Loading...
HomeMy WebLinkAbout07/23/2012 - Special MeetingCity Council Minutes City Council Special Meeting July 23, 2012 — 6:00 p.m. I. ROLL CALL - 5:00 p.m Present: Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn Excused: Council Member Hill, Council Member Daigle II. PUBLIC COMMENTS REGARDING CLOSED SESSION Jim Mosher suggested that the most prudent response to the item under Closed Session would be to try to avoid a lawsuit by re- circulating the Newport Banning Ranch Environmental Impact Report (EIR) and making the necessary corrections wherever possible. He believed that many of the public comments, were not responded to appropriately and urged Council to take its time to ensure that if a lawsuit arises, the City can win it. Patricia Barnes, Sierra Club, commented on the Closed Session item, indicated that she did not mention she was the Chair of the Orange County Sierra Club since there is no such group, and noted that she did not make a statement regarding a lawsuit in any form, implied or expressed. She reiterated the position of the Sierra Club in conjunction with the Banning Ranch Conservancy that Newport Banning Ranch must remain open space since it is the preferred option in the voter - approved General Plan. Further, the Sierra Club is strongly opposed to the certification of the EIR and asserts that the DEIR is inadequate and does not meet the requirements of a satisfactory EIR per the California Environmental Quality Act (CEQA). She urged Council to consider re- circulation of the EIR. Steve Ray, Executive Director of the Banning Ranch Conservancy, stated his organization's support of Ms. Barnes' comments, noting that there was nothing to indicate any threat, potential threat, expressed or implied of any litigation by her or any representative of the Sierra Club. He contended that to go into Closed Session for an item that is not valid, would not be proper or appropriate. City Attorney Harp reported that at the June 21, 2012 Planning Commission meeting, Ms. Barnes identified herself as the current Chair of the Orange County Sierra Club, Orange County Group, Angeles Chapter, and that the Sierra Club would challenge any certification of the EIR. He stated that this is adequate threat of litigation and that Council is free to meet in Closed Session. Mayor Gardner added that the City Attorney is very stringent about the Brown Act and promptly stops Council if they stray from issues Lmder consideration. III. CLOSED SESSION - 5:11 p.m. A. CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION - SIGNIFICANT EXPOSURE TO LITIGATION (Government Code § 54956.9(b)): 1 potential case Volume 60 - Page 532 City of Newport Beach City Council Minutes July 23, 2012 1. There is a significant exposure to litigation based on a statement made at a public meeting on June 21, 2012 by Patricia Barnes, Chairperson of the Orange County Sierra Club threatening litigation on a specific matter within the responsibility of the legislative body (Section 54956.9(b)(3)(D). IV. RECESS V. RECONVENED AT 6:00 P.M. FOR SPECIAL MEETING VI. ROLL CALL Present: Council Member Rosansky, Mayor Selich, Council Member Henn, Council Member Excused: Council Member Hill VII. CLOSED SESSION REPORT - None Pro Tern Curry, Mayor Gardner, Council Member Daigle VIII. PLEDGE OF ALLEGIANCE - Council Member Daigle IX. NOTICE TO THE PUBLIC X. PUBLIC COMMENTS Jim Mosher addressed the way the Charter Amendments will be presented to the voters for the November ballot. He expressed concerns that 37 proposed revisions to the existing Charter are being grouped together into a single measure after brief consideration, as well as the addition of a provision related to red light cameras. XI. PUBLIC HEARING 1. NEWPORT BANNING RANCH - A PROPOSED 401 -ACRE PLANNED COMMUNITY GENERALLY LOCATED NORTH OF WEST COAST HIGHWAY, SOUTH OF 19TH STREET, AND EAST OF THE SANTA ANA RIVER (PA2008 -114). Mayor Gardner explained the hearing process, stating that the public will have three minutes each to provide comments. She asked that anyone having a PowerPoint presentation provide it to staff prior to speaking and asked that signs not block cameras or other speakers, and that they be taken down after speaking. Planning Manager Alford presented a PowerPoint presentation to display the site location and surrounding properties; provide an overview of the project; detail the application, background, and CEQA review; discuss the Planning Commission study sessions and public hearings; highlight the 1988 General Plan Land Use Element regarding the subject site, the 2000 Taylor Woodrow Plan, a plan comparison and key differences; and reviewed policies within the current General Plan, policy implementation, the alternative use policy under the General Plan, and policies setting development limits for residential, retail commercial and overnight accommodation uses. He presented details of the EIR, including topics studied, project alternatives, significant unavoidable impacts and the certification process. He noted that the consultant team who prepared the EIR are available to respond to questions. Planning Manager Alford presented details about the elements of the application, including Volume 60 - Page 533 City of Newport Beach City Council Minutes July 23, 2012 the General Plan Amendment relative to the Circulation Element amending the Master Plan of Streets and Highways, land use development and the Planned Community Development Plan, Master Development Plan QVIDP), MDP authorized activities, site development review, the establishment of Land Use Districts, oil operations and remediation, consolidation of oil operations, and open space preserve and parklands. He addressed the Master Trails and Coastal Access Plan, pedestrian bridge, Affordable Housing Implementation Plan (-AHIP), the Development Agreement, and next steps. Mayor Gardner asked that someone address water quality testing for selenium and the effects of the pedestrian bridge on traffic before the meeting's end. In response to Council Member Daigle's questions, Planning Manager Alford reported that there is precedence for Master Coastal Development Permit (MCDP) applications, noted that the Coastal. Commission has recognized