HomeMy WebLinkAbout11 - Back Bay Landing - CorrespondenceAgenda Item No. 11
February 11, 2014
Recieved After Agenda Printed
LAW OFFICES OF ROBERT C. HAWKINS
February 10, 2014
Via email (jmurillo(a),newportbeachca.eov)
Rush Hill, Mayor
Members of the City Council
c/o Jaime Murrillo, Senior Planner
Department of Community Development
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Re: Comments on City Council Agenda Item No. 11:
Back Bay Landing Final Environmental Impact Report ( "FEIR ")
SCH No. 2012101003
Greetings
Thank you for the opportunity to comment on the captioned matter. As you know, this firm
represents Stop the Dunes Hotel, an unincorporated community action group dedicated to ensuring
compliance with state and local laws including the California Environmental Quality Act, Public
Resources Code sections 21000 et seq. in connection with developments in and around the Back Bay
and the Dunes and Friends of the Bay dedicated to protection of Upper and Lower Newport Bay.
Because this Project threatens the Upper and Lower Newport Bay environment, traffic, biological
resources, aesthetics and views, noise, and other resources, we offer the following comments on the
DEIR/FEIR in the serious hope of avoiding these significant impacts which will seriously and
adversely affect our City, our community and the Upper and Lower Newport Bay environment. Of
course, these comments may seem late, but the Staff Report for the captioned Agenda Item No. 11
only came out on Friday afternoon, February 7, 2014. These comments are timely.
I. Introduction: EIR Standards.
An EIR constitutes the heart of CEQA, Public Resources Code sections 21000 et seq.: An
EIR is the primary environmental document which:
".. serves as a public disclosure document explaining the effects of the proposed
project on the environment, alternatives to the project, and ways to minimize adverse
effects and to increase beneficial effects."
CEQA Guidelines section 15149(b). See California Public Resources Code section 21003(b)
(requiring that the document must disclose impacts and mitigation so that the document will be
meaningful and useful to the public and decision - makers.)
Further, CEQA Guidelines section 15151 sets forth the adequacy standards for an EIR:
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"An FIR should be prepared with a sufficient degree of analysis to provide decision -
makers with information which enables them to make a decision which takes account
of the environmental consequences. An evaluation of the environmental effects of
a proposed project need not be exhaustive, but sufficiency of an EIR is to be
reviewed in the light of what is reasonably feasible. Disagreement among experts
does not make an EIR inadequate, but the EIR should summarize the main points of
disagreement among the experts. The courts have looked not for perfection but for
adequacy, completeness, and a good faith attempt at full disclosure."
Further, "the EIR must contain facts and analysis, not just the agency's bare conclusions or
opinions." Concerned Citizens of Costa Mesa. Inc. v. 32nd District Agricultural Association.
(1986) 42 Cal. 3d 929, 935 (Emphasis supplied.).
An agency's determination in connection with an EIR must be supported by substantial
evidence. Public Resources Code sections 21168 and 21168.5. "[S]ubstantial evidence includes
fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." Public
Resources Code section 21080(e)(1). However, "[r]elevant personal observations such as [personal
observations about noise] can constitute substantial evidence." Oro Fino Gold Mining Corp. v.
County of Del Oro (1990) 225 Cal. App. 3d 872, 882.
In addition, an EIR must specifically address the environmental effects and mitigation of the
Project. But "[t]he degree of specificity required in an EIR will correspond to the degree of
specificity involved in the underlying activity which is described in the EIR." CEQA Guidelines
section 15146. The analysis in an EIR must be specific enough to further informed decision making
and public participation. The EIR must produce sufficient information and analysis to understand
the environmental impacts of the proposed project and to permit a reasonable choice of alternatives
so far as environmental aspects are concerned. See Laurel Heights Improvement Association v.
Dents of the University of California (1988) 47 Cal. 3d 376.
Also, to the extent that an EIR proposes mitigation measures, it must provide specific
measures. It cannot defer such measures until some future date or event. `By deferring
environmental assessment to a future date, the conditions run counter to that policy of CEQA which
requires environmental review at the earliest feasible stage in the planning process." Sundstrom v.
County of Mendocino (1988) 202 Cal. App. 3d 296, 308. See Bozung v. Local Agency Formation
Com.0975) 13 Cal.3d 263, 282 (holding that "the principle that the environmental impact should
be assessed as early as possible in government planning. "); Mount Sutro Defense Committee v,
Regents of University of California (1978) 77 Cal. App. 3d 20, 34 (noting that environmental
problems should be considered at a point in the planning process "where genuine flexibility
remains "). CEQA requires more than a promise of mitigation of significant impacts: mitigation
measures must really minimize an identified impact.
"Deferral of the specifics of mitigation is permissible where the local entity commits itself
to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the
mitigation plan. (Citation omitted.) On the other hand, an agency goes too far when it simply
requires aproject applicant to obtain abiological report and then comply with any recommendations
that may be made in the report. (Citation omitted.)" Defend the Bay v. City of Irvine (2004) 119
Cal. App. 4th 1261, 1276.
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H. The Project FEIR is Confused and Requires Substantial Revision.
Chapter 1, Introduction, identifies the DEIR as a Project EIR. It states that
"A Project FIR must examine all phases of a project, including planning,
construction, and operation. Future development in accordance with the legislative
actions addressed in this EIR is also addressed in this EIR, to the extent possible
based on the available information. This Project EIR is intended to provide the
environmental information necessary for the City to make a final decision on the
requested entitlements for this proposed project. This EIR is also intended to support
discretionary reviews and decisions by other agencies."
FEIR, page 1 -2. Chapter 1 provides the only discussion of the purpose and type of EIR for the
FEIR. Nowhere does it mention that this Project EIR will serve as the basis for subsequent
environmental analysis or tiered environmental review.
The FEIR contains such concepts for the first time in response to comments that the FEIR's
Project Description is inadequate, because it is too vague and engages in piecemeal environmental
review. In response, the FEIR for the first time states that:
"The Back Bay Landing Project Draft EIR properly complies with CEQA in tiering
the analysis of the project's impacts so that the City can `focus upon the issues ripe
for decision at each level of environmental review. "'
FEIR, page 2 -55. Guidelines section 15152 defines "tiering:"
"`Tiering' refers to using the analysis of general matters contained in a broader EIR
(such as one prepared for a general plan or policy statement) with later EIRs and
negative declarations on narrower projects; incorporating by reference the general
discussions from the broader EIR; and concentrating the later EIR or negative
declaration solely on the issues specific to the later project."
Unfortunately, the FEIR fails to acknowledge that the tiering analysis for the Project requires
subsequent and complete environmental review such as a subsequent EIR. The FEIR fails to
recognize this requirement:
Relative to the commenter's suggestion that if the City does adopt the current Draft
EIR as final that it commit to `doing a new or supplementary EIR at a later date prior
to beginning construction,'the commenter ignores not only CEQA provisions for
tiering but also the fact that several discretionary approvals are required before
construction could begin. Section 9 of Chapter 2, starting on page 2 40, lists those
future discretionary approvals. These include a Site Development Review by the City
of Newport Beach and processing of a Coastal Development Permit (CDP) through
the California Coastal Commission. As the Lead Agency, when a Site Development
Review or other project specific permit applications are submitted in the future, the
City must and will comply with CEQA in determining the appropriate level of
CEQA review at that time, including following CEQA section 21094 to examine
potential significant effects based on the Site Development Review.
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FEIR, page 2 -57. However, this commitment to perform the appropriate level of CEQA review at
the time of subsequent approvals ignores the requirements of Section 15152: tiering requires the
preparation of subsequent EIRs or Negative Declarations. There can be no tiering if there is no
subsequent environmental analysis such as a Subsequent EIR.
In addition, the Project is not appropriate for tiering: it is not a complicated project which
covers various sites and numerous specific projects as in Al Larson Boat Shop, Inc. v. Board of
Harbor Commissioners (1993) 18 Cal. App. 4th 729. Rather, it is a specific development project
on a single parcel of land. The FEIR should analyze the Project fully and not improperly defer
analysis for some future time.
The FEIR's claim of tiering came only in its Responses to Comments. The public reviewed
and commented on the Draft EIR without any thought and without any word in the DEIR that there
would be subsequent environmental review. FEIR makes no such commitment. The FEIR's claim
of tiering violates CEQA and attempts to cover the inadequate and piecemeal Project Description.
This alleged tiering is not years off. According to the February 11, 2014 Staff Report, the
Site Development Approvals would be completed within two years with expected occupancy a year
later in late 2016 or early 2017. The DEIR is more optimistic:
"Construction of the proposed project is anticipated to commence in 2014 and
take up to 24 months to complete. The first phase of the construction process
would be demolition, site clearing, debris removal, and staging occurring over
approximately one month; followed by excavation and de- watering over
approximately two months; infrastructure installation and foundation construction
for approximately six months; vertical construction for a duration of 15 months;
landscaping over approximately three months; Bayside Drive roadway
improvements and multi -use trail construction for approximately four months;
and reconfiguration of Bayside Village Mobile Home Park over approximately
six months. The proposed project is anticipated to be completed by 2016."
DEIR, page 4.M -17. Given that construction is set to begin this year, there is no reason to wait
for the Site Development Review and other approvals. All of this must occur now.
Given this schedule, the FEIR must be revised and the entire Project must be fully
described and analyzed, re- circulated for public comment and review, and then hold the hearings
on the revised document.
III.
