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HomeMy WebLinkAbout20 - Overriding OC Airport Land Use Commission's Determination of Inconsistency and Approving the Snug Harbor Surf Park at 3100 Irvine Avenue - Staff ReponseFarris, Jennifer Subject: RE: Proposed Project /Newport Beach Golf Course From: Jurjis, Seimone <slurlis@newportbeachca.gov> Sent: October 25, 2025 6:22 PM To: Thomas Edwards <newportlawyer@hotmail.com> Cc: Murillo, Jaime <JMurillo@newportbeachca.gov> Subject: Re: Proposed Project /Newport Beach Golf Course Hi Thomas, We drafted a response to your questions. Please see attached. Have a great weekend. Seimone From: Thomas Edwards <newportlawyer@hotmail.com> Date: Tuesday, October 21, 2025 at 9:06 AM To: Dept - City Council<CityCouncil@newportbeachca.gov> Subject: Proposed Project /Newport Beach Golf Course Received After Agenda Printed October 28, 2025 Agenda Item No. 20 I[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Report phish using the Phish Alert Button above. Please see the attached comments. Thank you. Thomas C. Edwards Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney -client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail and destroy the original transmission and its attachments without reading or saving in any manner. **DISCLAIMER** Treasury Department Circular 230 Disclosure: To ensure compliance with requirements imposed by the Treasury Department, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Response to Thomas Edwards Comments 1. Violation of NBMC Section 21.90.030 a. Claim: Project fails to demonstrate compliance with Purpose and Intent of SP-7 (OSR) District and removal of three holds with project would expediate demise of the Newport beach Golf Course. b. Response: i. The draft resolutions include facts in support of findings, including findings that the development is allowed within the zoning district. ii. Specifically, Fact 2 in Support of Finding A acknowledges the purpose and intent of the SP-7/OSR District is to ensure the long-term use and viability of the Golf Course. Furthermore, it finds that the Project is not designed to replace the entirety of the Golf Course's operations, rather it includes components that will continue to support golf operations on the northern and southern portions. It will further introduce additional revenue generating activities and ancillary uses helping to ensure the future viability of the Golf Course. 2. Charter Section 423 a. Claim: Project is subject to Charter Section 423 and requires a vote. b. Response: i. The staff report and draft resolution for the General Plan Amendment clearly explain compliance with Charter Section 423. ii. Charter Section 423 requires votes for General Plan amendments seeking to increase the allowed nonresidential intensity of a site by 40,000 square feet or more; the project request an amendment to increase allowed intensity by 39,722 square feet, which is below the thresholds. 3. ALUC Override a. Claim: Project does not include factual basis for ALUC override. b. Response: i. The staff report and draft resolution for the ALUC override include factual basis supporting the override. Specifically, the resolution includes detailed facts supporting the override and the project's consistency with the JWA Airport Environs Land Use Plan (AELUP). ii. The Federal Aviation Administration ("FAA") has the sole responsibility for studying and determining airspace hazards. On May 6, 2025, the FAA issued a Determination of No Hazard for Air Navigation. 4. Hours of Operation and Noise a. Claim: Inconsistent hours of operation described and noise associated with "wave machine" never addressed. b. Response: i. The staff report and environmental impact report (EIR) consistently describe proposed hours of operation as 6am-11 pm. ii. The EIR includes detailed noise analysis for the project (Draft EIR Appendix Q) calculating the operation noise levels of the project, including operation of the wave machine and found noise impacts to be within City standards and impacts to be less than significant. Recommended Revisions to Conditions 1. Reduce hours of operation. i. Response: Analysis supports proposed hours of operation (6am- 11 pm) can operate without causing significant noise impacts and comply with City noise standards. Conditions included restricting outdoor loud speakers to 10pm. 2. Completion/ Restoration Bond. i. Response: The City does not have a program in place to require payment of restoration bonds for completion of projects, nor is this common practice in the city. Establishing project specific fees as a condition of approval would be subject to scrutiny, and must be based demonstrated rough proportionality and nexus. 3. Indemnification i. Response: The project includes Condition no. 38 requiring and strong indemnification provision. 4. Enforce Longevity of Golf Course i. Response: See response to Claim 1 above. 5. Bonding/ Indemnification for water well contamination i. Response: See response to Recommendation 2 and 3 above. 