a comprehensive approval for large -scale projects, and indicated that this would be a Coastal Development Plan which will be sent to the Coastal Commission. He also indicated that the issue regarding the legal status of having conducted disturbances on the site has been adequately documented and noted that the issue of grassland sources were addressed in the report. Council Member Daigle expressed the opinion that the Development Agreement was well negotiated. Mike Mohler, Newport Banning Ranch, thanked staff for all of their work and effort on this project, as well as Council. He provided a PowerPoint presentation addressing the General Plan provision:, details of the alternatives, the planning process, existing conditions, oil operation impacts, engagement with the Banning Ranch Conservancy and a related willing buyer letter, formation of the Newport Banning Land Trust, reduction of the oil operation footprint, open space, parks and trails, public use areas, zoning districts, villages and colonies, and roadways. He reported that the 19th Street Bridge has never been or is now a part of the project and addressed open space regional context, the Development Agreement, and Public Benefits. Regarding the errata comment in the PC Text which was included by the Planning Commission, he stated that Newport Banning Ranch would like to see the hotel site held off the market for two years following the effective date of the Development Agreement, and requested that the errata be removed from the PC Text and allow the free market to dictate the feasibility of the use. In response to Mayor Gardner's questions, Mr. Mohler reported that the EIR requires sound attenuation for Newport Crest and Bluff Road, and that a sound wall would not obstruct views. Regarding public transportation, he reported that there is currently a bus stop near the proposed pedestrian bridge and that they are conferring through the Orange County Transportation Authority (OCTA) process to find out what bus stops would be ideal within the project. As far as the height of the proposed buildings, he stated that the 45 -foot height of some of the buildings is the maximum height of the architectural elements and noted that they wanted the flexibility to design some of the housing as two- stories with some three -story elements. He indicated that the ratio set on grasslands is an industry standard. He also addressed adaptability for solar use and discussed the difference between interpretive trails and others within the alternatives. Steve Ray, Executive Director of the Banning Ranch Conservancy, thanked staff and Council Members for allowing them to make a presentation. He expressed the opinion that the hearing may be in violation of Brown Act due to the notice that was mailed, believing that it inferred that the City has already predetermined its decision regarding the EIR. He reported that public resource agencies are requiring that the vegetation on the site be remapped because they determined that the maps used in the EIR are inaccurate. He believed that this Volume 60 - Page 534 City of Newport Beach City Council Minutes July 23, 2012 is a significant issue that requires review prior to acceptance of the EIR, as well as other issues including identification of vernal pools, ephemeral wetlands, and habitats for the San Diego Fairy Shrimp. He addressed the 19th Street Bridge, noting that the traffic studies assume the bridge. He believed that traffic circulation studies must be performed and should include the entrance off of Pacific Coast Highway. He reported there have been two Notices of Violation (NOVs) from the Coastal Commission, one of which has been resolved and the other regarding mowing and destruction of Environmentally Sensitive Habitat Areas (ESHA), believing that all the sites would need to be reviewed and the EIR re- circulated. He referenced State laws and the City's Land Use Plan regarding abiding by the California Coastal Act. He believed that comments from the Coastal Commission are dismissed within the EIR and responses to comments, reported that the EIR identifies the area as potential pocket mouse habitat but that CEQA exempts conclusive statements to be provided without supporting facts, questioned the City's commitment to maintaining the area as open space, and addressed his organization's vision for the property including oil operations remediation and parks. He noted the organization has an acquisition plan which is pursuing Federal and State funds, as well as private donations, and announced that the Banning Ranch Conservancy has received a $5 million commitment from a Newport Beach resident to help toward the purchase of the property. City Attorney Harp reported that the Brown Act requires a description of what will be considered and that the agenda merely reflects what Council. will be considering and includes staff recommendations. He indicated that he did not believe Council has made decisions regarding the issue at this time. Mayor Gardner opened the public hearing. Dwight Belden addressed the economic benefits of the project, especially in terms of active parks, and referenced previous actions by Council regarding the site. He stressed the importance of restoring the habitat and mitigating for au- quality and noise reduction. Lesley Rosenthal referenced findings from Todd Brody, an environmental consultant retained by a group of concerned Newport Beach residents to review the EIR. She presented results of the report relative to the model used by BonTerra for air quality and Mr. Brody's opinion that the study should be redone using a more current model. She reported that at a previous Planning Commission meeting, Jim Kurtz, Director of Air Quality and Noise for BonTerra Consulting, dismissed Mr. Brody's comments and addressed the various models used in air quality studies; however, reported that the new model is now being discussed on the BonTerra website. Don Beatty referenced an article from the Orange County Register and asked that Council order the land operators and owners to clean -up the property and give it back to the people. Ginny Lombardi, Vice President of the Newport Crest Homeowners' Board of Directors, noted