HomeMy WebLinkAbout11 - Back Bay Landing - Memorandum - StaffDATE:
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> CITY OF NEWPORT BEACH
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CITY ATTORNEY'S OFFICE
February 11, 2014
City Council
Leonie Mulvihill, Assistant City Attorney
Jaime Murillo, Senior Planner
Back Bay Landing
No.: Al2 -00405
"RECEIVED AFTER AGENDA
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Correspondence Received from Robert C. Hawkins dated February
10, 2014
Included on the City Council's agenda for February 11, 2014 as Agenda Item 11 is the
Back Bay Landing Project. The City received correspondence yesterday and today
providing comments to the Back Bay Landing Final Environmental Impact Report. The
purpose of this memorandum is to provide with our review and analysis of these
comments. The comments included and identified in numerical order in Attachment No.
1.
Comment 1
In correspondence dated February 10, 2014, Robert C. Hawkins states that he is
providing comments on behalf of Stop the Dunes Hotel, an unincorporated community
action group and "Friends of the Bay dedicated to protection of Upper and Lower
Newport Bay." This correspondence states that the Project "threatens the Upper and
Lower Newport Bay environment, traffic, biological resources, aesthetics and views,
noise, and other resources' and that the comments are providing in the hope of
avoiding significant impacts. The commenter states that these comments are timely.
The comments are not timely. The City issued a Notice of Preparation (NOP) of an
Environmental Impact Report (El R) for the Project on October 1, 2012, advising that the
City would receive comments on the NOP through October 30, 2012. The City
published a Draft EIR (DEIR) on October 4, 2013 advising that the comment period
would end on November 18, 2013. Mr. Hawkins failed to submit a comment letter on
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the Draft EIR, and had more than adequate time to submit comments on the EIR during
the 45 -day comment period and afterward during the Planning Commission review
process. While the City Council Staff Report was posted on Friday afternoon, February
7, 2014, the material in the Staff Report is almost identical to the Planning Commission
Staff Report. The only differences are that the City Council Staff Report includes
updates relative to the Planning Commission process. The proposed Final EIR and the
Response to Comments were available in December 2013 for the Planning Commission
review. Mr. Hawkins could have reviewed the proposed Final EIR and Response to
Comments in November, about three months before the Council Staff Report was
posted.
Although the City must respond to comments received during the comment period,
CEQA does not require that the City respond to late comments. (See, Pub Res C
21091(d)(1); Gilroy Citizens for Responsible Planning v City of Gilroy (2006) 140
CA4th 911, 924 n10, 45 CR3d 102; 14 Cal Code Regs §15088(a).) These comments
are provided for the record to document that Mr. Hawkins' comments, submitted months
after the end of the EIR review period and the two Planning Commission meetings on
the project, do not present any significant environmental issues that have not already
been analyzed in the Final EIR or otherwise in the Record for this project. In
accordance with CEQA Guidelines section 15088.5, none of the allegations in Mr.
Hawkins' letter documents either a new significant impact or a substantial increase in
the severity of an impact. Further, none of the allegations demonstrates that a "feasible
project alternative or mitigation measure considerably different from others previously
analyzed would clearly lessen the significant environmental impacts of the project, but
the project's proponents decline to adopt it." (CEQA Guidelines Section 15088.5.)
Therefore, the City determines that no recirculation of the EIR is required. The majority
of the comments appear to repeat comments received by the City during the public
review process or are misstatements and misreading of the content and statements in
the EIR. Notwithstanding the fact that the City has no obligation to respond to untimely
comments, City staff has reviewed the information included in the correspondence and,
in an effort to ensure that the City Council fully considers the environmental
consequences of its decision on the Project, provides the following information to
document that the EIR is adequate under CEQA and no recirculation is required.
Comment 2:
This commenter's understanding of CEQA and the CEQA Guidelines does not raise any
significant environmental issue. (Pub Res C X21091 (d)(2)(B); 14 Cal Code Regs
§ §15088(c), 15132(d), 15204(a).) CEQA does not require that the City respond to every
comment that is submitted to it and it need not respond to general reference materials
submitted in support of comments, comments that are repetitive of those already
considered, or comments that are clearly irrelevant. Environmental Protection Info. Ctr.
v California Dept of Forestry & Fire Protection (2008) 44 C4th 459 483 487 80 CR3d
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28. Responses to comments that do not raise a significant environmental question are
not required. Citizens for E. Shore Parks v State Lands Comm'n (2011) 202 CA4th 549
136 CR3d 162.
Comment 3:
The comment is that the FEIR is inadequate because it fails to acknowledge the "tiering
analysis for the Project requires subsequent and complete environmental review such
as subsequent EIR." The commenter is not raising any significant environmental issue.
