identified are potential impacts from
liquefaction at San Diego Creek South and North, Jamboree /MacArthur, Upper
Castaways, Newporter North and Newporter Resort.
The above referenced report did not include any subsurface work. The report
includes as mitigation the recommendation that site specific geologic
investigations be conducted for each site and that the project geotechnical
consultant provide appropriate mitigation for any geological impacts
delineated at the sites.
Each of the project sites have been identified as being potentially
susceptible to various types of geologic instability in the earth resources
report_ Because the presence of potential hazards or the degree to which the
hazards exist have not been conclusively established by site specific
geological investigation including subsurface work, all identified potential
significant impacts must be mitigated in order to find that the amount of
development on the affected sites would minimize risks to life and property as
required under Section 30253 of the Coastal Act.
The Environmental Impact Report prepared for the project offers mitigation for
this primarily by requiring that the proposed projects conform to the Uniform
Building Code, the City's building requirements and any further mitigation
measures dictated by future site specific geologic investigations.
However. this mitigation is not adequate to assure that the development
entitlement allowed under this agreement is appropriate for the respective
sites. Future geologic investigation of the sites may indicate geologic
constraints on site that preclude development as described in the PC texts of
the development agreement. If this is found to be the.case, the required
mitigation may be to limit the amount, location and /or intensity of
development at the site.
C
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• ewport Beach /Irvine Company •
Circulation Improvements and Open Space
Development Agreement
"age 9
•In this instance, without site specific geologic information assurances that
all identified potential significant adverse impacts would be mitigated is
needed in order for the proposed development agreement to be found consistent
with Section 30253 of the Coastal Act for minimizing hazards. Alternatively.
the development agreement could limit the proposed amount and /or location of
entitlement described to that which could be accomodated consistent with
Section 30253 of the Coastal Act. Since the development agreement as
currently proposed does not assure that all identified potential significant
geological impacts are mitigated, or that the proposed entitlement may be
modified pursuant to future site specific studies, the development agreement
Is not in conformance with Section 30253 of the Coastal Act.
B. Habitat
1) Coastal Sage Scrub
Section 30240 of the Coastal Act states:
(a) Environmentally sensitive habitat areas shall be protected against
any significant disruption of habitat values, and only uses dependent on those
resources shall be allowed within those areas.
•(b) Development in areas adjacent to environmentally sensitive habitat
areas and parks and recreation areas shall be sited and designed to prevent
impacts which would significantly degrade those areas, and shall be compatible
with the continuance of those habitat and recreation areas.
A biology report was included as part of the project EIR. It is titled
Biological Assessment, Circulation Improvement S Open Space Agreement and is
dated May 13, 1992. The report was prepared by S. Gregory Nelson, consulting
biologist. The biological assessment studied each of the subject sites to
determine the type and amount of biological resources that exist at each site.
The biological assessment identified coastal sage scrub habitat on four of the
nine subject sites: Newporter North, Newporter Knit, Bayview Landing, and
Upper Castaways. Regarding this habitat type. the biological assessment
states:
"In addition to supporting a number of more common wildlife species, many
areas of coastal sage scrub, including those found at Newporter North:and
Bayview Landing, are habitat for the California gnatcatcher, which is a
candidate species for USFWS endangered status.•
• And regarding the California gnatcatcher, the assessment states:
'The California gnatcatcher (Polioptila californica) is a USFWS Category 2
Candidate. It occupies coastal sage scrub habitat dominated by California
sagebrush, and its numbers have declined dramatically because of habitat
loss and fragmentation associated with regional development. Its former
range extended from Ventura County south into Baja California, but is now
absent from Ventura and most of Los Angeles counties. Previously,
California gnatcatchers have been found in coastal sage scrub at other-
locations within the Upper Newport Bay (Marsh, 1990). Hore recently,
Pacific Southwest Biological Services, Inc. (1991) found a pair of
California ghatcatchers in coastal sage scrub at the fact of Vista del
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Newport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
,Page 10
Playa within the upper Newport Bay Regional Park. Based on a detailed
survey of potentially suitable habitat within the study area, California •
gnatcatchers are found to in habitat coastal sage scrub within Newporter
North and Bayview Landing. At Newporter North, a total of four pairs and
two lone males were observed. At Bay View landing, one lone male was
observed."
According to USFWS estimates. only about 7SO pairs of California gnatcatchers
are left in Orange County. Since the biological assessment was prepared, the
California gnatcatcher has.been officially listed by the United States Fish
and Wildlife Service as a threatened species. As a result of the listing, the
project is also subject to the Endangered Species Act (ESA). The Endangered
Species Act: (1) prohibits any federal agency from authorizing an activity
which would jeopardize the continued existence of a listed species; (2)
requires federal agencies to formally consult with USFWS if a project they
authorize "may affect" a listed species (Section 7 consultation); and (3)
prohibits "take" of a listed species unless formally authorized by USFWS.