that the they submitted a report from Environmental Consultant Todd Brody from Synect Ecology and a letter for Council's review regarding the matter. She stated that the report reveals major discrepancies within the EIR regarding air quality and noise. She encouraged Council to read the report, believed that the mitigation measures within the EIR are based on misleading data and interpretations. She requested fact -based responses to the report, and recommended re- circulation of the EIR. Reed Royalty, Immediate Past President of the Orange County Taxpayers' Association, spoke in support of the project, noting the benefits to Newport Beach taxpayers and stated that taxpayers cannot afford to make the necessary improvements being proposed by the developer and that the project would provide jobs, as well as other benefits. Volume 60 - Page 535 City of Newport Beach City Council Minutes July 23, 2012 Sharon Boles, Newport Crest Homeowners' Board of Directors, addressed the length of construction and related noise and air quality impacts. She asked Council to conduct a complete review of the EIR and consider impacts to residents. Jim Helfrich expressed support for the project and urged Council to vote for its approval. He believed that it is time to act and that the project balances smart growth and invigorates the land. Kate Khmow, Vice President of Government Affairs with the Orange County Business Council, addressed their core initiatives and expressed support for the project. She referenced costs to remediate the land and addressed infrastructure improvements, new housing, tax creation and benefits to businesses, and public benefits. Alison Schweitzer expressed support for the project noting that is will create additional housing, remediation of oil operations, and open space. She spoke in support of the developer, noting that she is a homeowner in one of their projects. Bryan Starr, Building Industry Association of Orange County, expressed support for the project, noting that it will generate approximately 4,025 jobs. He addressed public benefit fees, as well as benefits to schools. Leonard Davis, Newport Crest resident, stated that the current conditions are not unsightly but believed that it is a pleasant place and asked Council to consider how the homeowners in the area will feel with 14 -years of construction going on next door. Bill Yardley expressed support for the project and believed that the development will help continue improvements and give the City balance. He commented on the importance of parks and how this development will address the issue. Chip Stassell expressed support for the proposed use and the application, and urged Council to approve the application. Darrel Ferguson, Vice President of the Newport Beach Chapter of the Surfrider Foundation, reported that the organization supports environmentally sensitive plans that maximize open space, improve water quality, cleans polluted runoff, and protects natural and sensitive habitat and species. He stated that such a plan must address existing conditions of concern, including untreated urban runoff, destabilized bluffs, existing mineral rights of oil companies, appropriate assessments, and oil operation clean -up. He expressed concern with the current plan as it relates to roads on the property, noting they would carry additional pollutants and untreated urban runoff to the ocean and local beaches. He also addressed the EIR and noted that Alternative B is Surfrider's preferred plan. He referenced written comments submitted by Surfrider and noted that no response has been received. Todd Golper expressed support for the project, especially as it relates to the proposed parks. He urged Council to vote in favor of the project. James Quigg reported on an email that he sent to staff expressing his concerns regarding the project being built on an earthquake fault zone and reported that he has received no response. Dr. Mikel Hogan expressed concerns with traffic and related air pollution and noise, believed that the City's responses are inadequate and do not provide facts, spoke in opposition to the project, and urged Council to vote against certification of the EIR. Volume 60 - Page 536 City of Newport Beach City Council Minutes July 23, 2012 Patricia Barnes, Chain of the Orange County Group of the Sierra Club, Angeles Chapter, referenced comments made by members of the public and the Banning Ranch Conservancy on June 21, 2012, which challenged the potential certification of the EIR and addressed omissions of significant data. She addressed the Sierra Club's mission and the need for evaluation of the eco- systems in the area. She urged Council to deny certification of the EIR, believing that it is inadequate and significantly flawed. She also asked that it be re- circulated and provided information regarding the intended use of the word "challenge ". Bobby Hatfield expressed support for open space, but believed that it does not define the current project. He spoke in support of the project specifically as it relates to the proposed parks. Gary Reisner indicated that he is not against development; however, he is against bad development and believed that the area is salt marsh. He expressed opposition to the dust resulting from grading of the development and the length of time for construction. Don Funk reported that he is familiar with the property and believed that the wildlife has not been characterized correctly. He expressed concern with the loss of open space, noting that it will be for a short -term gain, and urged Council to consider the Banning Ranch Conservancy plan. Mark Tabbert commented on Council's intent to approve the project and believed that the public's wish for open space was never Council's wish. He acknowledged civic leaders difficult job and expressed his vision for Newport Beach as it relates to environmental issues. Megan Lulow expressed opposition for the development and believed that it would be more valuable to the City and its resident to preserve the area in its natural state. Noting the monetary benefits to the City, Elaine Linhoff suggested that the City cut down on spending if it is need of revenue and leave the area as open