Rather, the comments asserts an opinion as to the requirements of CEQA and the
CEQA Guidelines. The City disagrees with this opinion and, as noted in the FEIR, page
2 -57 future discretionary approvals, if any, will be reviewed under CEQA and the CEQA
Guidelines to determine what environmental analysis, if any, is required by CEQA and
the CEQ A Guidelines.
Comment 4:
The commenter suggests that the FEIR fails to analyze the Project fully and that the
City is attempting to "cover the inadequate and piecemeal Project Description."
It should be noted by the commenter that the Project Description includes all of the
approvals being requested at this time. In addition, in the Staff Report dated February
11, 2014, City staff states that it anticipates construction in 2015. More importantly to
the comment is that CEQA does not require that the City respond to every comment
that is submitted to it and it need not respond to general reference materials submitted
in support of comments, comments that are repetitive of those already considered, or
comments that are clearly irrelevant. (Environmental Protection Info. Ctr. v California
Dept of Forestry & Fire Protection (2008) 44 C4th 459 483 487 80 CR3d 28.)
Reference is therefore made to FOR pages 2 -55 to 2 -57, which provides the City's
commitment to ensuring that the EIR addressed the environmental impacts of all
reasonably foreseeable activities and notes that 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. However, no specific development
proposal has been prepared at this time.
Comment 3:
The commenter believes that the Project is the first step in an integrated project that
must be analyzed in the FEIR and without such analysis results in improper project
segmentation under CEQA.
A response to this comment is included in the FEIR pages 2 -55 through 2 -57. In
summary, the commenter's focus on the CEQA Guidelines' definition of "project" and on
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how the project is defined is misplaced. The DEIR analyzes the future development
that could occur consistent with the requested legislative approvals. Throughout each
of the topics addressed in the DEIR, the discussion included analysis of future
development. That analysis is consistent with Guidelines section 15378(d)'s reference
to environmental analysis of development. The DEIR analyzed the effects of future
project development consistent with the proposed Mixed Use land use and Planned
Community zoning designations, to the extent feasible based on available information.
The fact that certain specific impacts cannot be quantified in the EIR is entirely
consistent with CEQA and the CEQA Guidelines and does not mean that improper
segmentation has occurred. As stated in the CEQA Guidelines Section 15146, CEQA
recognizes and allows for a different level of analysis for a specific construction project
and other types of actions. The commenter's attempt to characterize the Draft EIR as
having been prepared "too early" ignores the entire concept of tiering and the
Legislature's finding that tiering accomplishes important state goals and that EIRs
should be tiered wherever feasible. Cal. Pub. Resources Code § 21093. Contrary to the
comment, the Draft EIR does "examine all phases of a project, including planning,
construction, and operation." The only difference is that the Draft EIR examines these
phases at a level of detail commensurate with the level of detail available at this time,
consistent with CEQA tiering principles (see discussion above). Although there are no
specific development projects proposed at this time, and thus project- specific details of
certain impacts are not available, the DEIR evaluated the potential impacts and made
significance conclusions based on known information. For example, the Draft EIR
concludes that "the proposed project would avoid any permanent adverse impacts to
wetlands and marine resources, with the possible exception of limited impacts related to
construction of a new water inlet in Planning Area 1. Further, impacts "associated with
future bulkhead construction are not considered to be significant given the bulkhead
wall placement outside of the ACOE and CCC jurisdiction, avoidance of eelgrass
habitat, and the general lack of other high value habitat resources in the project area."
(page 4.0 -42 of the Draft EIR). Moreover, mitigation measures have been included for
potentially significant effects, including potentially significant biological effects. These
mitigation measures, including measures C -1 through C -12 for biological resources, will
mitigate potential effects to biological resources to less than significant levels but may
require additional CEQA documentation to evaluate project- specific impacts to such
resources
Comment 6:
The comment suggests that the DEIR fails to analyze or identify project components
including the boat launch facility and the 0.642 acres south of the Coast Highway bridge
and designated as Recreational and Marine Commercial. This is incorrect. The
Planned Community Development Plan (PCDP) requires that a boat storage facility be
included in future development and identifies Recreational and Marine Commercial uses
as priority uses. At this time the location and design of the facility is unknown.