Section 2 of the dEIR is entitled the "Project Description." CEQA Guidelines section
15124 provides in relevant part:
"The description of the project shall contain the following information but should
not supply extensive detail beyond that needed for evaluation and review of the
environmental impact. [¶] (a) The precise location and boundaries of the proposed
project shall be shown on a detailed map, preferably topographic. The location of
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the project shall also appear on a regional map. This is [¶] (b) A statement of the
objectives sought by the proposed project. A clearly written statement of
objectives will help the lead agency develop a reasonable range of alternatives to
evaluate in the EIR and will aid the decision makers in preparing findings or a
statement of overriding considerations, if necessary. The statement of objectives
should include the underlying purpose of the project. [¶] (c) A general description
of the project's technical, economic, and environmental characteristics,
considering the principal engineering proposals if any and supporting public
service facilities."
In interpreting this requirement, the Court of Appeal emphasized long ago that:
"An accurate, stable and finite project description is the sine qua non of an
informative and legally sufficient EIR."
County of Ingo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193 (Emphasis supplied). The
Count of lLCourt continued:
"Only through an accurate view of the project may affected outsiders and public
decision - makers balance the proposal's benefit against its environmental cost,
consider mitigation measures, assess the advantage of terminating the proposal
(i.e., the `no project' alternative) and weigh other alternatives in the balance."
Id. at 192 -193. Unfortunately, as discussed below, the FEIR does not provide "[a]n accurate,
stable and finite project description."
Chapter 2 of the DEIR foreshadows the piecemeal analysis to come:
"Bayside Village Marina, LLC, the project applicant, is seeking various
legislative and administrative approvals for the future development of a
mixed -use bayfront village, Back Bay Landing (the "proposed project ". The
proposed project would lead to the development of an integrated, mixed -use
village comprising of visitorserving commercial, marine services, and limited
residential uses on an improved but underutilized bayfront site on 6.974 acres in
the City of Newport Beach."
FEIR. 2 -1 (Emphasis supplied). What does this mean: "various legislative and administrative
approvals for the future development ?" What does it mean that "the proposed project will lead
to the development of an integrated, mixed -use village ?"
In plain terms, this means that the "proposed project" or the Project is only a part of a
larger project which is the development of an integrated, mixed -use village, which is yet to be
proposed or analyzed. The integrated, mixed -use village is a future project which is not
analyzed in the FEIR.
As the City knows well, this is improper project segmentation under CEQA. In Bannine
Ranch Conservancy v. City of Newport Beach (2012) 211 Cal. App. 4th 1209 ( "City of Newport
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Beach Banning]" which the City successfully defended clearly addressed the issue of improper
project segmentation also known as piecemealing under CEQA. The Court noted that:
"`CEQA forbids "piecemeal" review of the significant environmental impacts of a
project." (Berkeley Jets, supra, 91 Cal.AppAth at p. 1358.) Agencies cannot allow
"environmental considerations [to] become submerged by chopping a large
project into many little ones -each with a minimal potential impact on the
environment -which cumulatively may have disastrous consequences.' (Bozune,
supra, 13 Cal.3d at pp. 283 -284 [EIR required when city annexed land for
anticipated development].)'
"The California Supreme Court set forth a piecemealing test in Laurel Heights.
`We hold that an EIR must include an analysis of the environmental effects of
future expansion or other action if: (1) it is a reasonably foreseeable consequence
of the initial project; and (2) the future expansion or action will be significant in
that it will likely change the scope or nature of the initial project or its
environmental effects." (Laurel Heights, supra, 47 Cal.3d at p. 396.)' `Under this
standard, the facts of each case will determine whether and to what extent an EIR
must analyze future expansion or other action.' Ibid.)"
Id. at 1222. The City of Newport Beach [Banning] Court recognized:
"The California Supreme Court set forth a piecemealing test in Laurel Heights.
`We hold that an EIR must include an analysis of the environmental effects of
future expansion or other action if: (1) it is a reasonably foreseeable consequence
of the initial project; and (2) the future expansion or action will be significant in
that it will likely change the scope or nature of the initial project or its
environmental effects.' (Laurel Heights, supra, 47 Cal.3d at p. 396.) `Under this
standard, the facts of each case will determine whether and to what extent an EIR
must analyze future expansion or other action.' Ibid.)
Id. The City of Newport Beach [Banning] Court held that the access road challenged by
petitioners was not a part of a greater project but was:
"But the park's access road is only a baby step toward the NBR project. Certainly
it is a much smaller step than the reviewed actions in the `first step' cases. The
park project does not take the major step of changing Banning Ranch's zoning to
accommodate the NBR project. (Cf. Bozung, supra, 13 Cal.3d at pp. 269 -270
[annexing land for rezoning and development]; City of Carmel -by- the -Sea v.
Board of Supervisors, supra, 183 Cal.App.3d at p. 244 [rezoning land for
"specific development project "].) Nor is the park being built to induce Banning
Ranch's development -the NBR project has already been planned. (Cf. Antioch,
supra, 187 Cal.App.3d at p. 1337 [road and sewer was "catalyst" for future
development].) The access road furthers the NBR project, but relatively modestly.
(Cf. Laurel Heights, supra, 47 Cal.3d at p. 398 [initial relocation into one -third of
building].) Expanding the park access road into Bluff Road will still require an
enormous undertaking, doubling the number of lanes and extending it thousands
of feet to 19th Street. And the NBR project is much more than just Bluff Road;
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that road will service 1,375 new residential units, 75,000 new square feet of
commercial space, and a new resort hotel. The access road is consistent with the
NBR project, no doubt. But it is a stretch to say the NBR project is a consequence
of the access road.
Id. at 1225 -1226.
Here, it is different. That is, the Project with its "various legislative and administrative
approvals for the future development' "will lead to the development of an integrated, mixed -
use village." This is exactly what the Court recognized as illegal piecemeal analysis under City
of Newport Beach [Banning]. None of this larger project is analyzed in the DEIR/FEIR. The
Project will, in the words of the FEIR, "lead to" a larger project that is not analyzed in the
DEIR/FEIR. Under City of Newport Beach [Banning], that is illegal and improper piecemealing
or Project segmentation under CEQA.
But that is not where it ends. The Project as described includes several other segments
not analyzed in the DEIR. For instance, the DEIR notes:
"No land use or physical changes to this waterside portion of Parcel 3 are
proposed as part of the subject entitlement applications (however, it should be
noted that a future project may include a small inlet channel from the existing
Bayside Village Marina to allow for boat launching at a proposed future dry -stack
boat storage facility, which would be subject to Site Development Review at such
time a specific project is proposed)."
DEIR, 2 -1. The Site Development Review will be deferred until well after approval of the
Project and certification of the DEIR. However, it is clear that the boat launching project is part
of the Project. Indeed, the DEIR recognizes that this boat launching facility is already a part of
the Project.
"As noted above, a small water inlet with a retractable walkway bridge is
proposed to provide for the launching and storage for boats housed within the dry
stack boat storage facility. The design of the inlet is intended to minimize public
walkway access conflicting with boat launching operations, and would provide a
focal point of visitor interest."
DEIR, 3 -1. Hence, the DEIR/FEIR confused and confusing: what is the status of the boat
launching facility? The DEIR/FEIR must be revised and recirculated to clarify this confusion.
Further,
"The balance of the 6.974 -acre project site, 0.642 acres (27,966 square feet), are
designated as Recreational and Marine Commercial Area (Planning Area 2) and
are located under and immediately south of the Coast Highway bridge. Although
this 0.642 -acre contiguous parcel is not part of the requested land use
amendments, it would be developed consistent with the current Recreational and
Marine Commercial General Plan and Coastal Land Use Plan designations. This
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0.642 -acre area is also included in the Back Bay Landing PCDP (PC -9)
boundaries and development standards."
DEIR, 2 -2. Given that the 0.642 acres will be developed as part of the Project, the FEIR must
analyze the environmental impacts of this Project feature. Unfortunately, the FEIR fails to provide
adequate analysis. It must be revised and recirculated for public review and comment.
In addition, the DEIR describes the Project's components which include:
"The proposed project consists of the requested legislative approvals (GPA, CLUP,
PC Amendment) for the project site, as well as requests for administrative approvals
of a LLA and Traffic Impact Analysis (TIA). Project- specific administrative
approvals (e.g., Site Development Review, CDP [Coastal Development Permit], and
Harbor Permit) will be processed at a future date."
DEIR, page 2 -3
However, these administrative approvals are part of the Project and yet the FEIR fails to analyze
these components because they are not yet certain. However, as indicated above, the FEIR
incorporates the boat launching component without any approvals for this boat launching
component.
Indeed, the Site Development Review and the Coastal Development Permit provide Project
specific information about the Project. These must be analyzed in the DEIR.
Further, under existing site conditions, the DEIR recognizes that the "over 45 year old"
Orange County Sanitation District ( "OCSD ") pump station is "adjoining" "the southwest portion"
of Planning Area 1 also known as Parcel 3 (it gets more confusing; this is a serious flaw in an
informational document such as the FEIR). Please note that Figure 2 -3 accurately portrays this
adjoining use and condition: It almost bisects Planning Area No. 1 or Parcel 3. Also, the DEIR fails
to recognize that, instead of an "over 45 year old" pump station, the Bitter Point Pump Station was
completely rehabilitated in 2012. See Exhibit "A" which is a copy of the Notice of Completion of
this work which is described as:
"Total replacement of the existing Bitter Point sewage Pumping Station with a new
and upsized 39.43 million gallons per day pump station. Construction of the new
pumping station included a below -grade wet well and drywell. and an above -grade
electrical room. Major Process equipment included installation and construction of
5 main sewage pumps, 1 generator set, 1 new chemical addition system, and civil
yard piping work. Other major work included installation of a new fiber optic cable
from the new Bitter Point Pump Station to OCSD's Plant No. 2."
Obviously, the DEIR's characterization of the Bitter Point Pump Station as "over 45 year(s) old"
is very misleading and must be revised.