space. She addressed traffic impacts from the development and the priority in the General Plan to save Banning Ranch. Gus Ayre dedicated his comments to the memory of Jan Vandersloot and commented on the uniqueness of Banning Ranch due to its habitat, vernal pools, animals, and the potential for restoration of the area. He expressed the opinion that the Coastal Commission will not allow development of Bluff Road, believed that Council has ignored the Coastal Commission's comments, and encouraged Council to deny the EIR. June Palomino addressed the findings in Todd Brody's report relative to the health risk analysis of the area, believed that the EIR fails to include the correct number of daily truck - haul trips, and urged Council to deny the EIR and re- circulate it. Mary Lynn Gaddis expressed support for the proposed development, especially due to the much needed sports fields, noted that the area is currently polluted, and requested that Council approve the project. Suzanne Forster expressed opposition to the project, noting that it sits on a major earthquake fault; addressed landslides and liquefaction; reported that the soil has high methane levels, discussed the affects of chemical toxins on the human body; stated that the level of toxins is currently unknown because there has been no soil or water tests for over a decade and no radiation surveys have been done; reported that the Orange County Fire Authority (OCFA) states that no homes should be built over existing oil wells; presented a map of the Master Development Plan with a map of historic oil operations; and encouraged Council to preserve and remediate Banning Ranch as open space. Volume 60 - Page 537 City of Newport Beach City Council Minutes July 23, 2012 Steven Burris noted that the issue is ultimately about quality of life, addressed increased traffic and noise as a result of the development, and urged Council to preserve Banning Ranch as open space. Jordi Salomon expressed support for the Banning Ranch Conservancy, addressed the findings of Todd Brody's report relative to au quality and daily construction - related emissions, noted that artificially extending the construction period has the effect of reducing daily emissions, thereby, grossly understating them, and urged Council to reassess the EIR and not support the development. Clay Tucker addressed the need for open fields for youth sports, expressed support for the project, and urged Council to approve the EIR. Keith Banning commented on his experience as a Little League coach; expressed support for the development, specifically since it provides playing fields for youth sports; reported touring the area; believed that the proposed development will be a benefit to the community, especially since taxpayers will not have to pay for the improvements, and urged Council to approve the project and the EIR. Somer Reynolds reported that she works for property owners in Newport Beach and surrounding areas, expressed support for the Banning Ranch project, commented on the benefits of the project and related increases to property values and quality of life, and urged Council to approve the project. Christopher Danks expressed support for the proposed development and addressed the balance between development and environmentally conscientious open space. Brad Lisotto addressed ocean water quality and expressed support for the proposed development. Christina Darks expressed support for the proposed development, believed that it is a win - win for the community, and noted that the developer is willing to pay for the improvements and keep 75% of the area as open space for families in the region. Dr. William Yarihim spoke about the uniqueness of the area, expressed support for maintaining open space, and urged Council to do the right thing. Sheila Kaplan expressed the opinion that this is not a good project for Costa Mesa and would permanently degrade the quality of life due to the resulting traffic, noise, and.pollution. She noted that the developers have demanded that the City of Costa Mesa not oppose the project and read a letter on behalf of the Banning Ranch Conservancy which included an overview of the issues raised by Coastal Commission staff. Tevis Hill addressed noise impacts related to the project, as well as impacts to the wildlife, presented slides of some of the existing wildlife, stated that the proposed mitigation measures are not enough and that there are no facts to justify the long periods of construction, believed that the City has underestimated the impacts of the project to communities and wildlife, and urged Council to re- circulate the EIR. Robert Sebert commented on his experience with a similar development, expressed concern with delays., and urged against development of the site. Vincent Philippi presented slides of the area, including examples of nesting birds; discussed Volume 60 - Page 538 City of Newport Beach City Council Minutes July 23, 2012 the impacts of runoff; and encouraged Council to allow further research on the area and vote against the project. Robyn Vettraino, Architect, Sustainability Consultant, and Executive Director of the Newport Banning Land Trust, reported on the progress of the Trust since its establishment, including having a third -party review through Surfrider Foundation National to assure water quality improvements, public beach access through transformation, and the desire to provide ocean - friendly gardens. She addressed collaboration with a biologist and other agencies for restoration of the site. Bruce Bartram referenced provisions of the General Plan regarding conserving open space and acquisition of the property; addressed other policies related to Banning Ranch; discussed coordination with State and Federal agencies to identify wetlands and habitats, and restore the property; referenced notices of violation of the Coastal Act regarding obtaining a development permit and asking to stop unpermitted development activity on the subject site; and addressed comments by the Coastal Commission regarding mowing on the property and the correct boundaries for this area. He believed that if Council certifies the EIR knowing the Coastal Commission's objection to its