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Therefore, the DEIR included these components in the Project Description and
analyzed potential impacts of these identified components. For example the DEIR
includes visual simulations that include a conceptual boat storage facility and AQ-
construction emissions and operational emissions from the boat storage facility were
assumed in AQ calculations and modeling. The Biological Resources analysis in the
DEIR analyzed the potential for a water inlet into the boat storage facility, which would
require dredging of a small channel from the existing marina to the interior of the site.
However, as stated above, without specific design of the future boat storage facility and
potential inlet, it is not possible to quantify the extent of biological resource impacts.
The DEIR therefore identified a number of mitigation measures to address potential
impacts related to dredging if proposed in the future (See, MM C -3, 5, 6, 7, 8, 9, 10, 11,
and 12) which specifically detail the actions /analysis that need to occur and
performance measure to be achieved. Construction and operational noise from a boat
storage facility was assumed in the noise calculations and modeling included in the
DEIR. Specifically on Page 4.J -27, detailed operational noise analysis was included for
the boat storage facility. Finally, the trip generation specifically associated with the boat
storage facility of up to 140 boats was included in the DEIR (page 4.M -19) and
analyzed in the project traffic analysis.
Comment 7:
The commenter confuses the Bitter Point Pump Station which is located at 5904 West
Coast Highway (Newport Shores) with the Orange County Sanitation District (OCSD)
pump station located south of Planning Area 1 and identified in the DEIR. More
importantly, the comment does not raise an issue of new significant impacts but rather
seems to rely on the comments of OCSD suggesting that OCSD may, but is not
committed to, relocating the pump stations. To this suggestion, the City responded at
FEIR, page 2 -37 that the 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 of the relocated pump station would be determined once a
specific project design is brought forth. Nonetheless, as discussed in Chapter 2, Project
Description, Section 4.A, Aesthetics/Visual Resources, Section 4.6, Air Quality, Section
4.J, Noise, of the Draft EIR, the proposed project would not result in significant impacts
relative to visual quality or character, odors, noise and vibration, or vehicle access, and
therefore additional mitigation relative to the OCSD pump station is not necessary.
Comment 8:
The commenter is incorrect. The Family Inn was included in the Approved Project List
in the DEIR in Table 3 -1 on page 3 -3. The DEIR identifies the 275 not yet built hotel
rooms on the Dunes property.
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Comment 9:
It is difficult to ascertain the substance of this comment, but it can be said with certainty
that it does not raise any significant environmental issue that were not addressed in the
FEIR. To clarify, the General Plan identifies 75 unbuilt units in Statistical Area K -1. The
Project seeks to reallocate 49 of these units from the Bayside Mobile Home Park for the
park, but this did not change the total allocation to K -1 under the General Plan.
Comment 10:
The City agrees with the comment that until Site Development Review is conducted,
and subjected to public hearing and review, no development is assured or guaranteed.
This statement does not change the process for the current approvals, which is
consistent with state law. Relative to the public view tower, the City is not approving a
specific tower design at this time. The comments recognize the City's position stated
above. Namely, the fundamental CEQA principle that the level of detail is to be
commensurate with the approvals being sought.
Comment 11:
The City is not being asked to approve a specific structure at this time but the PCDP
does establishes minimum parking ratios based on peak parking demand of various
permitted uses. The PCDP also includes a provision allowing for modifications to these
standards based on a demonstrated complimentary peak hour parking demand analysis
with the approval of a conditional use permit.
Also, the comments about the height and size of the parking structure are incorrect.
The parking structure was addressed in the DEIR and included in the PCDP.