6. Require a vote i. Response: See response to Claim 2 above. Public vote not required. E P I D SOLLITIONS,INC WHERE EXPERIENCE AND PASSION MEET Date: October 28, 2025 Prepared by: Renee Escario and Brady Connolly To: Joselyn Perez, JPerez@newportbeachca.gov Site: Snug Harbor Surf Park Project Subject: Responses to Environmental Comments Received Prior to City Council Hearing This memo contains responses to a comment letter related to the Environmental Impact Report (EIR) that the City of Newport Beach received in response to the notice of the City Council Hearing for the proposed Project of October 28, 2025. This comment was received after the close of the Draft EIR public review period (May 23, 2025 through July 7, 2025). Under CEQA, a lead agency is required to consider comments on the Draft EIR and to prepare written responses, if a comment is received within the public comment period (Pub. Resources Code, § 21091, subd. (d); CEQA Guidelines, § 15088.). When a comment letter is received after the close of the public comment period, however, a lead agency does not have an obligation to respond (Pub. Resources Code, § 21091, subd. (d)(1); Pub. Resources Code, § 21092.5, subd. (c)("Nothing in this section requires the lead agency to respond to comments not received within the comment periods specified in this division, to reopen comment periods, or to delay acting on a negative declaration or environmental impact report.").) Although a lead agency is not required to respond to late comments, it may choose to do so (Gray V. County of Madera (2008) 167 Cal. App. 4th 1099, 1 1 10 (Gray), citing Pub. Resources Code, § 21091, subd. (d)(1); CEQA Guidelines, § 15088; Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 925, fn. 10 (Gilroy Citizens).) The City of Newport Beach has elected to prepare the following written responses to comment received after the 45-day public comment period for the Draft EIR ended (July 7, 2025) that include environmental issues of concern with the intent of conducting a comprehensive and meaningful evaluation of potential environmental impacts of the proposed Project. The number designations in the responses are correlated to the bracketed and numbered portions of the comment letter. As further detailed in the individual responses to comments below, none of the comments result in identification of any substantial increases in the severity of any previously identified environmental impacts that would not be mitigated, or that there would be any of the other circumstances requiring recirculation as described in CEQA Guidelines Section 15088.5. No new environmental impacts would result from the Project or from a new mitigation measure proposed to be implemented, there is no substantial increase in the severity of an environmental impact, no feasible project alternative that would reduce potential impacts, or mitigation measures considerably different from others previously analyzed that would lessen the environmental impacts of the proposed Project, and the EIR is not fundamentally inadequate and conclusory in nature. Letter CC2: Jim Mosher (2 pages) Late Comment Letter October 28, 2025, City Council agenda comments - Jim Mosher Page 5 of 6 Item 19. Ordinance No. 2025-34: Extending a Temporary Moratorium on New Smoke Shops and Tobacco Retailer Businesses As I pointed out when the moratorium began on September 23, while the urgency ordinance title refers to a moratorium on "smoke shops," it actually bans new or expanded "tobacco retailer businesses," and the definition it provides of the latter (see page 19-17 of the staff report) is so broad as to encompass any person who sells or gives away any "tobacco -related item." To my mind, that would not only include many businesses I would not think of as "smoke shops," but even a person or business providing nicotine cessation products or information. As to the 10-day report, it does explain what staff is doing and hopes to do, but I'm not sure it explains what calamity would befall the City in the absence of the moratorium. Does it have a backlog of smoke shop applications? However that may be, on the first page of the report (page 19-11 of the staff report), numbered paragraphs 1 and 3 refer to an "internal -departmental team." I'm not sure what that means: internal to which department? Or was that intended to read "inter -departmental? Similarly, numbered paragraph 4 refers to a list of businesses and "any potential police activity associated with that business' (which seems to refer to possible future activity). Was that intended to read "any police activity potentially associated with that business' (referring to past police activity, possibly not originally associated with the business). Item 20. Resolution Nos. 2025-71 through 2025-74: Overriding Orange County Airport Land Use Commission's Determination of Inconsistency and Approving the Snug Harbor Sun` Park at 3100 Irvine Avenue (PA2024-0069) I see from Attachment J that as of the posting of the staff report on October 23, the City had received 1,877 pages of correspondence' (to which 3 have since been added to the start), mostly opposed to the Council approving the application. I doubt I can add much to that, but I would hope the volume of opposition might give the Council pause as to finding the proposal compatible with community character and expectations. I would hope the Council might also consider the opposition not only from the County Airport Land Use Commission (Attachment Kl but also from the Airport administration, which constitutes a separate and independent entity whose cooperation residents need on airport issues, and with whom I've recently heard the City and Council see themselves as partners with, working towards mutual goals. Approving something they clearly do not want would not seem to foster that new spirit of friendship and cooperation. CC2.1 As indicated in my letter to the Planning Commission, I don't think the proposal is consistent with either the property's "PR" (Parks and Recreation) designation in the Land Use Element of our General Plan or its "OSR" (Open Space and Recreation District) zoning of the Specific Plan found CC2.2 in NBMC Section 20.90.050. While many of its parts are consistent with "PR," the retail shops and overnight visitor accommodations are not. They make it more of a resort destination like the ' I cannot find in Attachment J the comments I submitted to the Planning Commission on September 3 for their September 4 hearing, and I suspect others may not be included, as well. Mine may have been separately filed somewhere as "late comments" on the EIR. They do appear in the massive Planning Commission Item 2 file at the preceding link, October 28, 2025, City Council agenda comments - Jim Mosher Page 6 of 6 Pelican Hills where the golf course is on land designated "PR," while the accommodations and other amenities are on land designated "CV" (Visitor Serving Commercial). None of this land is designated for CV uses. Similarly, within the universe of Parks and Recreations, the OSR zoning restricts this site, if developed for recreation, to outdoor recreation. Even of the proposed recreational uses, some of those fail that test. The proposed fitness center somewhere within the proposed roughly 80,000 square feet of indoor floor area is clearly an example of indoor recreation. And again, overnight accommodations are not recreational at all. As to the EIR, as previously commented to the Planning Commission, it does not inspire confidence. As a somewhat random example, those concerned about water use and looking to Appendix S (Water Supply Evaluation) will read on page 4 that "total demand is expected to be approximately 85-acre feet per year," and that after removing the existing use of 1.56 AFY, one will have a "net increase in potable water use of about 87 AFY" Not only is it later explained that the uses to be replaced consume more than 1.56 AFY, but how can eliminating them lead to a larger rather than a smaller net increase? Further in, one is at a loss to figure out who will be supplying the water. It seems mostly to suggest (probably mostly correctly) that the City's Utilities Department will be the supplier, without explaining why the City's Urban Water Management Plan, which it refers to repeatedly, contains a service area map indicating the golf course is in an area served by the Irvine Ranch Water District, and compounds the confusion by referring to IRWD demand data As to Appendix Q (Noise Analysis), as chair of the GPAC Noise Element Subcommittee, but commenting as an individual, its application of the City of Newport Beach standards of significant noise increases appears to be incorrect. I am particularly concerned about the impact on nearby residents, such as those on Anniversary Lane or in West Santa Ana Heights in the proposed hours of operation before 7 a.m. (8 a.m. on Sunday) and after 10 p.m., when those areas enjoy relief from airport noise. Tables 8-5 and 8-6 assume "Increase Criteria" in decibels taken from a General Plan table of significant increases in Community Noise Equivalent Levels and incorrectly applied here to readings that are not CN EL's. Put simply, the analysis is wrong and the possibility of residents losing two hours of quiet on Sunday mornings (and one hour after 10 p.m. each night) should be of great concern. CC2.2 Cont. CC2.3 CC2.4 Response to Letter CC2: Jim Mosher, dated October 28, 2025 Response CC2.1: On September 9, 2025, the Newport Beach City Council adopted Resolution No. 2025- 60, Notice of Intent to Override Orange County Airport Land Use Commission (ALUC) Determination of Inconsistency for the Snug Harbor Surf Park Project. The resolution provided notice to the ALUC and State Department of Transportation, Aeronautics Program of the City' s intention to find that the Surf Park Project is consistent with the purposes of the State Aeronautics