accuracy and ongoing regulatory action, Council will be violating its own General Plan. Mike McFadden reported living in one of the communities built by the developers and spoke in support of the developers and their quality of work. He indicated that he met with them on several occasions and expressed support for the development plans. Marinka Horack presented a photograph of the area and expressed the opinion that no additional houses, traffic, or pollution is needed. She reported living near a dump site and there have been reports of clusters of cancer, Parkinson's disease, and other neurological diseases among the residents. She suggested that the oil companies clean up the area, urged Council to consider the matter carefully, expressed opposition to developing the property, and addressed the number of vernal pools existing on the site. Billy Stage agreed that the property needs to be cleaned up and restored, and spoke in support of the project. Gary Itano expressed opposition for the project and read a statement from Coastal Commission's staff regarding failure by the consultants to conduct surveys on all of the vernal pools existing on the site. He expressed the opinion that the authors of the EIR intentionally failed to survey all of the vernal pools and described them as oil field features. Shirley Siglin commented on the negative impacts of the development due to increased traffic, noise, and pollution. Lynn Friedman expressed support for retaining open space in Banning Ranch; read a statement from Coastal Commission's staff that addressed San Diego Fairy Shrimp existing in the vernal pools, believing that a Fairy Shrimp survey should be conducted on all of the vernal pools in the area; and encouraged Council to deny the project. Paul Gracey expressed opposition to the development plan and believed that the project will eventually need the 19th Street Bridge, which he opposes. Kathleen Cray discussed water and the diversity of wildlife on the Banning Ranch site, reported witnessing endangered Savannah Sparrows daily on her deck, listed the variety of birds and wildlife she has witnessed in the area, and urged Council to not approve the application. Volume 60 - Page 539 City of Newport Beach City Council Minutes July 23, 2012 Sharon Koch, Chair of the Orange County Political Committee for the Orange County Chapter of the Sierra Club, addressed difficult economic times, expressed opposition to the proposed development, and urged Council to consider future generations and keep Banning Ranch as open space. Ron Frankiewitz believed that the proposed development will cost taxpayers money because of the need for road mitigation and read a portion of the statement from Coastal Commission's staff which addressed requests for a Coastal Development Permit and constraints on the site. Sheila Koff asked Council to vote differently, expressed opposition to the proposed project, and addressed existing toxins from oil operations. Cindy .Black suggested that BonTerra meet with one of the previous speakers regarding the existing wildlife species in the area, noted that the Surfrider Foundation recommends Alternative B and that Banning Ranch be kept open space in its entirety, listed chemicals being produced on the site, and encouraged Council to vote against the project. Don Bruner addressed impacts to residents of the area due to the size and scope of the proposed development and urged Council to vote for re- circulation of the EIR. Terry Koken addressed the amount of polluted dirt to be removed from the area and the associated truck traffic, and expressed concerns regarding the impacts to the City of Costa Mesa. Ryan Bensley pointed out that the EIR states that there are significant economic, social, and public benefits that outweigh significant unavoidable impacts associated with the General Plan project, and noted that these are direct impacts to the citizens of Costa Mesa and the Newport Crest development. He read a statement from Coastal Commission's staff regarding recent mowing occurring in the area and noted that the area is a critical habitat for many endangered species. Jeannie Gillett continued reading the statement from Banning Ranch Conservancy, addressing excessive mowing in the area and comparing actions with other oil wells in the area. She stated that the General Plan prioritizes keeping Banning Ranch as open space. Dorothy Kraus continued reading a statement from Coastal Commission's staff, addressing the Endangered Species Act, the Migratory Bird Act, and requirements to work with State agencies including the California Coastal Commission. She addressed areas of critical habitat on the site and expressed concerns that Council would declare that the benefits of the development outweigh significant unavoidable impacts of the project. Bonnie Copeland noted that under Federal law, the previous owners and operators of polluted land have joint responsibility for cleaning up the area and stated that all development on the site is subject to the California Coastal Act, especially as it relates to mowing on Banning Ranch and protecting endangered species. Debby Kokeh continued reading the statement from the Coastal Commission's staff regarding the EIR, noting that it does not endorse an MCDP and that it is not appropriate for analyzing conceptual projects but rather for specific projects with known and identifiable impacts. She addressed removal of the MCDP from the EIR and legal statuses of disturbances on site. In addition, she addressed ongoing oil operations, the need for additional details regarding the extent of the exception authority asserted by the developers for ongoing oil.operations, and the Coastal Commission's analysis of impacts and recommendations. Volume 60 - Page 540 City of Newport Beach City Council Minutes July 23, 2012 Taoward Lee believed that the parties responsible for the oil operations and pollution should be the parties in charge of cleaning the site. Norm Puff addressed the construction of Bluff Road from 17th Street to 19th Street, believing that if it is constructed through the middle of the open space therefore, the land is no longer open space. He asked that Council delete that section