Comment 12:
This comment notes the Conceptual Site Plan, and that the Project will undergo further
refinement during the Site Development Review. The City agrees and appreciates that
the commenter acknowledges this process. As noted above, and in response to most
of the comments made by Mr. Hawkins, the EIR defined an impact envelope for the
project based on the available information and the standards in the PCDP. If the City
certifies the EIR, that impact envelope is the defined maximum impact for future
implementation of the project. Any impact beyond that shown will need to be evaluated
by the City and will need to comply with CEQA and California planning and zoning law
prior to the next discretionary approval. The City understands that some of the text in
the PCDP and some of the requirements for future plans may not appear to be
"regulatory" or'standards." The provisions for future plans accomplish a number of
things: they allow the applicant flexibility when going to the next level of design, and,
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they provide for City review and a discretionary decision on approval of those later more
detailed plans. This is entirely consistent with City procedures and California law.
Contrary to the comment, the Project Description is adequate and the City has the
proper level of detail for the currently- requested approvals. No revision or recirculation
of the EIR is necessary; the comments do not document any new significant
environmental impacts.
Comment 13:
Mr. Hawkins states that the update to the General Plan, which is currently being
considered for recommendations by the City's Land Use Element Committee, should be
included in the list of projects identified in the Cumulative Analysis. The comment fails
to understand that a Notice of Preparation for the Project was distributed in 2012 and
the DEIR was circulated for public review on October 4, 2013, which was well before the
NOP for the General Plan Update.
The City's determination is based on an assessment of the project's incremental effects
viewed in connection with the effects of past projects, the effects of other current
projects, and the effects of probable future projects." 14 Cal Code Regs §15065(a)(3).
See also 14 Cal Code Regs §15355(b). In San Franciscans for Reasonable Growth v
City & County of San Francisco (1984) 151 CAW 61 198 CR 634, the court held that a
development proposal should be viewed as a probable future project once the
environmental review process for the project is underway. The court also noted that
because new projects are continually being fed into the environmental review process,
lead agencies may set a reasonable cutoff date for the new projects that will be included
in the analysis. (San Franciscans for Reasonable Growth 151 CA3d at 74 n14.) In Grav
v County of Madera (2008) 167 CA4th 1099 1127 85 CR3d 50, the court held that the
lead agency's mere awareness of a proposed project is insufficient to demonstrate that
the project is a probable future project. Finally, it is well established that a proposal that
has not crystallized to the point that it would be reasonable and practical to evaluate its
cumulative impacts need not be treated as a probable future project. (City of Maywood v
Los Angeles Unified Sch. Dist. (2012) 208 CA4th 362 397 145 CR3d 567.)
For these reasons, we believe that the City's project list for the purpose of analyzing
cumulative impacts is adequate and in compliance with CEQA and CEQA Guidelines.
Comment 14:
This comment repeats Mr. Hawkins claims relating to the Project Description and
alleged improper segmentation. As stated above, and in the FEIR (Response to
Comments) CEQA encourages "tiering," and provides that the EIR level of detail should
be tailored to the level of the approval being sought. In contrast to allegations that the
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project was "segmented," the EIR properly follows CEQA tiering concepts. The "Project"
is clearly stated throughout the EIR as the legislative approvals (GPA, CLUPA and PC
Amendment) and two necessary administrative approvals (LLA and TPO Study) for a
future mixed -use development of the site This is set forth in:
• Executive Summary 1 b.a (page ES -2)
• Executive Summary 1b.a(1)(d) Back Bay Landing PCDP: "the PCDP provides a
vision for the land uses on 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 ...(emphasis added)." (pg. ES -5)
• Introduction, Section 1.1 Purpose of the EIR: "This document analyzes the
environmental effects of the proposed project to the degree of specificity appropriate
to the currently proposed actions (legislative and minor administrative approvals
only) as required by section 15146 of the CEQA Guidelines.
• In Section II (page 4) of the Hawkins letter, the commenter quotes part of a
paragraph in Chapter 1, Introduction, but omits the key portion of that paragraph
which states: "The proposed actions [the "Project "] are all legislative approvals with
the exception of the traffic impact study and lot line adjustment; however, no
approvals which would directly allow site development are proposed at this time
(Section 1, Introduction 1. Purpose (pg. 1 -2) (emphasis added).
Comment 15:
This comment is that the Project will have significant aesthetic impacts. Specifically,
that the DEIR failed to adequately analyze these impacts and therefore leaves these
impacts unmitigated. The commenter ignores one fundamental aspect of the City's
required later Site Development Review process, namely that the City has discretionary
review and authority over that Site Development Review process. Any changes to the
impacts addressed in the EIR must be evaluated by the City as part of the Site
Development Review process, which would also include the appropriate CEQA review.