Moreover, the Orange County Sanitation District's comments propose that the Project's
impacts require mitigation: relocating the pump station. See Comment F -2. The FEIR's response
admits to the piecemeal analysis:
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"The proposed Planned Community Development Plan (PCDP) allows for the future
relocation of the pump station within Planning Area 1 as part of future project
implementation; however, should this occur, the exact location ofthe relocated pump
station would be determined once a specific project design is brought forth."
Response to Comment F -2, FEIR, page 2 -37.
What is the impact of the Project on the Bitter Point Pump Station or likewise what is the
impact of the Bitter Point Pump Station on the Project including the residential users on Planning
Area 1 or Parcel 3with their residential components? We will address this below in our comments
on the Project's impacts on air quality and hazards.
Further, Section 2 recognizes that surrounding uses of the Project area, Parcel No. 3 also
known as Planning Area No. 4, is the "recreational uses within the Newport Dunes Resort."
However, this is inaccurate. As the City well knows, Parcel No. 3 aka Planning Area No. 4 is
adjacent to the Dunes "Family Inn" site also known as Parcel C on the Newport Dunes Map attached
hereto as Exhibit `B" from the July 22, 2012 Staff Report to the City Council, Attachment CC2.
As indicated above, the Project includes several legislative actions including a General Plan
Amendment, a Coastal Land Use Plan Amendment, and a zone code change or a planned community
text. The DEIR states that:
"The proposed General Plan Amendment would change the existing 6.332 ]acre
portion of the project site designated as Recreational and Marine Commercial (CM
0.5) consisting of the proposed Mixed -Use Area (Planning Area 1), Private Marina
Access and Beach (Planning Area 3), and Marina and Bayside Village Storage and
Guest Parking (Planning Area 4) to Mixed -Use Horizontal 1 (MU -Hl) by
reallocating unused residential density from Parcels 1 and 2 (i.e., the existing
Bayside Village Mobile Home Park) to Parcel 3 of Parcel Map 93 ] 111. All three
parcels are owned by the project applicant and are within the same General Plan
Statistical Area (Statistical Area K -1, see further discussion and Figure 25, Statistical
Area K -1 Boundary, below)."
DEIR, page 2 -8. Although the existing density of the Bayside Mobile Home Park (the `BMHP ")
is 270 residential units, the General Plan allows the area a higher density based upon the size of the
parcels. But the BMHP does not have any vacate spaces: it is fully used. So, as discussed below
regarding Project impacts including traffic impacts, this is simply a plan not existing units.
As a part of the GPA, the Project creates yet another set of General Plan Anomalies:
Anomaly Nos. 80 and 81. The FEIR notes that:
"The purpose of Anomalies in the Land Use Element of the Newport Beach General
Plan is to identify and set General Plan development limits on individual properties
by capping residential unit (density) and nonresidential floor area (intensity) yield
below otherwise higher density/intensity allowances."
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FEIR, 2 -8. However, this conflicts with the stated purposes of the Anomalies Table presented to
the Council and submitted to the voters in 2006. The June 27, 2006 Staff Report to the City Council
stated:
"The draft plan also includes the Anomaly Table (A2 in the draft, although staff
recommends it be moved to the body of the Land Use Element) which is necessary
given the large number of site specific densities or square footage limitations.
Page 5. That is, the Anomaly Table was necessary to accommodate existing site specific densities
or square footage limitations, not to impose new limitations on parcels within the City. For instance,
the June 27, 2006 Staff Report states:
"Commercial properties with square footage limitations have generally been added
to the Anomaly Table and have been identified on the map with a circled number."
Page 6. Or again,
"Like the Commercial designation, any specific FAR's will either be depicted on the
map or in some cases be included in the Anomaly Table."
Id. Again, this is existing specific floor area ratios.
However, the Anomalies Nos. 80 and 81 do two things which are not existing today and not
analyzed in the 2006 General Plan EIR. First, it entitles and creates the ability to transfer of 49
dwelling units (du's) to the Project. (It does not create the transfer, because, as discussed below,
Newport Beach Municipal Code ( "NBMC ") section 20.46 is never satisfied with the Project.)
Second, it entitles Anomaly 81, a non - Project site, with an additional 26 do's which are not existing
and which are not allowed under the current General Plan. All of this is done without adequate
environmental review.
In addition, the Project requires an amendment to the Coastal Land Use Plan which is not
warranted and is not supported by substantial evidence. The DEIR states that Section 2 of the CLUP
would be amended with the Project to provide:
"The site would accommodate the development of an integrated, mixed -use
waterfront project consisting of coastal dependent and coastal related visitor - serving
commercial and recreational uses allowed in the current CLUP CMA and CMB
designation, while allowing for limited freestanding multifamily residential and
mixed -use structures with residential uses above the ground floor. Residential
development would be contingent upon the concurrent development of the above -
referenced marine - related and visitor - serving commercial and recreational facilities,
including the enclosed dry stack boat storage facility and completion of a new public
bayfront promenade connecting with Bayside Drive and Newport Dunes /County
trails."
Page 2 -11.
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However, until the Site Development Review is conducted, and subjected to public hearing and
review, none of this is assured or guaranteed. Further, the California Coastal Commission must
approve this amendment with the introduction of non - visitor serving residential uses without any
mitigation or off set.
Moreover, the Project proposes to amend the coastal height limit of 35 feet to allow for:
"A single, up to 65 -foot tall coastal public view tower, that will be ADA compliant
and publicly accessible, to provide new coastal and Upper Newport Bay view
opportunities where existing views are impacted by the East Coast Highway Bridge,
other existing structures and topography."
DEIR, page 2 -12. This raises several issues, all of which are unresolved in the DEIR/FEIR and its
vague Project description. First, how wide is this 65 -foot public view tower which will have an
elevator? Exactly, how tall with the structure with elevator be? Neither the Project Description nor
the Project documents including the Back Bay Landing Planned Community Development Plan
( "PCDP ") and the Guidelines contained therein provide any of this detail, because that awaits the
second part of the Project: the Site Development Review approval. Given that the tower extends
over 30 feet higher than the height limit, the DEIR/FEIR must provide more definition and
description than a 65 foot public view tower which will be ADA compliant.
Second, the DEIR fails to recognize that the Project itself creates the need for this Project
feature: as discussed below, the Project will impact a scenic highway and will adversely affect views
to Newport Bay and from view locations to the Project site.
The Project also includes a curious zone change to the Planned Community 9 (PC -9) for a
little over one half acre of land. The DEIR states:
"Although this 0.642 ]acre contiguous parcel is not part of the requested land use
amendments, it would be developed consistent with the current Recreational and
Marine Commercial General Plan and Coastal Land Use Plan designations. This
0.642 acre area is also included in the Back Bay Landing PCDP (PC -9) boundaries
and development standards."
DEIR, page 2 -12. It is unclear why, if the current General Plan designations remain, there is any
need to change the zoning. What will change?
The DEIR states that:
"The purpose of the PCDP is to establish appropriate zoning regulations governing
land use and development of the site consistent with the City of Newport Beach
General Plan and Coastal Land Use Plan. The PCDP provides a vision for the land
uses in the site and sets the development limits, allowed land uses, development
standards and design guidelines that would guide the next level of approvals at the
Site Development Review and Coastal Development Permit approval process, as
well as the long term operation of the developed site. The regulations would also
guide the future project applicant and community's expectations."
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Page 2 -13. Unfortunately, nothing in the PCDP provides any detail other than suggestions regarding
height, square footage, residential du's, and very general and vague standards for development. It
provides no standards to guide "the future project applicant and the community's expectations." It
is simply too vague to do that. For instance, probably the largest structure will be the parking
structure. But none of the Project documents including the PCDP provide the number of parking
spaces for that structure. It only provides the standards to calculate the parking requirements once
the uses are determined. No one knows exactly how large the parking structure will be.
Also, the DEIR states:
"As described in the PCDP, a parking structure would be designed to allow access
from the entry grade to three levels above grade, providing another opportunity for
elevated coastal view opportunities of the bay and surrounding coastal vistas.
Parking levels and spaces would be designated for the existing marina, enclosed dry
stack boat storage tenants, and visitor - serving retail uses, as well as additional
Bayside Village Mobile Home Park guest parking. The semi - subterranean parking
level would be secured and designated solely for the Back Bay Landing residential
units."
Page 2 -14. As discussed below, this raises several problems. First, the statement that the structure
will have an "entry grade to three levels above grade" is unclear. Presumably, this means that the
structure will be four stories high. The FEIR regards this height and mass a benefit because it is
"providing another opportunity for elevated coastal view opportunities of the bay and surrounding
coastal vistas." Id. If this large structure will provide such viewing opportunities from the top floor,
then it will impact views from other areas including the residential areas across the Bay and
Channel.
Also, the PCDP states the reason for this semi - subterranean level is "to minimize height and
bulk of parking structure." PCDP, page 25. Yet, nowhere does the PCDP nor the DEIR/FEIR
discuss the exact bulk of this structure which needs to be minimized. Of course, this semi -
subterranean level is required only "if feasible." Given that the depth to groundwater in this part
of the Back Bay is quite high, it seems unlikely that this subterranean level will be feasible. Hence,
the parking structure will be huge and will have aesthetic and other impacts. However, if the
subterranean level is feasible, then it likely will have impacts on hydrology because it will intercept
the high groundwater in the area.
Because the residential dus and commercial square footage wrap around the parking
structure, the size of the entire building will have impacts. But again, the DEIR/FEIR and the DCDP
provide that the Project:
"would allow for coastal dependent and coastal related uses, including up to 61,534
square feet of visitor ]serving retail/ restaurant/marine boat sales, rental and service
repair and recreational commercial (kayak and stand -up paddle board rentals); a new
32,500 square foot full - service enclosed dry stack boat storage with racks or bays (up
to a maximum of 140 boat spaces) and launching facilities; as well as a maximum
of 49 residential units within a maximum of 85,644 square feet integrated in either
two levels of residential over ground floor commercial uses, wrapped around a
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parking structure with three levels above ground and one semi - subterranean level,
or in a three level flat configuration adjacent to the northwest bayfront."