of road. George Demos continued reading the statement from the Coastal Commission's staff which addressed the need for a claim of vested rights, associated requirements, and the Newport Beach Coastal Land Use Plan. Sandy Genis addressed an agreement entered into by the City of Costa Mesa and the applicant for roadway improvements but noted that a request for a re- hearing was filed by Costa Mesa Council Member Wendy Leece and she provided a copy for staff review. She took issue with the EIR as it relates to CERA, expressed the opinion that responses to comments were inadequate, and stated that ESHA is to remain in place and is not something that can be moved around. Mary Demos addressed biological resources and continued reading the statement from the Coastal Commission's staff regarding protection of environmental habitat areas, developments adjacent to ESHA and buffer areas, and functions. Dr. Jennifer Frutig asked that Council preserve Banning Ranch as open space for future generations, noting that it is the preferred use in the General Plan. She addressed the size and scope of the project and the density of the proposed residential units. Jim Cassidy indicated that he had an opportunity to tour Banning Ranch and was impressed with its size. He expressed concerns with the density and height of the proposed residential units and continued reading the statement from the Coastal Commission's staff regarding buffer areas. Rob Hager presented a written statement which addressed governing authority for the area, expressed the opinion that the EIR is diluted by the County's 300+ acres, asked that Council protect its citizens, and asked that Council postpone the hearing and order another EIR covering only the City's 40+ acres. Jim Mosher noted that the agenda and staff report list that Council will be contemplating taking six actions, hoped that the burden of defending a defective document will not fall upon the taxpayers, addressed the Statement of Overriding Considerations regarding receipt of yearly net benefits, believing that it will decrease because of the costs related to maintaining the proposed parks and Bluff Road, expressed the opinion that the net benefits should account for all associated costs, and addressed the resolution introducing the ordinance, noting that the meeting referred to in the document was not properly noticed. Jeffrey Childs addressed the 19th Street Bridge and expressed concerns with increased traffic and impacts to wildlife. Robert Schuman expressed opposition to the proposed development because of impacts to quality of life and property values, believed that development has to occur sensitively and with consideration to neighbors, and asked Council to vote against the project. Norman Suker addressed the 19th Street Bridge meetings with the County and a statement by one of the Directors, noted that the City has stated that deletion of the bridge is not a Volume 60 - Page 541 City of Newport Beach City Council Minutes July 23, 2012 problem, addressed the traffic study in the EIR regarding consideration of the bridge and that there would be increased impacts if the bridge were not built, and submitted written comments. Unknown Speaker indicated that he is a business owner who represents local businesses, expressed support of the proposed development as it is a means for economic development for the City and will drive jobs, as well as provide needed open areas and parks for residents. Unknown Speaker believed that integrating the residential community with the wildlife habitat cannot be successfully accomplished. She reported that in Newport Heights, they have an influx of coyotes, possums and raccoons, indicated that she attended the Planning Commission meeting, and believed that this project would put Newport Crest residents in a terrarium. Dick Hamm indicated support for the proposed development; addressed public facilities and other benefits; stated that if the land is left as open space, it will cost over $200 million to clean it up; noted that proceeding with the project does not preclude the Banning Ranch Conservancy with continuing its efforts to purchase the site; and believed that there is no reason for continued delays. Richard Luehrs, President of the Newport Beach Chamber of Commerce,_ addressed the Chamber's mission, provided a brief history about the Chamber, and indicated support for the proposed development because of its creation of jobs and environmental and economic benefits to the community. Terry Welsh, President of the Banning Ranch Conservancy, referenced comments submitted to the City and indicated that many agencies agree with the Conservancy that additional studies need to be conducted. He read an email from the Coastal Commission indicating that they have provided comments regarding the EIR and that they stand behind those comments. He addressed the vernal pools and believed that additional studies are needed, as well as studies for areas of native vegetation and grass lands. He stated that recent mowing in the area affects the Nat Catcher habitat and urged Council to deny the EIR and conduct the necessary studies. Mike Mohler, Newport Banning Ranch, reported that the EIR specifically addresses the amount of grading as potentially being up to 20,000 cubic yards of soil that may need to be taken offsite; addressed the slope of the land to Bluff Road; discussed the phasing plan; and indicated that depending on market conditions, they may be able to be out of the Newport Shores and Newport Crest areas in 2 to 3 years. He added that there are specific road requirements in the conditions of approval that dictate this. In addition, Council also has the option to omit Saturday grading. He reported that they are not building on top of wells and addressed Coastal Commission staffs comments, noting that the majority of the Commissioners did not agree with their staff. He encouraged Council to review the Pebble Beach decision regarding ESHA, and. addressed the 19th Street Bridge, density, and location of water elements. He further pointed out that 75% of the land will remain open space. There being no further testimony, Mayor Gardner closed the public hearing. Mayor Gardner