In addition, the commenter suggests that the Project's impacts to private views are
significant. However, Section 20.30.100 of the City's zoning code specifies that it is not
the intent of this Zoning Code to protect views from private property, and therefore the
City's threshold for the analysis of aesthetics is based on public views not private views.
The comment also makes several allegations that the EIR minimizes issues and
existing conditions. But, the comment does not provide specific evidence to support
those claims. In the absence of an explanation as to why the EIR is considered by the
commenter to minimize certain issues, the City confirms the analysis in the EIR.
The City does not agree with the commenter's statement that visual simulations are
worthless. Rather, visual simulations are critical to identifying the aesthetic impacts of
the Project. Contrary to the comment, CEQA does not require the use of "story poles"
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and since there is no construction project being approved at this time there would be no
point in relying on "story poles" to determine the Project's aesthetic impacts.
The DEIR acknowledges that future development of urban uses on the Project site
pursuant to the legislative approvals has the potential to obstruct existing views of
scenic resources including views from the City- designated Public View Points and
Coastal View Roads (DEIR, page 4.A -25.) However, as discussed in the DEIR these
impacts are considered to be less than significant. Specifically, while some foreground
views from areas adjacent to the Project site, particularly along East Coast Highway just
west of Bayside Drive and along Bayside Drive, as viewed by the public transitioning
through the area in their cars will experience some disruption due to the Project, views
of scenic resources would not be substantially altered relative to current conditions due
to existing intervening topography, urban development, and landscaping. Further,
foreground views of Upper Newport Bay and adjacent bluffs would generally be
preserved from designated Public View Points including Castaways Park, the bluff -top
trail north of Castaways Park, and Westcliff Park, as well as from the East Coast
Highway Bridge. Mid -range views of Upper Newport Bay, the Upper Newport Bay
bluffs, the Fashion Island shopping center, Newport Dunes resort, and Newport Harbor
could be partially obstructed from designated Public View Points such as Castaways
Park and adjacent bluff tops and a Coastal View Road (East Coast Highway), however
views of these features would primarily be preserved with little adverse effect.
Additionally, long -range views of the San Joaquin Hills, Santa Ana Mountains, San
Gabriel Mountains, Pacific Ocean, Palos Verdes Peninsula, Santa Monica Mountains,
and Santa Catalina and San Clemente Islands would remain unaffected by future site
development, with the exception of a limited number of viewpoints at lower elevations
relative to the project site.
Although future development on -site could obstruct short-, mid -, and long -range views
of scenic resources from some locations in the project area, such obstructions would
not represent a significant portion of the overall panoramic views currently available
from public viewpoints. This is because the most substantial view obstructions would
occur along a limited segment of East Coast Highway immediately adjacent to the
project site, such that views northward from the roadway would only be obscured for a
limited time as one travels along the roadway. Furthermore, project design features
such as open space areas and plazas, and the associated view corridors they create,
would preserve views through the site at various locations along the affected portion of
East Coast Highway, while proposed landscaping and architectural design features
would improve the quality of available views across the site relative to the poor visual
quality of the property under existing conditions.
As such, the DEIR concludes that the Project would not have a substantial adverse
effect on a scenic vista, and impacts in this regard would be less than significant.
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Comment 16:
The comment suggests that the DEIR fails to adequately address the Project's impacts
on Air Quality. In response, it should be noted that demolition activities are addressed
in several portions of the DEIR under construction impacts. (See, DEIR page 4.13-17,
4.6 -26, and 4.13-27.)
Contrary to the comment, the project is NOT adjacent to the Bitter Point Pump Station.
The DEIR did however address the OCSD pump station, which is adjacent to the
Project site. Specifically, the DEIR identifies the requirements of the PCDP that a future
development 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. It should be noted that sewage pump stations are ubiquitous
throughout suburban and urban areas. There are thousands of pump stations in and
adjacent to residential areas in California; pump stations are located in and adjacent to
residential areas in order to serve those areas. Bringing residents, shoppers and diners
to the vicinity of such a station is not a significant impact under CEQA.