This means that harming and harassing the bird or damaging its nesting grounds
is now prohibited without the approval of biologists at the USFWS. The
applicants will need to obtain imput and approval from the USFWS regarding any
impacts to the California gnatcatcher resulting from the project proposed
under the development agreement.
The biological assessment finds that significant adverse impacts to the •
coastal sage scrub habitat could occur at Newporter North, Newporter Knoll,
Bay View Landing and Upper Castaways. The biological study finds that the
degree of significant adverse impacts to the coastal sage scrub will depend on
the layout and facilities to be a part of the view parks and public
facilities, as well as possible bluff face stabilization /remediation work.
There is potential for coastal sage scrub to be directly lost to construction
and land use. This loss is an identified significant adverse impact.
The EIR proposes mitigation for the potential loss of habitat by requiring
that public areas be designed in such a manner as to be sensitive to the
resources, and also the possible preparation of additional environmental
documentation and mitigation in the future_ Additionally, proposed mitigation
includes limiting grading on the bluff to trail establishment and improvement
(at the top of the bluff), and erosion control or bluff stabilization.
Additionally, any disturbances to the coastal sage scrub habitat are proposed
to be mitigated by revegetating the area with coastal sage scrub species and
limiting the timing of non - emergency grading to the non- breeding season of the
gnatcatcher. These mitigation measures of the EIR have been incorporated into
the proposed development agreement in Sections 1..12, 4..2 and S..2.
However, the proposed mitigation measures do not demonstrate that the •
sensitive coastal sage scrub habitat will be adequately protected. The
proposed mitigation could allow, for example, bluff stabilization work that
would result in the destruction of the coastal sage habitat and require only
that it be rovegetated. No monitoring of the revegetation is proposed.
Revegetation of coastal sage scrub does not assure its.continuance and even if
successful can take as long as seven years to become established. In the
interim, the habitat is lost. Further. the recent listing of the California
gnatcatcher as threatened species requires consultation with the USFWS service
in conjunction with project proposals. This is not included as a mitigation
measure.
APR 06 '93 10 :51AM IRVINE PACIFIC P.12i30
0Newport Beach/Irvine Company 0
Circulation Improvements and Open Space
Development Agreement
page 11
•Since the likelihood and degree of bluff stabilization that the proposed
project would require has not been determined by site specific geological
investigation, all identified significant adverse impacts must be mitigated to
a level of insignificance in order for the proposed development agreement to
be consistent with Section 30240 of the Coastal Act. Alternatively, the
development agreement would have to allow for changes to the proposed amount
and/or location of entitlement described to assure protection of the sensitive
habitat. Significant adverse impacts have not been adequately mitigated nor
does the proposed development agreement allow for modifications to the
thatofhe proposed rdevelopmentfagreementeis.n t Therefore
in conformance Commission
30240 of the Coastal Act requiring protection of environmentally sensitive
habitat areas.
2) Freshwater Marsh
Section 30233 of the Coastal Act strongly limits fill of wetlands. The
diking, filling, or dredging of open coastal waters. wetlands, estuaries, and
-lakes is permitted only where there is no feasible less environmentally
damaging alternative, where feasible mitigation measures have been provided to
minimize adverse environmental effects, and if limited to one of the
•delineated allowable uses in Section 30233(a)(1) — (a)(e).
The biological assessment prepared for the subject sites identified freshwater
marsh on five of the nine sites: Upper Castaways, Jamboree/MacArthur, San
Diego Creek North, San Diego Creek South and Newporter North.
a) On the Upper Castaways site, a 0.e acre fresh water marsh exists along
Dover Drive. The fresh water marsh could be significantly impacted as a
result of the proposed widening of Dover Drive. Grading in the right of way
area for the widening is one of the Irvine Company's obligations under the
development agreement. The biological assessment finds this loss of wetland
area to be a significant adverse impact.
b) The entire 4.7 acre Jamboree /MacArthur site supports freshwater marsh.
This site is proposed for open space and limited public uses. Uses *allowed
may include; preservation, restoration, and creation of habitat and wetland
areas; ecological research; transportation uses including transportation
corridors, appurtenant facilities. arterial highways and vehicular access;
fuel modification zones; drainage and flood control facilities; off —site
directional signs; and any grading necessary for these permitted uses. The
biological assessment, regarding this site, finds:
•
*However, any recreation use beyond passive nature observation and study
may have significant adverse effects. depending on the level of
development and intensity of use.'
c) The San Diego Creek North site contains 0.72 acre of freshwater marsh.
0.48 acre of that is proposed to be developed with some types) of public
facility. 0.24 acre of existing freshwater marsh on site is proposed to be
preserved and enhanced. No setback for development is defined from the edge
of the proposed enhancement area. The biological assessment finds that the -
loss of 0.48 acre of freshwater marsh is compensated for by enhancement of the
marsh elsewhere on site.