recessed the meeting at 10:08 p.m. and reconvened the meeting at 10:15 p.m. with all members of the City Council in attendance, except for Council Member Hill who has an excused absence. City Attorney Harp reported that overall, the responses to comments address most of the issues raised. Volume 60 - Page 542 City of Newport Beach City Council Minutes July 23, 2012 Deputy Community Development Director Wisneski reported that there have been several documents submitted by the public, as well as verbal testimony, and that staff has collected them and provided written responses to those comments which are included in the staff report as Attachment r. She indicated that notes have been taken this evening and staff is prepared to respond to those comments. Planning Manager Alford noted that a comparison of allowable densities and height limits was made in Newport Shores and Newport Crest, addressed noise studies, noted that the conditions require a more detailed noise analysis and specific mitigation measures, and reported that the geotechnical section of the EIR addresses the entire earthquake hazards in the area and that the results in the Brody analysis were presented to' the Planning Commission who concluded that the analysis did not bring forward any new information that would change the EIR. He stated that an explanation was provided at the Planning Commission meeting regarding uses of the various models and that written responses are part of the documentation submitted to Council. He reported that when staff initially approached Coastal Commission staff, it was intended to provide a full analysis of the Banning Ranch CLUP but staff was directed by Coastal Commission staff to remove all referenced to the Banning Ranch property because they did not want to prejudice future land use decisions. He added that the EIR contains a full consistency analysis with all of the Coastal Commission policies. Regarding the pedestrian bridge, City Traffic Engineer Brine reported that no analysis was included regarding the pedestrian bridge or the volumes of pedestrians using the bridge and believed that pedestrians using the bridge would eliminate associated traffic and reduce impacts. Regarding selenium, Dana Privett, BonTerra, addressed the issue of water quality and noted that selenium is typically found in soils for the Monterey formation, and that there is no information in terms of the technical analysis performed to suggest that the formation for those soils is in place. She stated that her company is comfortable with the expectation that no selenium will be found on the site. Regarding the comment regarding vegetation remapping, Ann Johnson, Principal Biological Services for BonTerra, reported that the mapping presented in the EIR is accurate and that no new information has been presented to change their findings. Regarding nesting on the site, Ms. Johnson reported that the pictures presented by a previous speaker indicated that nesting is occurring on transmission poles; however, those poles are outside the project limits and are adjacent to the wetlands and alongside the Santa Ana River. She reported that the nesting birds were addressed in the EIR, as well as impacts to various avian species and noted that mitigation measures have been provided accordingly. Council Member Henn requested that staff respond to the letter from Coastal Commission staff that was read by many of the speakers. Whit Manley, Remy Moose Manly LLP, reported that each of the points raised in the letter from Coastal Commission staff were responded to in the response to comments. He noted that making comments does not require re- circulation of the EIR. However, he pointed out that the letter does not express comments from the Coastal Commission as a body and added that the City has certain obligations as the lead agency to _consult with Coastal Commission to obtain input and respond to them. He indicated that it is believed that the EIR addresses those appropriately. Further, the City is not legally required to acquiesce to the comments of Coastal Commission staff but rather to consult, respond in good faith and reach conclusions, Volume 60 - Page 543 City of Newport Beach City Council Minutes July 23, 2012 supported by facts. He pointed out that the Coastal Commission is not bound by the actions of the City and will make their own determinations. He reported that the City's obligation is to interact with them, which the City has done. Council Member Henn inquired regarding the issue of vernal pools. Ann Johnson reported that the Conservancy has identified approximately 50 features on the site that, at some time, had ponded water. Based on a detailed analysis by BonTerra staff and experts, analysis was conducted on the soils, hydrology, vegetation and presence or absence of Fairy Shrimp, and it was determined that the 50 pool areas do not represent vernal pool areas. Many of the areas are oil well pads and sumps, asphalt roads, dirt roads and tire ruts, gravel scrapes, excavated areas, and pits. They are areas that in unusual or extreme rain, create pond water. She stated that the findings in the EIR are adequate, that significant impacts have been identified and appropriate mitigation measures have been generated. Further, since the San Diego Fairy Shrimp is an endangered species, it will need further approval from the U.S. Fish and Wildlife Services. Council Member Daigle referenced the desire to eliminate language recommended by the Planning Commission regarding substitution of residential units if the developers are unable to build a hotel. Planning Manager Alford reported that the ability to transfer some of the units to the resort inn site has always been a component of the plan, stressed that this is not a conversion of hotel rooms to residential units but would be taking from the pool of 1,375 units, reported that the Planning Commission questioned whether a 75 room inn would be viable, and believed that the developers needed to make a good -faith effort to build the resort inn before they could transfer units and develop them on the resort inn site. He indicated that the Planning Commission set a time limit under which they would be precluded