The commenter overstates the nature of the issues related to the pump station and the
OCSD comment letter on the EIR. The OCSD comment letter (letter F), states that
"odors do occur on occasion and can be perceived by sensitive receptors as a
nuisance." Further, the letter notes that relocating the pump station to create a greater
distanced between the pump station and proposed uses would "diminish the probability
of pump station odor being bothersome." The occasional odors from the pump station
are an existing condition that nearby residents and business live with and have lived
with for years. This does not translate into a significant adverse impact under CEQA.
Comment 17:
The comment letter fails to document any new environmental impacts that are not
already addressed in the EIR. In fact, the DEIR provided a delineation of the waters of
the United States. The DEIR did not provide further details of impacts to these waters
because no design level details are available at this time. Mitigation is also provided for
this impact, which will be further refined through the Site Development Review process.
The commenter cites to CEQA Guidelines section 15144 that some degree of
forecasting is required when drafting an EIR. The commenter neglected to cite to
CEQA Guidelines section 15145 which states that if "a Lead Agency finds that a
particular impact is too speculative for evaluation, the agency should note its conclusion
and terminate discussion of the impact." In accordance with CEQA Guidelines section
15144, the City has disclosed all that it reasonably can.
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Comment 18:
The commenter states that the subterranean garage portion of the project is not feasible
due to groundwater potential and also states that the garage will be high and massive.
Encountering groundwater is not uncommon in the City and compliance with the
recommendation included in the design -level geotechnical analysis required under
Mitigation Measure E -1 serves to mitigate the risk associated with encountering ground
water. The PCDP includes height limits and design guidelines to address the project
aesthetics.
The commenter incorrectly states that potential impact to liquefaction was not
addressed in DEIR and implies solely reliance on Building Code compliance. In fact, a
full analysis of liquefaction is included in Page 4.F -10 and 11 addressing the liquefaction
potential, recommendations included in the Preliminary Geotechnical Study to ensure
liquefaction potential is adequately addressed, and further requires a design -level
geotechnical analysis based on project specifics.
Comment 19
The commenter questions whether or not it is good policy to amend the General Plan as
proposed by the Project Description. This is not an identification of a new significant
impact or severity of an identified impact as should be the case with a CEQA comment.
The impacts under land use were identified in the DIER.
The commenter's suggestion that the Project is a transfer of development intensity is
inaccurate. Rather, the General Plan provides for a maximum FAR for the land -side
portion of the Project site north of the bridge, which equates to 131,290 square feet. The
General Plan also designates the adjacent Bay Side Village mobile home park property
(Parcels 1 and 2 of Parcel Map 93 -111) for multi -unit residential and limits it to 15 DUs
per acre, which equates to 345 DU currently allowed. The reallocation from the RM to
the Project Site is not a transfer of development rights and therefore no findings are
required to effectuate this reallocation.
Comment 20
The DEIR did indeed analyze noise impacts. In fact, Figure 4.J -11 highlights the noise
monitoring locations to assess the existing noise environment in to determine project
impacts. This analysis included monitoring of noise of the sensitive noise receptors
including Dover Shores and Upper Castaways. The noise impact analysis studied
project noise level increases associated with project construction and operations and
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concluded established thresholds were not exceeded. This analysis is included in the
DEIR beginning on page 4.J -1.
The City disagrees with the suggestion that the PCDP should include noise monitors.
Rather, if noise levels identified in the City's Municipal are exceeded, established Code
Enforcement remedies can be utilized. However, the PCDP does provide that future
project components that may have a noise impact are conditionally permitted uses that
require further review of operations to ensure consistency with the City's code and other
appropriate noise standards.
Comment 21
The Traffic Study was based upon a Maximum Development Scenario that was
assumed for the project consistent with the development limits established in the PCDP,
including the 49 residential units reallocated from the adjacent mobile home park. As a
result, the traffic study evaluated the "worst -case' scenario for the project's trip making
potential, estimated through the application of solid trip generation factors to specific
non - residential SF (by land use type) and number of residential units.
The remaining 26 units (not 21 units as described by the commenter) that remain in the
mobile home park (Anomaly site 81) are not proposed to be constructed, but merely
represent the remaining density potentially allowed to be constructed on the site under
the General Plan designation. Therefore, analysis of the development of the 26 units on
the mobile home site is not warranted in the traffic study.