Act and overrule ALUC's determination that the Project is inconsistent with the 2008 John Wayne Airport Environs Land Use Plan. The ALUC's determination was based in part on incorrect Project capacity information, which has since been clarified with the ALUC. In addition, as detailed in Draft EIR details in Section 5.8, Hazards and Hazardous Materials, pages 5.8-15 and 5.8-40 that the Project site has previously undergone FAA evaluation, which determined that structures on the site that are below 162 feet amsl would not have a significant adverse impact related to aeronautical hazards. Thus, the FAA has not blocked development within the Project site. Response CC2.2: As discussed in Final EIR Master Response 2: Loss of Existing Golf Course Use, and in Draft EIR Section 3.0, Project Description, the Project site has a General Plan Land Use designation of Parks and Recreation, which is intended to provide for a variety of both active and passive uses, including: golf courses, marina support facilities, tennis clubs and courts, private recreation, and similar facilities. The Project site is zoned for Open Space and Recreation by the Santa Ana Heights Specific Plan which, subject to a use permit, allows for outdoor commercial recreation. The proposed Project is consistent with the intended uses for the site within the City's General Plan and the Santa Ana Heights Specific Plan, as detailed in Draft EIR Section 5.10, Land Use and Planning. The proposed Project would support the remaining 15-hole golf course and facilitate continued golf by providing parking and a check -in station (starter) on the Project site, golf cart storage within the basement level of the Project's proposed clubhouse building, and maintenance of connection between all golf holes for a 15-hole golf track. Thus, although reduced, golf recreation would continue to be provided to the north and south of the Project and supported by the Project. There are many examples of successful golf courses that provide less than 18 holes, including Gable Sands (Quicksand) Course (13 holes), Brandon Preserve (13 holes), Gravel Pit (13 holes), Gilroy Golf Course (1 1 holes), Monarch Dunes Golf Club (12 holes), and Woodside Golf Course (12 holes), among others. These courses have succeeded with less than the traditional 18 holes, reflecting (a) a continued desire to play even with a non-standard number of holes, and (b) that a lesser number of holes provides a golfing experience that can be accommodated on a shorter schedule (requiring less time to complete a round). Draft EIR page 5.10-21 details the permitted uses and development standards of the SP-7 (OSR) designation and Draft EIR page 5.10-22 details the Project sites designation as OSR. Additionally, the OSR designation is detailed in Draft EIR Section 5.1, Aesthetics, on pages 5.1-5 and 5.1-15 through 5.1-16 pages. Draft EIR Table 5.1-1 provides a comparison of the Project consistency with the applicable Santa Ana Heights Specific Plan development standards. As detailed, the Project would be consistent with the building site area, building setbacks, and the proposed building heights would be consistent with a Conditional Use Permit. Response CC2.3: The commenter is correct that the 85 AFY in Project water demand is incorrect. Table 9 within Appendix S shows the correct existing and proposed water demands. The existing site demands approximately 1.56 AFY of potable water within the onsite pro shop, clubhouse, and restaurant uses, and the proposed Project would demand approximately 88.54 AFY of potable water, resulting in a net increase of approximately 87 AFY, as detailed in Draft EIR Section 5.16, Utilities and Service Systems in Table 5.16-9. Response CC1.4: The commenter is stating that a General Plan table identifies increase criteria in Community Noise Equivalent Levels (CNEL), which is the average A -weighted noise level during a 24-hour day, and that the Noise Analysis in the appendix of the EIR applies noise levels in dBA leq, which is the average sound level over an hour to identify if a significant ambient noise increase would occur. As 4 detailed on page 5.1 1-26 of the Draft EIR, to describe the operational noise level increase, the Project operational noise levels are combined with the existing ambient noise level measurements. The difference between the combined Project and ambient noise levels describes the Project noise level increase to the existing ambient noise environment. Draft EIR Table 5.1 1-12 and Table 5.1 1-1 3 identifies that the Project would generate daytime operational noise level increases ranging from less than 0.1 to 0.8 dBA Leq and nighttime noise level increases ranging from less than 0.1 to 2.0 dBA Leq at the nearby receiver locations, which are less than the thresholds. As detailed on page 5.1 1-2 of the Draft EIR, a 3-dBA change in noise levels is considered to be a barely perceivable difference. Thus, the highest change of 2.0 dBA would be less than perceivable.