Page 2 -13. Although neither the DEIR/FEIR nor the PCDP provide for a limit on the square
footage of this retail, residential, parking structure, it will be massive. As discussed below, this bulk
will have significant impacts.
The DEIR provides as Figure 2 -6 a "Conceptual Site Plan." This means that it is simply the
concept; it is not regulatory at all. The Project requires much more specification so that the public,
public officials and the developers all share the same vision and expectations. Of course, this
Conceptual Site Plan is nothing but a plan. It may change with the other part of the Project: the Site
Development Review approvals. This should all be analyzed in the DEIR/FEIR: it is a part of this
Project.
The DEIR suggests that:
The PCDP establishes various development standards regulating setbacks, building
heights, residential units, parking, landscaping, seawalls/bulkheads, diking and
filling /dredging, bayfront promenade /trail, vehicular circulation, lighting, signs,
utilities, sustainability features, and public improvements. The various development
standards are discussed individually below.
Page 2 -16. Unfortunately, various little of these standards are regulatory. For instance, the DEIR
explains the landscaping standard:
"A detailed landscape and irrigation plan prepared by a licensed landscape architect
will be required for future development on -site and submitted as part of a future Site
Development Review application."
Page 2 -21. This is not a standard: it is impermissible deferral of this crucial Project feature.
Regarding parking, the DEIR states:
"The conceptual parking plan for the future development of the site is illustrated
below in Figure 28, Parking Plan.
Page 2 -20. It continues:
"Off- street parking requirements provided in Table 2 -3 above may be reduced with
the approval of a Conditional Use Permit based upon complimentary peak hour
parking demand of uses within the future development."
Id. Again, a conceptual parking plan with a parking management plan where parking may be
waived. All of this is part of the Project. CEQA requires that all of this be analyzed in the FEIR.
The DEIR/FEIR fails to provide sufficient details for full environmental review.
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The DEIR discusses the `Bayfront Promenade." The Promenade is located next to Newport
Bay, but neither the DEIR/FEIR nor the PCDP discuss the materials and drainage for this waterfront
feature. The materials must be pervious so that drainage is not discharged into the Bay.
The Project Description is inadequate: it improperly segments the Project in several different
ways; and it lacks specifics so that elected officials, the public and the developers /applicant can
understand the nature and extent of the Project. The DEIR/FEIR must be revised and recirculated
for public comment and review to correct these deficiencies in the Project Description.
III. The Cumulative Impacts Projects are Incomplete and Must be Revised.
Chapter 3 is entitled "Basis for Cumulative Analysis." CEQA Guidelines section 15130
discusses the requirements of the cumulative impacts analysis. It requires two methods of analyzing
cumulative impacts of the Project and other projects: a list of past, present and probable future
projects; or a summary of projections contained in the General Plan. The DEIR uses a combination
of both methods.
Unfortunately, the list does not include the future project that is the update of the Land Use
Element for the City. This project began in the summer of 2013, months before the release of the
DEIR for the Project. Chapter 3 and the DEIR/FEIR must be revised to list this present project,
conduct a full cumulative impacts analysis for the DEIR/FEIR and recirculate the document for
public review and comment.
IV. Chapter 4, the "Environmental Analysis,"
A. Introduction: the Project Description Undercuts the Impacts Analysis.
As discussed above, the Project Description is the key to any EIR. Unfortunately,
the DEIR/FEIR's Project Description is segmented, vague and overly general, and fails to comply
with the requirements of CEQA. Because Chapter 4 assesses the impacts of this inadequately
described Project, Chapter 4 fails to provide a thorough and adequate assessment of the impacts of
the Project.
B. The Project's Substantial Aesthetics Remain Unanalyzed and Unmitigated.
Section 4 A addresses the Project's Aesthetic Impacts. Unfortunately, it is
misguided and incomplete analyze, and leaves significant aesthetic impacts without mitigation.
In discussing the Environmental Setting, the DEIR ignores important aesthetic considerations
and fails to recognize important aesthetic restrictions for the Project Site. First, under the
Regulatory Framework, the DEIR recognizes that the Project is in the Coastal Zone. The DEIR
states:
"The California Department of Transportation (Caltrans) defines a scenic highway
as any freeway, highway, road, or other public right -of -way, that traverses an area
of exceptional scenic quality. Suitability for designation as a State Scenic Highway
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is based on vividness, intactness, and unity. There are no officially designated scenic
highways within the City of Newport Beach."
DEIR, page 4.A -1. This is true. The only designated scenic highway in Orange County is the
beautiful stretch of highway 4.2 miles long from State Route 55 to east city limit of Anaheim. See
http: / /www.dot.ca. og v /hq /LandArcti/seenic /schwa . One wonders why this stretch of highway
with views of the Santa Ana River channel is scenic when the views from Coast Highway over the
Project site to the upper and lower Newport Bay is not so designated.
Nonetheless, although the FDIR fails to recognize it in the discussion on page 4A -2, the
City's General Plan officially designated much of Coast Highway as a Coastal View Road including
the stretch of East Coast Highway from Bayside Drive to Dover Drive which is in the vicinity of the
Project. In its discussion of existing conditions, the DEIR recognizes that this portion of East Coast
Highway is a Coastal View Road. See DEIR, page 4A- 6.
In addition, although the DEIR recognizes that the Project site is under utilized, Section 4.A
states that the Project site has nighttime lighting including street lights and building facade lighting.
This is an exaggeration. The Project site contains little lighting compared to the Project's lighting,
glare and spill.
In order to analyze the aesthetic impacts of the Project, the DEIR uses visual simulations of
the Conceptual Plan which is merely a painting; it is not regulatory as discussed above. This
undercuts the accuracy of the DEIR's analysis of the Project's aesthetic impacts. More importantly,
the mass and height of the buildings will impact views. The Applicant should provide a story pole
analysis of the Project dimensions.
In Response to Comment I -2, the FEIR states:
"For example, the analysis presented in Section 4.A, Aesthetics/Visual Resources,
of the Draft EIR relies in part on visual simulations that were prepared for a
conceptual project based on the development standards and design guidelines
contained in the proposed PDCP, which are considered representative of a future
project given the allowable density, setbacks, building heights, architectural styles,
and other design elements that would be implemented as part of future
development."
FEIR, page 2 -55. However, the City well knows the limitations of such conceptual plans. In 2011,
the City adopted a conceptual plan for Lido Village and later adopted Guidelines for that
development. All of this occurred without environmental review. Further, in December 2012, the
City released an italicized original of the Mitigated Negative Declaration for a similarly vague
project, the City Hall Re -Use Project. The Planning Commission was very critical of the vagueness
and recommended that the City wait until it had a developer and a precise project. However, Staff
never responded to all comments on the DMND, never issued a Final MND (only a Final Draft
MND), never took the MND to the City Council, and of course, it was never certified. Now, the
concept plan is gone, and the City has decided go forward with the Lido House Hotel which has
begun environmental review. The Applicants and the City would do well to follow this example:
the FEIR cannot be certified.
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Because conceptual plans for the Back Bay Landing, like the conceptual plan for Lido
Village, are not regulatory, they mean nothing. They can change on a whim. Environmental review
based on such concept plans is worthless. Aesthetic analysis is particularly bad because the concept
plan does not show actually how the mass and size of the structures including the parking structure,
the view tower, the residential structures and the retail space.
In Response to Comment N -18, the FEIR states:
"As stated on pages 4.A 10 and 4.A I 1 in Section 4.A, Aesthetics/Visual Resources,
of the Draft EIR, effects on private views are not considered significant under
CEQA, though the Draft FIR does acknowledge that future development of proposed
uses could partially obstruct private views at some locations."
FEIR, page 2 -93. However, the Court of Appeal has disagreed:
"Thus, aesthetic issues, such as public and private views, are properly studied in
an EIR to assess the impacts of a project. (§ 21100, subd. (d); Ocean View Estates
Homeowners Assn., [493] Inc. v. Montecito Water Dist. (2004) 116 Cal.AppAth
396, 402 -403 [10 Cal.Rptr.3d 451].)"
Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal. App. 4th 477, 492 -493
(Emphasis supplied). Because the FEIR admits that the Project will have unmitigated aesthetic
impacts, it must identify these impacts, propose adequate mitigation, and be recirculated for public
review and comment.
In Response to Comment N -19, the FEIR discusses the lighting requirements for the tower
as set forth in the PCDP and notes that there will be subsequent Site Development Review. This
means several things. First, the PCDP does not really regulate lighting. It simply defers the
analysis. Second, again, the FEIR admits the project segmentation.
Moreover, the Project is below and around many residences. These residences will be
affected by any nighttime lighting of the tower or other features of the Project. The FEIR should
be revised to discuss these impacts, propose mitigation and be recirculated for public review and
comment.
Impact No. 4.A -1 asks if the Project will have an impact on scenic vistas. The DEIR
minimizes the scenic character of East Coast Highway in the vicinity of the Project. As noted above,
the simulations are worthless. A superior method to assess aesthetic impacts are the use of story
poles which the City should require for this Project. Nonetheless, assuming that the simulations are
somewhat accurate, Simulation No. 7 shows that the Project will impair views of the Bay from East
Coast Highway, a scenic roadway. This is a significant aesthetic impact which must be analyzed
and mitigated.
Further, Comment C -4 noted that the tower which exceeds the Shoreline Height limits will
affect coastal views. As indicated above, the PCDP contains no limitation on the breadth or mass
of the tower. As indicated in the FEIR, its analysis is the worst case scenario: on the worst case
scenario, a broad and high tower will significantly affect coastal views. As Comment C -4 urges, the
FEIR must be revised to include an alternative with the tower within the current height limits.