The comment highlights a difference between the existing conditions p.m. peak hour
LOS for the intersection of Coast Highway and Dover Dr between a previously prepared
traffic study for Mariner's Pointe project (LOS C) and the traffic study prepared for the
Back Bay Landing project (LOS B). The difference is related to the different periods of
time (baseline conditions) that the traffic counts were taken to establish existing traffic
volumes at the intersection. For the Mariner's Pointe project, the traffic counts were
taken in March of 2009. For the Back Bay Landing project, the traffic counts were taken
in April of 2012. The DEIR explains that the existing traffic volumes were based upon
2011/2012 traffic counts for the various study intersections. It is not uncommon to have
differences in traffic volumes that translate to differences in ICUs (0.718 versus 0.671)
and corresponding LOS. The DEIR traffic study's conclusions on the Project having no
significant traffic impacts remain valid regardless of the existing baseline differences
The Commenter states that it is unclear whether or not the traffic impact analysis fully
appreciated the impacts of the project, the Mariner's Pointe project, and the Dunes
Hotel project in the project forecasts. However, as illustrated in Table 3 -1 Approved
Projects List of the DEIR, both the Newport Dunes and the Mariner's Pointe projects
were included in the cumulative project analysis and included in the traffic impact
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analysis for the project. The traffic impact analysis also included a queuing analysis to
ensure vehicles turning left to enter the project site would not be impacted from
anticipated traffic travelling southbound on Bayside Dr exiting the Dunes property at
build -out.
The Commenter states that community concern raised in Comment N -13 is relevant in
assisting significance. However, the actual comment in N -13 only provides an opinion of
what people may be concerned with, but does not actually address a deficiency in the
DER analysis or offer an alternative significance threshold. Therefore, response to
Comment N -13 is appropriate.
Comment 22:
The EIR was available on the City's website, at libraries and at the City. There is no
requirement that the electronic files be provided in a particular format and the "locked"
pdf file is a common format used by many cities in California.
The City disagrees that the locked pdf file of the Project Description lessened the City's
ability to review and understand the document. Several organizations and individuals
reviewed the EIR and submitted comments before the end of the review period.
Comment 23 and 24:
Both of these comments were addressed in the City's responses to comments to the DER
and are also addressed herein.
[Al2- 00405]
�\ �_ '' .l i _ f 1 111 '' I l � 1_
LAW OFFICES OF ROBERT C. HAWKINS
February 10, 2014
Via email (jmurillo(a newoortbeachea 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•
Back Bay Landing Final Environmental Impact Report "FEIIR"
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 Proje�t 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 t e serious hope of avoiding these significant impacts which will seriously and
adversely affect ur City, our community and the Upper and Lower Newport Bay environment. Of
course, these co ents may seem late, but the Staff Report for the captioned Agenda Item No. 1 I
only came out pn Friday afternoon, February 7, 2014. These comments are timely.
1.
An EMIR 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 EIR should be prepared with a sufficient degree of analysis to provide decision -
makers with information which enables themto 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]elevantpersonal 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.
Regents 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.(1975) 13 Cal.3d 263, 282 (holding that "the principle that the enviromnental 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 a project applicant to obtain a biological 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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IY. The 1Proiect FEIR is Confused and Requires Substantial Revision
Chapter 1, Introduction, identifies the DEIR as a Project EIR. It states that
"A Project EIR 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 I 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 I
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.
I11. The Project Description is Incomplete and Engages in Unlawful Piecemeal Analysis
for Important Project Features.
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 Invo v Citv of Los Angeles (1977) 71 Cal.App.3d 185, 193 (Emphasis supplied). The
County of Invo Court continued: I
"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 fmite 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 wilt 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 welt, 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 1Banning]" 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.' (Bozuna,
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 5
must analyze fixture expansion or other action.' IC bid.)" J
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 rBanning], 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 Areallo. 1 or Parcel3. 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, I generator set, I 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 I as part of future project
implementation; however, should this occur, the exact location of the 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 theNewport 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 aplanned 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, anon - Project site, with an additional 26 du'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: 3
"The site would accommodate the development of an integrated, mixed -use i
waterfront project consisting of coastal dependent and coastal related visitor- serving
commercial and recreational uses allowed in the current CLUP CM A, 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 DEIRlFEIR 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 tern 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 dos and commercial square footage wrap around the parking
structure, the size of the entire building will have impacts. Butagain,theDEIR/FEIRandtheDCDP
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 Z
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 imperniissible 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 Projectin 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.
ffi. 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 Analvsis," Is Seriously Flawed and Requires
Substantial Revision and Recirculation of the FEIIR.