from going ahead with the alternative use of the resort inn site and stated that the applicant is asking that the errata to the PC Development Plan be modified to exclude that provision. Mayor Gardner requested that street sweeping in the private streets and parking lots be done at the same rate as in other parts of the City, asked for detailed information regarding green streets, and asked that a requirement be made to prohibit trucks from idle during construction. Additionally, she inquired regarding the 97 -acres of exotics, suggested increasing the area of habitat, stated that there should be a prohibition on invasive exotics abutting the natural areas, and encouraged the use of energy - efficient appliances and features. She pointed out that the General Plan allowed for a parallel path for open space, as well as for a proposed development, emphasized that Council and staff have not been unfriendly to the process, expressed the opinion that the Conservancy has been disingenuous regarding the letter from Coastal Commission staff, commented regarding reading letters into the record, and suggested that in the future, the public provide written comments and make their personal pleas. Following discussion, there was no desire to re- circulate the EIR or reconsider the alternatives. Council Member Henn indicated that the benefits of the project are overwhelmingly favorable compared to the adverse impacts that have been identified and noted that this is not just a question of money, but is positive from an environmental standpoint since the open space will be cleaned up and made usable. City Attorney Harp noted that his office prepared amendments to some of the proposed documents. Motion by Council Member Henn, seconded by Council Member Rosanskv to a) adopt Volume 60 - Page 544 City of Newport Beach City Council Minutes July 23, 2012 Resolution No. 2012 -58 certifying Environmental Impact Report No. ER2009 -002 (SCH No. 2009031061) and adopting Findings and Facts in Support of Findings; b) adopt Resolution No. 2012 -59 approving General Plan Amendment No. GP2008 -008 and adopting a Statement of Overriding Considerations; c) introduce Ordinance No. 2012 -16 approving Code Amendment No. CA2008 -004 and Planned Community Development Plan Amendment No. PC2008 -002, and pass to second reading for adoption on _August 14, 2012; d) adopt amended Resolution No. 2012 -60 approving Master Development Plan No. MP2008 -001, Tentative Tract Map No. NT2008 -003, Affordable Housing Implementation Plan No. AH2O08 -001, Traffic Study No. TS2008 -002, and the Newport Banning Ranch Mitigation Monitoring and Reporting Program; and e) introduce amended Ordinance No. 2012 -17 approving Development Agreement No. 2008 -003, and pass to second reading for-adoption on August 14, 2012. Council Member Rosansky commented positively on the proposed project, addressed the related public benefits, and believed that there has been a good -faith effort by the City to assist the Banning Ranch Conservancy with trying to identify funds to purchase the property. Council Member Daigle addressed the General Plan and stated that the project is consistent with the voter - approved General Plan. Mayor Pro Tem Curry requested that, the City Manager direct the Finance Director to establish a trust account in order to deposit the $5 million donated to the Banning Ranch Conservancy effort, as well as any other donation that may be contributed toward the land acquisition. He added that in the six years he has been on the City Council, the Conservancy has not raised any money toward the acquisition of the property. Council Member Selich agreed with previous Council Member comments; noted that he does not look at the project as approving a development, but rather approving an open space and conservation plan; expressed the opinion that this is a financial and feasible plan; reported that he has read the EIR, as well as the comments and responses; and stated that he has heard nothing during this hearing or been provided substantial evidence that would change his opinion. City Attorney Harp reported that the idling issue has been addressed in the EIR, but recommended that conducting street sweeping once a week, removing exotic species, and prohibiting the use of invasive plants next to open space areas be included in the Development Agreement, if desired. Following discussion, it was the consensus of Council to maintain the errata recommended by the Planning Commission. Amended motion by Council Member Henn, seconded by Council Member Rosanskv to a) adopt amended Resolution No. 2012 -58 certifying Environmental Impact Report No. ER2009 -002 (SCH No. 2009031061) and adopting Findings and Facts in Support of Findings; b) adopt Resolution No. 2012 -59 approving General Plan Amendment No. GP2008 -008 and adopting a Statement of Overriding Considerations; c) introduce Ordinance No. 2012 -16 approving Code Amendment No. CA2008 -004 and Planned Community Development Plan Amendment No. PC2008 -002, and pass to second reading for adoption on August 14, 2012; d) amended adopt Resolution No. 2012 -60 approving Master Development Plan No. MP2008 -001, Tentative Tract Map No. NT2008.003, Affordable Housing Implementation Plan No. AH2O08- 001, Traffic Study No. TS2008 -002, and the Newport Banning Ranch Mitigation Monitoring and Reporting Program; and e) introduce amended Ordinance No. 2012 -17 approving Development Agreement No. 2008 -003, including the prohibition on construction truck idling, conducting street sweeping once a week, removing exotic species, and prohibiting the use of invasive plants next to open space areas, and pass to second reading for adoption on August 14, 2012. Volume 60 - Page 545 City of Newport Beach City Council Minutes July 23, 2012 The amended motion carried by the following roll call vote: Ayes: Council Member Rosansky, Mayor Pro Tern Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle Absent: Council Member Hill XII. ADJOURNMENT - 10:57 p.m. The agenda for the Special Meeting was posted on July 29, 2012, at 4:45 p.m on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. .,� Recording Secretary Mayor yu6k �' bE8�:� City Clerk Volume 60 - Page 546