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The Project will have significant aesthetic impacts. The DEIR/FEIR must be revised to
analyze such impacts, must propose mitigation and alternatives to avoid such impacts, and must be
revised and recirculated for public review and comment.
C.
Section 4.B of the DEIR attempts to address the Project's impacts on Air Quality.
It fails. First, as indicated above, given that the exact character of the Project remains unclear, it is
impossible to assess the construction impacts or the operational impacts of the Project on Air
Quality.
Second, the DEIR throughout characterizes the Project site variously: sometimes it regards
the Project site a underutilized. Other times, it regards it as:
"Given the developed nature of the project site and the absence of native habitat or
sensitive species on the site, the evaluation ofterrestrial biological resources focused
on potential impacts to nesting migratory birds due to tree removal in association
with construction activities."
DEIR, page 4.0 -13. If the site is developed, then demolition activities will be significant and will
likely generate substantial air quality impacts. However, Section 43 does not seem to appreciate
the developed character of the site and erroneously concludes that such activities will not generate
Air Quality impacts.
Third, as noted above, the Project is adjacent to the OCSD's Bitter Point Pump Station. The
presence of the Project next to this sewage pump station will have Air Quality impacts, because it
will expose Project residents, shoppers and diners to offensive odors. The DEIWFEIR fails to
provide a full analysis of this impact.
Impact No. 4.B -5 addresses whether the Project will "create objectionable odors affecting
a substantial number of people." The DEIR concludes that the Project will not create such odors.
Regarding the Bitter Point Pump Station, which as indicated above was completely rehabilitated in
2012, the DEIR states:
"Since the project site is adjacent to the OCSD wastewater pump station, the PCDP
requires that the future development project be required to install odor filters, such
as activated carbon filters or similar, to filter the indoor air in air conditioned spaces
within the development and alleviate any potential odors associated with the facility.
This requirement would reduce the potential for nuisance odors in indoor air to a
less than significant level."
DEIR, page 4.B -33. However, a requirement to filter indoor air does nothing to mitigate the impact
caused by the Project bringing residents, shoppers, and diners including outdoor diners in the
vicinity of a sewage pump station. The Project will create air quality impacts which are not
mitigated.
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As indicated above, in Comment F -2, OCSD expressed concerns about these impacts and
about the problems these will cause for its operations. Response to Comment F -2 noted that
relocation of the pump station is allowed but not required by the PCDP. This creates several
problems. First, the PCDP and the FEIR recognize that this is a serious impact which requires
mitigation. Second, because the PCDP does not require relocation of the pump station, the impact
remains unmitigated. The FEIR should be revised to address this serious air quality impact: No one
likes being near a sewage pump station. Placing residential, retail, and outdoor restaurant uses in
the vicinity creates a significant impact which requires mitigation.
Because of these unaddressed impacts on Air Quality, the DEIR/FEIR must be revised and
recirculated for public review and comment.
D.
Section 4.0 of the DEIR addresses Biological Resources. The DEIR recognizes that
the area has a wealth of biological resources. The Project Site is partially within the Upper Newport
Bay Marine Conservation Area ( "MCA ").
Comment I -3 noted that Project construction would likely adversely affect eelgrass resources
in the area and recommended instituting a monitoring program during construction so that any
construction impacts could be minimized. Response to Comment I -3 states:
"The buoy locations will be based on the results of the pre construction eelgrass
survey completed during the eelgrass growing season (generally March through
October) and in compliance with the Southern California Eelgrass Mitigation Policy
(SCEMP), or other applicable plan. Additional monitoring may be coordinated with
the regulatory agencies during the project' entitlement process, but at this time no
additional eelgrass surveys are being proposed during construction."
DEIR, page 2 -58. This is curious language: the DEIR is part of the entitlement process and the City
is a regulatory entity for this Project. What needs to be coordinated? Obviously, the Project with
its new launching facility and bulkheads has the potential to damage eelgrass resources during
construction. The City has an active eelgrass management program. The City as a regulatory
agency should require additional monitoring during construction to avoid construction activities
damaging scarce eelgrass resources.
Comments E -3 through E -4 notes that the DEIR fails to identify precisely Project impacts
to waters of the United States and wetlands. Response to Comments E -3 to E -4 simply states that
it is too early to identify those resources because this awaits the further entitlement process: it
awaits the other piece of the Project. Again, the FEIR's piecemealing of the Project undercuts the
impacts analysis. Moreover, given that the FEIR states that it is analyzing the worst case scenario,
Response to Comment I -2, FEIR page 2 -55, then the FEIR must be revised to assume maximum
Project impacts to wetlands and jurisdicational waters. These will be extreme given the water front
development, substantial additions of hardscape, the construction of the bulkheads and the boat
launching facility. The FEIR must be revised to study the impacts of the full Project in the worst
case scenario, analyze the severity of those adverse impacts, and propose adequate mitigation. Of
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course, in order to do this, the FEIR must be revised and recirculated for public review and
comment.
Comment E -5 expresses concerns about the construction impacts on coastal resources and
shellfish; Comment E -6 asks about the impacts of the dredging and other construction activities
given existing pollutants in the Bay. As before, Response to Comment E -5 states that this must
await further Project specification; Response to Comment E -6 states:
"Given that the various offshore habitats are subject to ongoing natural processes that
change the extent and location of each habitat type over time, as well as the lack of
specific information about future development on site, it is not appropriate to
speculate on the specific potential effects of the future project on such resources in
the EIR."
FEIR, page 2 -32. This is incorrect. The DEIR/FEIR is analyzing the "worst -case scenario." The
FEIR does not engage in speculation on such an analysis; the analysis is incomplete because it is not
performed.
Further, Guidelines section 15144 provides:
"Drafting an FIR or preparing a Negative Declaration necessarily involves some
degree of forecasting. While foreseeing the unforeseeable is not possible, an agency
must use its best efforts to find out and disclose all that it reasonably can."
The City must do the appropriate forecasting of impacts. The problem here is that the FEIR fails
to conduct the appropriate studies regarding resources and pollutants in the vicinity of the Project.
Moreover, since the FEIR uses the worst case scenario analysis, it must assume maximal impacts
to shellfish and pollutants in the Bay, and then propose adequate mitigation measures.
Comment I -4 addresses the need for a 100 foot buffer between the Project and jurisdictional
wetlands. Response to Comment I -4 is unusual:
"The facts documented in the Draft EIR demonstrate that no significant wetland
impacts will occur and there will be no significant impacts to organisms using the
wetlands. Therefore, no additional buffer is required to protect the biological
integrity of the wetlands and the project is consistent with the purposes of the buffer
articulated in the guidance document attached to the continent."
FEIR, page 2 -59. Given that throughout when pressed with details about protecting biological
resources and wetlands, the FEIR states that it is too early to determine because the exact character
of the Project is not known. But here the Project is known, the "facts" are known and there is no
reason for a 100 foot buffer.
Response to Comment I -4 continues in this unusual vein:
"The project is consistent with Coastal Land Use Plan Policy 4.2.2 3, which provides
that smaller wetland buffers may be allowed where it can be demonstrated that a 100
foot wide buffer is not possible due to site specific constraints and the narrower
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buffer would be amply protective of the biological integrity of the wetland given the
site specific characteristics of the resource and of the type and intensity of
disturbance. Given the developed nature of the project site and existing proximity
to potential wetland resources, the associated lack of undeveloped land adjacent to
the waterfront that could be utilized for a buffer area, the limited nature of project
related physical impacts to the majority of the waterfront (aside from the proposed
water inlet), and the fact that providing such a buffer would render the project
infeasible, it is determined that a 100 foot wide buffer is not biologically required nor
is it possible to implement such a buffer and meet the project objectives, due to site
specific constraints."
Id.
Since the exact character of the Project is unknown to the drafters of the DEIR/FEIR, it is
unclear how any site specific constraints could affect the Project and be used as a justification for
cutting the need for the 100 foot buffer.
This cuts the exact opposite of the way indicated in the DEIR/FEIR. Given the uncertainty
of the Project and the fact that the FEIR uses the "worst- case" scenario, the 100 foot buffer is
necessary because the Project may endanger wetlands and it is unclear that there are any site specific
constraints that will justify cutting back on the buffer.
E.
The Project Site has a high groundwater table which varies due to tidal influences.
The Study indicated that depth to groundwater was as high a six feet below ground surface. The
partially subterranean garage is not feasible at these depths and should be eliminated from the
Project. That is, the Project's parking structure will be high and massive and will sit at grade.
In addition, due to this high groundwater, the Project site will be subject to liquefaction.
This is an impact on geology and soils. The DEIR indicates that the Project will comply with
building standards for such hazards. Nonetheless, the DEIR/FEIR does not include a full study of
such dangers. It should be revised to include such a study.
In order to address both of these issues, the DEIR/FEIR must be revised and recirculated for
public review and comment.
F.
The DEIR admits that, because the Project will require amendments to the General
Plan, the Local Coastal Plan and Zoning Code, the Project is not consistent with current land use
requirements. However, it maintains that, because it seeks to amend these requirements, the Project
will be consistent with the amended regulatory requirements.
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This puts the cart before the horse. The question is: is it a good idea to amend the General
Plan, the Local Coastal Plan and Zoning Code, and to allow the transfer of residential do's to the
site? The DEIR does not answer these questions.
Indeed, Comment C -2 recognizes that residential do's in the Coastal Zone are a lower
priority than other visitor serving uses and suggests that other visitor serving uses including vacation
stay or hotel be considered at the site. The Response to Comment C -2 ignores this suggestion and
again relies on its familiar refrain that it is too early to tell. The City should take Comment C -2's
suggestion seriously and revise the FEIR to include an alternative with visitor serving hotel uses
rather than residential uses.