APR 06 '93 10:52AM IRVINF PACIFIC • P.13i30
Newport Beach /Irvine Company
circulation Improvements and Open Space
Development Agreement
Page 12
d) On the San Diego Creek South site, 2.4 acres of wetland area exists .
adJacent to Bonita Creek. The 2.4 acres is proposed to be set aside as open
space. The rest of the site is proposed for residential development. The
biological assessment finds that any loss of wetlands here would be
significantly adverse.
e) The Newporter North site contains freshwater marsh. 0.1 acre of that
habitat type would be lost due to proposed development on site. The
biological assessment finds that the loss of this very small area is not
significant because of its.size.
The Coastal Act allows fill within wetlands, regardless of the amount, only
for very specific purposes. The development agreement as proposed does not
limit development of sites containing wetlands to the allowable uses defined
in Section 30233. In addition, Section 30233 requires that there be no
feasible less environmentally damaging alternatives available and that
mitigation measures must mitigate all adverse environmental impacts. Even if
the sites containing wetlands were limited to allowable uses, it must then be
demonstrated that there is no feasible, less environmentally damaging
alternative and that adequate mitigation is provided. The EIR and development
agreement only address mitigation without limiting development to the least
environmentally damaging alternative as required by Section 30233.
Therefore, the Commission cannot find that the proposed development agreement •
is consistent with Section 30233. The Commission finds that there may be
feasible, less environmentally damaging alternatives to some of the proposed
development that would not result in the loss of wetlands. For example,
impacts to the fresh water marsh on Newporter North can be avoided by creating
a second access way directly off Jamboree Road. This eliminates the need for
development in the freshwater marsh. Alternatively. the proposed development
agreement must allow for modifications to the location and /or amount
entitlement to avoid impacts to the wetlands. Therefore the Commission finds .
that the proposed development agreement is not consistent with Sections 30233
and 30240 of the Coastal Act regarding wetland and environmentally sensitive
habitat protection.
3. Cumulative Biolooical_Impact
The EIR itself acknowledges that an an incremental level, the overall
reduction in the general botanical and wildlife resources of the area through
habitat loss will result in a significant cumulative impact. These impacts
are considered significant, adverse, and unavoidable.
C. Public Access •
Section 30210 of the Coastal Act states:
In carrying out the requirement of Section 4 of Article % of the
California Constitution, maximum access, which shall be conspicuously
posted and recreational opportunities shall be provided for all the people
consistent with public safety needs and the need to protect public rights,
rights of private property owners, and natural resource areas from over
use.
Section 30252 of the coastal Act states, in part:
APR 06 '93 10 :53AM IRVINE PACIFIC P.14i30
Ikewport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
Page 13
• The location and amount of new development should maintain and enhance
public access to the coast by (S) providing adequate parking facilities or
providing substitute means of serving the development with public
transportation.
Two of the subject sites are proposed for substantial residential development
on bluff tops above Upper Newport Bay: Upper Castaways (151 units) and
Newporter North (212 units). These proposals include public bluff top parks,
but without any public parking. The planned community district regulations
proposed for each site and incorporated into the subject development agreement
would allow the streets of these proposed communities to be private. Also the.
planned community district regulations would allow these communities to be
gated. Additionally, exhibit F of the proposed development agreement
specifically states that: "the City will not require the Company to provide,
directly or indirectly, for parking related to public use of the conveyed
lands.'
A private community between the public road and the public bluff top parks
adversely impacts public access to the park. The Coastal Act requires that
maximum access to public recreational facilities be provided. Allowing the
communities to be gated and the streets to be private results in significantly
limiting public access.
• The public street adjacent to Upper Castaways, Dover Drive, is a major
arterial and does not allow parking on the street. The same is true of
Jamboree Road at the Newporter North site, Consequently, adequate parking for
the proposed parks cannot be provided by existing adjacent streets. Section
30252 of the Coastal Act requires proposed development to provide adequate
parking to support the development.
The public nature of the bluff top parks could prove to be meaningless without
any provision for public parking. The parks instead could become defacto
private parks for use of the adjacent residents rather than the general
public. The Commission has consistently found that provision of public
parking is necessary to ensure maximum public access. As proposed, to create
private streets between the public road (which does not allow parking) and the
park in conjunction with the proposed public parks, the development agreement
is inconsistent with-Section 30252 of the Coastal Act.
The communities, even if private and gated, could be designed to provide
public access and adequate public parking. However, the development agreement
provides no assurances that that will happen. As proposed, the planned
community texts, incorporated into the development agreement, are not
• consistent with Sections 30210 and 30252 of the Coastal Act. Because the-.
proposed development agreement could allow a private gated community to be^
developed that precludes public access to the public bluff top park. it-cannot
be found consistent with the public access policies of the Coastal Act.
Therefore, for the reasons described above, the Commission finds the proposed
development agreement inconsistent with Sections 30210 and 30252 of the
Coastal Act regarding public access.
r.
APR 06 '93 10 :53RN IRVINE PACIFIC P.15/30
Newport Beach /Irvine Company
Circulation Improvements and Open Space
Development Agreement
Page 14
As submitted, the development agreement is inconsistent with the Chapter 3
policies of the Coastal Actwith regard to minimizing hazards, protection of
environmentally sensitive habitat areas and thg provision of public access.
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