Moreover, the question raised here is: is it good policy to grant all of these changes to allow
limited residential du's together with retail and restaurant. Similar uses adjacent to each other have
caused conflicts all over the City including the Balboa Peninsula.
In addition, neither the FEIR nor the DEIR discuss the findings necessary for such a transfer.
Section 20.46.050 of NBMC requires the following findings for such transfers:
"When approving a transfer of development intensity the Council shall make all of
the following findings:
A. The reduced density /intensity on the donor site provides benefits to
the City, for example:
111. The provision of extraordinary open space, public view corridor(s),
increased parking, or other amenities;
"2. Preservation of an historic building or property, or natural resources;
"3. Improvement of the area's scale and development character;
"4. Reduction of local vehicle trips and traffic congestion; and
"5. More efficient use of land.
`B. The transfer of development rights will not result in any adverse
traffic impacts and would not result in greater intensity than
development allowed without the transfer and the proposed uses and
physical improvements would not lend themselves to conversion to
higher traffic generating uses;
"C. The increased development potential transferred to the receiver site
will be compatible and in scale with surrounding development and
will not create abrupt changes in scale or character; and
"D. The receiver site is physically suitable for the development proposed
taking into consideration adjacent circulation patterns, protection of
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significant public views and open space, and site characteristics,
including any slopes, submerged areas, and sensitive resources."
The City cannot make any of these findings. Creating the two new General Plan Anomalies,
Nos. 80 and 81, will increase the densities on both sites, not decrease densities. It will not protect
a historic building, reduce traffic on the sending site (it will increase traffic). It will not improve the
area's scale and developmental character: the proposed Project is out of character with the
surrounding uses; none of them is at 35 feet with the exception of the new project at the corner of
Coast Highway and Dover Drive known as Mariner's Point. This project itself shows how out of
character the Project will be.
Traffic will get worse with the transfer. The increased development potential at the Project
site will create abrupt changes and scale and character. As discussed above, the FEIR maintains that
a 100 foot buffer is not necessary because of site specific constraints. However, the transfer creates
these constraints, and therefore the Project does not quality for the transfer.
To allow the transfer will violate the NBMC and will create substantial and unanalyzed land
use of impacts. The DEIR/FEIR to analyze these impacts, provide mitigation and /or alternatives.
Because of these land use impacts which remain after mitigation, the DEIR/FEIR must be
revised to consider and analyze fully the Project's land use impacts, to propose necessary mitigation
and/or alternatives, and to receive additional public review and comment.
G. The Introduction of Residential Uses, Retail. Restaurant and Other
Commercial Uses at the Project Site Will Create Significant Noise Impacts.
The City has already experienced significant noise impacts as a result of commercial
and restaurant activities at the Dunes Resort site which is adjacent to the Project Site. The City
knows that the Project has the potential to create noise impacts at residential areas in Dover Shores
and in Upper Castaways. Neither the DEIR nor the FEIR deal with these sensitive receptors and the
potential for the Project to adversely affect these off site residents. The DEIR does provide for a
sound study later and noise attenuation for Project residents. This is insufficient.
The PCDP should require noise monitors be installed at the perimeter of the Project site with
a person or guard who is charged with monitoring off site noise. The PCDP should require that if
noise rises above levels allowed by the NBMC, that noise source shall immediately cease. Future
violations would give rise to a prohibition of noise generation at the site. Also, the PCDP should
prohibit amplified music and entertainment on the Project site and prohibit all live entertainment.
H. The Project Will Create Significant Traffic Impacts Which Undercut
the Entire Project.
As noted above, the FEIR retreats when asked specifics about the Project.
Unfortunately, the Traffic Analysis requires specifics in order to forecast Project traffic and trips.
The Project includes various legislative approval including the creation of two General Plan
Anomalies Nos. 80 and 81. As indicated above, this is an incorrect approach: creating Anomalies
for new uses was not contemplated by the 2006 General Plan.
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Rush Hill, Mayor
Members of the City Council -23- February 10, 2014
Nonetheless, although the Section 4.M and the Traffic Impact Analysis, Appendix K discuss
the traffic impacts of Anomaly No. 80 on the Project Site, they ignore the traffic generated by the
new Anomaly No. 81 with its additional 21 do's not currently existing. Nowhere does the traffic
analysis discuss these new 21 do's and the traffic that will be generated by those units.
Moreover, Appendix C for the Mariner's Pointe Mitigated Negative Declaration entitled
"Traffic Impact Analysis" shows that the existing traffic at Dover and Coast Highway function at
Level of Service ( "LOS ") "C" during afternoon peak hour trips whereas the Traffic Impact Analysis
for the Project indicates that it functions at LOS B. Exhibit "C" attached hereto is an excerpt from
the Traffic Impact Analysis for the Mariner's Pointe MND. This discrepancy must be resolved.
Moreover, it is unclear whether the DEIR or the Traffic Impact Analysis fully appreciated
the impacts of the Project, the Mariner's Pointe Project, and the new Dunes Hotel project in its
traffic forecasts. With two new projects bringing traffic onto a small street such as Bayside Drive
and Mariner's Pointe down the way, traffic improvements on Coast Highway and Bayside Drive
must occur. Unfortunately, neither the DEIR nor the FEIR provide any basis for such
improvements. This cannot be right. The FEIR must be revised to address the full traffic impacts
of the Project, provide mitigation or alternatives, and recirculate the document for public review and
comment.
Finally, we must note Response to Comment N -13. Comment N -13 raised community
concerns about traffic during construction activities. Rather than politely say that the Project is not
yet finalized, so we don't know the exact character of such activities, the FEIR flatly states in
Response to a comment by a City Committee:
"The community's degree of concern regarding project related traffic is not germane
to the EIR. This comment does not raise any environmental issues or specific
comments on the Draft EIR. As such, no further analysis is required."
FEIR, page 2 -93. This raises several issues. First, the degree of community concern is a relevant
fact in assisting in determining significance. Second, but more importantly, the tone of this
Response to Continents does not serve the informational character of the FEIR. Please advise
consultants to refrain from such comments.
V.
As noted throughout, the Project Description is the key to the DEIR, to any EIR. Section 2,
the Project Description, for this DEIR had restrictive formatting: the .pdf file was locked. It was the
only part of the entire DEIR/FEIR that was locked so that it was difficult to access and impossible
to search. In the past, the City has published environmental documents which were published in
their entirety in italics. Although this DEIR was not in italics, locking the document to prohibit
searching is inappropriate and lessens the public's ability to review and understand the document.
Please refrain from such formatting errors in the revised EIR.
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650.5550
Fax: (949) 650.1181
Rush Hill, MaSor February 10, 2014
Members of the Ciry cuuncll -24-
VI. Conclusion
Respectfully, the City Council cannot certify the FEIR for the above discussed reasons. The
Project Description is incomplete and is piecemealed in violation of CEQA requirements. The
DEIRNEIR leave unanalyzed several impacts including aesthetics, air quality, geology and
hydrology, noise, land use, traffic and others. Further, these impacts are unanalyzed and
unmitigated. The FEIR must be revised to include a complete Project Description and to address
and propose mitigation or alternatives for these unaddressed impacts.
We look forward to this rejection. Thank you, again, for the opportunity to comment on the
captioned Project.
Please provide us with notice of any responses to these comments and with notices of any
and all hearings on the captioned project. Further, this is also a written request for notices pursuant
to the California Environmental Quality Act, specifically, Public Resources Code Section 21092.2.
Specifically, pursuant to Section 21092.2, we request that you provide us with a copy of any and all
notices required pursuant to Public Resources Code Section 21080.4, 21083.9, 21092, 21 108 and
21 152 relating to the captioned Project.
Of course, should you have any questions, please do not hesitate to contact me.
Sincerely,
FF C S O awk RO C. HAWKARobert INS
C. Hins
RCH /kw
Enclosures /Exhibits as indicated
cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only)
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 6505550
Fax: (949) 6501181
Recording Requested By:
ORANGE COUNTY SANITATION DISTRICT (OCSD)
This docUroen+ is recorded for the benefit of OCSD and
Is exempt from fees (Government Code Section 27383',
When Recorded Mail To:
Name oranga county sanitaftDism
NOTICE IS HEREBY GIVEN THAT:
Exhibit "A"
Recorded in Official Records, Orange County
Tom Daly, Clerk- Recorder
IlllllllIIIIIlllllllllllllllllllllllllllllllll111111llli NO FEE
*$ 8 0 0 0 5 3 1 4 3 1 7$*
201200068542011:52 am 11/07/12
62 417 N12 2
0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00
NOTICE OF COMPLETION C 0 N F 0 R M E D COPY
(CA CH Code § §s18oA190,8100.8118,9200.9208) Not Compared with Original
1. The undersigned is an owner of an interest of estate in the hereinafter described real property, the nature of which interest or estate is:
In Fee (e.g. fee, leasehold, joint tenancy, etc.)
2. The full name and address of the undersigned owner or reputed owner and of all co -owners or reputed co- owners are:
Name Sheet and No. City State
Orange County Sanitation District 10844 Ellis Avenue Fountain Valley Califomia 92708.7018
3. The name and address of the direct contractor for the work of improvement as a whole is:
l0ewlWass, A Joint Venture 10704 Shoemaker Avenue, Santa Fe Springs, CA 90670
4. This notice is given for (check one):
0 Completion of the work of improvement as a whole.
❑ Completion of a contract for a particular Portion of the work of improvement (per CA Civ. Code § 8186).
5. If this notice is given only of completion of a contract for a particular portion of the work of improvement (as provided in CA Civ. Code
§ 8186), the name and address of the direct contractor under that contract is:
WA
6. The name and address of the construction lender, If any, is:
All or a portion of this construction project may have been financed from proceeds with US Bank, Corporate Trust Services,
633 W. Fifth St, 24th Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Department 120 South San Pedro St,
Suite 400, Los Angeles, CA 90012 acting as Trustee.
7. On the 6th day of November 2012, there was completed upon the herein described property a work of improvement as a whole
(or a particular portion of the I'work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided:
8.
10.
The real property herein referred to is situated in the City of Newport Beach . County of Orange
State of California, and is described as follows:
Contract No. 5-49 Replacement of Bitter Point Pump Station
The street address of said property is:
5904 West Coast Highway, Newport Beach, CA 92663
N this Notice of Completion is signed by the owner's successor in interest, the name and address of the successor's transferor is:
James D. Herberg, Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, CA 92708 -7018
1 certify (or declare) under penalty of perjury under the laws of the State of California that the foreg� true and coned
Date: By:
gnature of Owner of Owners A th rized Agent
James D. Herberg
Print Name
Page 1 of 2
ReAsion 102312
Attn: Clerk ofthe Board
Street
Address
10894 Eats Avenue
City &
Fountain Valley
State
CANT08-7018
NOTICE IS HEREBY GIVEN THAT:
Exhibit "A"
Recorded in Official Records, Orange County
Tom Daly, Clerk- Recorder
IlllllllIIIIIlllllllllllllllllllllllllllllllll111111llli NO FEE
*$ 8 0 0 0 5 3 1 4 3 1 7$*
201200068542011:52 am 11/07/12
62 417 N12 2
0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00
NOTICE OF COMPLETION C 0 N F 0 R M E D COPY
(CA CH Code § §s18oA190,8100.8118,9200.9208) Not Compared with Original
1. The undersigned is an owner of an interest of estate in the hereinafter described real property, the nature of which interest or estate is:
In Fee (e.g. fee, leasehold, joint tenancy, etc.)
2. The full name and address of the undersigned owner or reputed owner and of all co -owners or reputed co- owners are:
Name Sheet and No. City State
Orange County Sanitation District 10844 Ellis Avenue Fountain Valley Califomia 92708.7018
3. The name and address of the direct contractor for the work of improvement as a whole is:
l0ewlWass, A Joint Venture 10704 Shoemaker Avenue, Santa Fe Springs, CA 90670
4. This notice is given for (check one):
0 Completion of the work of improvement as a whole.
❑ Completion of a contract for a particular Portion of the work of improvement (per CA Civ. Code § 8186).
5. If this notice is given only of completion of a contract for a particular portion of the work of improvement (as provided in CA Civ. Code
§ 8186), the name and address of the direct contractor under that contract is:
WA
6. The name and address of the construction lender, If any, is:
All or a portion of this construction project may have been financed from proceeds with US Bank, Corporate Trust Services,
633 W. Fifth St, 24th Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Department 120 South San Pedro St,
Suite 400, Los Angeles, CA 90012 acting as Trustee.
7. On the 6th day of November 2012, there was completed upon the herein described property a work of improvement as a whole
(or a particular portion of the I'work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided:
8.
10.
The real property herein referred to is situated in the City of Newport Beach . County of Orange
State of California, and is described as follows:
Contract No. 5-49 Replacement of Bitter Point Pump Station
The street address of said property is:
5904 West Coast Highway, Newport Beach, CA 92663
N this Notice of Completion is signed by the owner's successor in interest, the name and address of the successor's transferor is:
James D. Herberg, Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, CA 92708 -7018
1 certify (or declare) under penalty of perjury under the laws of the State of California that the foreg� true and coned
Date: By:
gnature of Owner of Owners A th rized Agent
James D. Herberg
Print Name
Page 1 of 2
ReAsion 102312
VERIFICATION
I, James D. Herbem . state: I am the Assistant General Manager (°Owner, "Pretidenr,
°Authorized Agenr, °Partner°, etc.) of the Owner identified in the foregoing Notice of Completion. I have read said Notice of Completion and know the
contents thereof, the same is hue of my own knowledge.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Executed on 11 ,o
?-`o1Z , (date),
of Owner or
PROOF OF SERVICE DECLARATION
Agent
(city), Caffomia.
1 t{!� {' l tc)JG M E�Fkt�N declare that I served copies of the above NOTICE OF COMPLETION, (check
appropriate box):
a. ❑ By personally delivering copies to (name(s) and titles)
of person served) at (address),
on (date), at .m. (time)
b. By Registered or Certified Mall, Express Mail or Overnight Delivery by an express service cancer, addressed to each of the
parties at the address shown above on NoveA-'o- 7 -261A (date).
C. ❑ By leaving the notice and mailing a copy in the manner provided in § 415.20 of the California Code of Civil Procedure for service of
Summons and Complaint in a Civil Action.
I declare under penalty of perjury that the foregoing is true and coned.
Signed at Fountain Valley W, Callfamia, on I�)6,4 M-R i ao U (date).
(Signior# of Person Making Service)
YAI PHONGMEKH14
Commission # 1885193
I -o Notary Public • California z
z Orange County
My Comm. Expires Apr 8. 201a r
STATE OF CALIFORNIA
COUNTY OF ORANGE
On November 7 2012 (date), before
me, Yai Phonomekhin , Notary Public (name and
title of officer) personalty appeared James D. Herbern who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/sheAhey executed the same in hisfAeNtheiF
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
Witness my hand and official seal. q� %J 9 1
Signature I�
Page 2cf 2 Revision 102312
Phongmel(hin, Yai
From:
Phongmekhin, Yai
Sent:
Wednesday, November 07, 2012 1:35 PM
To:
Ayala, Maria; Dix, Martin; Cuellar, Raul; Dake, Yvonne; Stanford, Cristina; Hernandez,
Kenneth
Cc:
Prater, Gary; Lapus, Ludwig; Ambrose, Cindi; Rogers, Lisa; Kleinman, Randall; Herberg,
Jim; Haynes, Tod; Fisher, Dean; Halverson, David (O &M); Larkin, Mike; Millea, Kathleen;
Bauer, Wesley; Lapite, Elizabeth; Spengler, Michelle; Kardos, Julie
Subject:
5 -49 & 5 -50 Notice of Completions
Attachments:
5 -49 Notice of Completion.pdf; 5 -49 Letter to Contractor & Trustee Banks Sending
Copy of NOC.pdf; 5 -50 Notice of Completion.pdf; 5 -50 Letter to Contractor & Trustee
Banks Sending Copy of NOC.pdf
Good Afternoon,
The Notice of Completions for Contracts 5 -49 & 5 -50 were filed with the Orange County Clerk Recorder today.
• Contract No. 5 -49 /Replacement of Bitter Point Pump Station filed at 11:52 am, ID# 2012000685420
• Contract No. 5 -50 /Replacement of the Rocky Point Pump Station filed at 11:52 am, ID# 2012000685421
Maria,
The original Notice of Completions will be mailed to your office from the Orange County Clerk Recorder.
Notes: The letter to Contractors with copies of the conformed NOC were mailed to Kiewit /Mass, A Joint Venture via
certified mail today. In addition, we also sent letters to the Trustee Banks (US Bank & Union Bank) with copies of the
NOC via certified mails according to NOC item #6.
Please see the documents attached for your record.
Yai Phongmekhin
Contracts, Purchasing &
Materials Management Division
Extension 7841
ig We're here fory0LL
ORANGE COUNTY SANITATION DISTRICT
Memorandum
DATE: August 25, 2010
TO: James D. Ruth
General Manager
FROM: Marc Dubois
JP-
Contracts & Purchasing Manager
SUBJECT: Removal of the Closeout Agreement Requirement
Issue background:
As part of the ongoing effort to streamline and optimize existing processes and resources
Contract Administration and Engineering staff have reviewed the Public Works projects
Administrative Closeout Process. The review included an analysis of the current policies
and procedures, solicitation documents, current OCSD practices and project controls
systems which have been implemented in the most recent years. The findings and
recommendations of OCSD staff were further reviewed by OCSD General Counsel.
Counsel has concluded that OCSD can dispense with the Closeout Agreement without
affecting the District's legal rights because OCSD rights will remain protected under the
General Conditions of the current solicitations documents and /or state law.
Recommendation:
Therefore, it is staffs recommendation to immediately implement elimination of the closeout
agreement as redundant. Implementation of this recommendation will result in an
immediate reduction of administrative costs and project schedules as they relate to the
closeout process. Staff is seeking the General Manager's concurrence with this
recommendation.
Proposed Path Forward:
Pursuant to the General Manager's concurrence with the above referenced
recommendation, staff intends to proceed with the removal of any references to the
Closeout Agreement which will result in the modifications to the following documents:
- Delegation of Authority
- Invitation for Bid (IFB) boilerplate (GC -45- and 48)
- Construction Agreement
- Closeout procedure
Once these documents are modified by staff, they will be presented to OCSD management
for final approval. The document modification and approval process is anticipated to take
2 -3 months from the date of this memo.
Page 2
August 25, 2010
Furthermore, pursuant to the General Manager's concurrence with the recommendation in
this memo, staff intends to remove any references to the Closeout Agreement from all
current construction contracts which have been let to date by submitting a change order for
the General's Manager's approval.
Concurred
MD:NKD:ms
EDMS: 003921769
do
cc: Jim Herberg, Lorenzo Tyner, Tod Haynes, Cindi Ambrose, Chris Cervellone, Michael
Dorman, Christina Stanford
Exhibit "B"
City Council
Attachment CC2
Newport Dunes Map
41
42
Newport Dunes
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eayside
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Future Restaurant
Site (Parcel B -2)
Marina Clubhouse
Family Inn
Site
(Parcel C)
RV Park
Back Bay
Science Center
Boat
Storage
_ -Beek
Coney Bay
Island Bistro
Boat Launch J
Pedestrian Bridge
Interim
Dry Boat
Rtmmna
R
Boat /
Trailer
Parking
Hyatt Regency
Newport Beach
191,
/
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9p
Parking
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RV Support Bayview Landing
Center senior Apartments
Back Bay
View Park cr
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Exhibit "C"
General Plan Update
June 27, 2006
Page 5
considerable amount of time on this analysis, and Urban Crossroads needs to finish
the peak hour trip analysis, so that the City Council can discuss and decide on ballot
language. While staff certainly understands that the public hearings are still open, and
the Council should continue to listen to the public and entertain requests for changes,
we want to emphasize that additional changes to the plan should be made only if
deemed absolutely necessary.
7. Land Use Categories Table and Map
The goal of the draft land use map is to portray the allowed land use intensities and
densities graphically as much as possible and create a planning tool that is useable to
both City staff and the public.
The Land Use Map and accompanying Land Use Categories table have been devised
to depict both graphically and descriptively the land uses recommended by the City
Council up to this point. The City's vast array of distinctive neighborhoods, villages,
commercial districts and newly proposed mixed -use areas has created many special
circumstances. The consequence is the need for a multitude of land use categories
that accurately state the regulations recommended by the City Council. For example,
though both the Corona del Mar commercial area and Fashion Island are dominated
by retail and service commercial uses, they are very different functionally and in their
scale, design and character. Similar differences in scale and character can be found in
residential, office and mixed -use areas. In order to better illustrate the designations,
the map has been broken down into twelve 11 x 17 area maps. The draft plan also
includes the Anomaly Table (A2 in the draft, although staff recommends it be moved to
the body of the Land Use Element) which is necessary given the large number of site
specific densities or square footage limitations.
Residential Designations
The residential designations have been revised from the original density categories,
traditionally used in general plans, to a system that maintains the status quo for those
areas not specifically identified for change by the City Council. In order to achieve this,
a policy similar to one that applies to the majority of the residential districts in the
existing general plan will be added that prohibits subdivisions resulting in additional
dwelling units.
As their names imply, Single Unit designations will allow one unit and Two Unit
designations will allow two units. Multiple Unit designations will allow either a specific
density or a specified number of units. The density or dwelling unit cap will be
indicated directly on the map.
Exhibit "D"
Appendix
Appendix C.
Traffic Impact Analysis
C�
Mariner's Pointe Project Initial Study City of Newport Beach
Existing Conditions Peak Hour Traffic Volumes
To determine the existing operation of the study intersections, this study utilizes 2009/2010 a.m.
and p.m. peak hour intersection movement counts provided by City of Newport Beach staff.
Additionally, a.m. and p.m. peak hour intersection movement counts were collected at the
following two study intersections:
• Dover Drive /Cliff Drive; and
• Balboa Bay Club Driveway/West Coast Highway (SR -1).
An annual growth factor of 1.00% on primary roadways, based on the City of Newport Beach
TPO, was applied to 2009 traffic counts as appropriate to reflect growth from the count year to
year 2010 conditions. The counts used in this analysis were taken from the highest hour within
the peak period counted. Detailed traffic count data is contained in Appendix A.
Exhibit 4 shows existing conditions a.m. and p.m. peak hour volumes at the study intersections.
Exhibit 5 shows existing study intersection geometry.
Existing Conditions Peak Hour Level of Service
Table 2 summarizes existing conditions a.m. and p.m. peak hour LOS of the study intersections;
detailed LOS analysis sheets are contained in Appendix B.
Table 2
Existing Conditions AM /PM Peak Hour Intersection LOS
Int.
No.
Study Intersection
AM Peak Hour
PM Peak Hour
V/C —LOS
V/C —LOS
1
Irvine Ave /Dover Or
0.543 —A
0.661 — B
2
Irvine Ave /17m St
0.496 — A
0.690 — B
3
Dover Dr/Westcliff Dr
0.368 —A
0.414 —A
4
Dover Dr /16'h St
0.588 — A
0.493 —A
5
Dover Dr /Cliff Dr
0.545 — A
0.492 — A
6
Newport Blvd SB Ramps/W. Coast Hwy (SR -1)
0.839 — D
0.646 — B
7
Riverside Ave/W. Coast Hwy (SR -1)
0.658-8
0.715 — C
8
Tustin Ave/W. Coast Hwy (SR -1)
0.660 — B
0.580 —A
9
Balboa Bay Club Dwy/W. Coast Hwy (SR -1)
0.659 — B
0.694 — B
10
Dover Dr/W. Coast Hwy (SR -1)
0.639 — B
0.718 — C
11
BaysideDr /E. Coast Hwy (SR -1)
0.601 — B
0.571 —A
12
Jamboree Rd /E. Coast Hwy (SR -1)
0.560 —A
0.679 — B
Note: V/C = volume to capacity ratio; SB = southbound.
As shown in Table 2, the study intersections are currently operating at an acceptable LOS (LOS
D or better) according to City of Newport Beach performance criteria.
LAW OFFICES OF ROBERT C. HAWKINS
February 11, 2014
Via email (jmurillo@newportbeachca.gov)
Rush Hill, Mayor
Members of the City Council
c/o Jaime Murrillo, Senior Planner
Department of Community Development
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Re: Comments on City Council Agenda Item No. 11:
Greetings:
Agenda Item No. 11
February 11, 2014
Recieved After Agenda
Back Bay Landing Final Environmental Impact Report ( "FEIR ")
SCH No. 2012101003
Thank you for the further opportunity to comment on the captioned matter. As you know,
this firm represents Stop the Dunes Hotel, an unincorporated community action group dedicated to
ensuring compliance with state and local laws including the California Environmental Quality Act,
Public Resources Code sections 21000 et seq. in connection with developments in and around the
Back Bay and the Dunes, and Friends of the Bay an unincorporated association of persons dedicated
to protection of Upper and Lower Newport Bay.
We offer the following further comments on the captioned Project and DEIR/FEIR.
First, as we indicated in our February 10, 2014 comments and as is stated in the DEIR, the
visual simulations in the DEIR and FOR to assess aesthetic impacts are based on the conceptual
model which shows the parking structure as semi - subterranean. As indicated in our February 10
letter and the DEIR/FEIR, the semi - subterranean parking structure will interfere with the shallow
groundwater. The DEIR and the PCDP state that the structure will be subterranean only if feasible.
Given its interception of groundwater, it will not be feasible. Because the simulations were based
on the Conceptual Plan with the semi - subterranean parking structure, the simulations are inaccurat
and do not reveal the true aesthetic impacts of the Project and the at grade parking structure.
Because of this inaccuracy, the DEIR/FEIR must be revised and recirculated for public
review and comment.
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650 -5550
Pax: (949) 650.1181
Rush Hill, Mayor
Members of the City Council - ? - February 11, 2014
In addition, we incorporate all comments made in this public review and comment process
which are consistent with our concerns that the Project will adversely impact the City, the
community, the Upper and Lower Newport Bay and the environmental in its entirety.
Thank you, again, for the opportunity to comment on the captioned Project. As before, please
provide us with notice of any responses to these comments and with notices of any and all hearings
on the captioned project. Further, this is also a written request for notices pursuant to the California
Environmental Quality Act, specifically, Public Resources Code Section 21092.2. Specifically,
pursuant to Section 21092.2, we request that you provide us with a copy of any and all notices
required pursuant to Public Resources Code Section 21080.4, 21083.9, 21092, 21108 and 21152
relating to the captioned Project.
Of course, should you have any questions, please do not hesitate to contact me.
Sincerely,
FFICES OF ROBZRT C. HAWKINS
Robert C. Hawki] s
RCH/kw
cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only)
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650.5550
Fina (949) 650 -1181
LAW OFFICES OF ROBERT C. HAWKINS 0GRAL
February 11, 2014
Via email (Imurillo .newportbeachca.gov)
Rush Hill, Mayor
Members of the City Council
c/o Jaime Murrillo, Senior Planner
Department of Community Development
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
' HEiVED AFTER AGE140A
P1M4 EU' Itt l (
a. t(.
Re: First Supplemental Further Comments on City Council Agenda Item No. 11:
Greetings:
Thank you for the further opportunity to supplement our comments on the captioned matter.
As you know, this firm represents Stop the Dunes Hotel, an unincorporated community action group
dedicated to ensuring compliance with state and local laws including the California Environmental
Quality Act, Public Resources Code sections 21000 et seq. in connection with developments in and
around the Back Bay and the Dunes, and Friends of the Bay an unincorporated association of persons
dedicated to protection of Upper and Lower Newport Bay.
We offer the following further comments on the captioned Project and DEIR/FEIR.
As we discussed in our February 10, 2014 comments, the DEIR/FEIR engage in piecemeal
environmental analysis which violates the letter and spirit of the California Environmental Quality
Act, Public Resources Code sections 21000 et seq. In addition to the reasons set forth in our earlier
comments, the DEIR/FEIR engage in Project segmentation and piecemeal analysis with the creation
of Anomaly No. 81 without any discussion of the location and use of those additional 26 residential
dwelling units (du's). The location and use of those additional and new du's is itself another project
under CEQA; the DEIR/FEIR fails to analyze the impacts of that other project. Anomaly No. 81
is fully built -out; there is no opportunity for mobile home sites at that location.
Hence, these new du's will be located elsewhere, for instance, at the Family Inn located at
the Dunes Resort.
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650 -5550
Fax: (949) 650.1151
Rush Hill, Mayor
Members of the City Council - 2, February 11, 2014
Because of this further piecemeal analysis, the DEIR/FEIR must be revised and recirculated
for public review and comment.
Thank you, again, for the opportunity to continent on the captioned Project. As before, we
incorporate our requests for notices of environmental documentation including notices of
determination for the captioned Project.
Of course, should you have any questions, please do not hesitate to contact me.
Sincerely,
FFICES OF ROBVkT C. HAWKINS
PRo C. Hawkins
RCHlkw
cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only)
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650 -5550
Fax: (949) 650-1181