A. Introduction: the Proiect Description Undercuts the Impacts Analvsis.
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
hqp://www.dot.ca.Qov/hq/LandArch/seenic/schwv.ht . 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. y
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 11 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 ofproposed
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. Citv 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. Asnotedabove,
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 Proj ect 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 of terrestrial 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 DEIRIFEI'R 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 4.13-33. 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. The Project Will Significantly and Adversely Affect Biological Resources
Which Must be Miti ag ted.
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 UpperNewport
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 EIR 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 comment."
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 DEIWFEIR, 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 Geology and Hydrology of the Project Site Result in Substantial Project
Impacts Which Require Mitigation.
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 Introduction of Residential Uses at the Project Site Will Have Significant
Land Use Impacts Which Must Be Analyzed and Mitigated.
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 Proj ect
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 du's to the
site? The DEIR does not answer these questions.
Indeed, Comment C -2 recognizes that residential du'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: G
A. The reduced density/intensity on the donor site provides benefits to 1
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.
I
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 theperhneter of the Project site with 2�
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.
14 Corporate Plaza, Suite 120
Newport Beach, California 92660
(949) 650 -5550
Fas: (949) 650 -1181
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 du's not currently existing. Nowhere does the traffic
analysis discuss these new 21 du'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 forpublic review and
comment.
Finally, we must note Response to Comment N -13. Continent 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 Comments 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 Corporare Plaza, Suite 120
Newport Beach, California 92660
(949) 650 -5550
Fax: (949) 650.1181
Ruafi Ifill, Mayor Fvhruar} 10, 2014
�kmbcr ni nc, Ciq Council
VL Conclusion
Respectfully, the City Council cannot certify the FElRforthe above discussed reasons. The
Project Description is incomplete and is piecemcaled 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 Proect 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 continents 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.
SpcciFically, pursuant to Section 21092.2, we request that you provide its with a copy of any and all
notices required pursuant to Public Resources Code Section 21080.4, 21053.9, 21092, 21 108 and
21 152 relating to the captioned Project.
Of course, should you have any questions, please do not hesitate to contact Inc.
Sincerely,
PF C= Oins C. HAWKINS
Robert C. Haw
RCHIkw i
EnclosureslESllibits as indicated
cc: Leilani Drown, City Clerk (Via email [LDrowii@ilewportbeachca.gov] Only)
14 Coryronac Plaza, Suit, 120
Newpmr Beach, Ctfrornin 92660
(949) 650.5550
I',= (9-19) 650- t 181
Recording Requested By:
ORANGE COUNTY SANITATION DISTRICT (OCSD)
This document Is recorded for the benefit of OCSD and
Is ex&mpt from fees (Government Code Section 27383
When Recorded Mall To:
Name OrangeCou*SanttattonDfaidd
Attn: Clerk of the Board
Sheet
Address 10844 Ellis Averm
City & Fountain Valley
state CA 92708&7018
NOTICE IS HEREBY GIVEN THAT:
]Exhibit "A"
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
NO FEE
*
$ R 0 0 0 5 3 1 4 3 1 7 8 n
201200068542011:52 am 11/07/12
62 417 NI12 2
0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00
NOTICE OF COMPLETION C O N F O R M E D COPY
(CA CM1 Code gga1808190 ,a1gae118,9209 -9M) 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:
(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 cD owners are:
Name Street and No. City State
Orange County Sanitation District 10844 Ellis Avenue Fountain Valley California 92708.7018
3. The name and address of the direct contractor for the work of improvement as a whole is:
KewibWlass, 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:
NIA
6. The name and address of the construction lender, N 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, 240, Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Departrnent,120 South San Pedro St,
Suite 400, Las Angeles, CA 90012 acting as Trustee.
7
On the 60, 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 work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided:
8. The real property herefn referred to is situated in the City of Newport Beach . County of Orange
State of Cardomia, and is described as follows:
Contract No. 5.49 Replacement of Bitter Point Pump Station
9. The street address of said property 1s:
5904 West Coast Highway, Newport Beach, CA 926M
10. if 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 pedury under the laws of the State of California that the foregojng is true and correct
Date: ��' L��— Z o s'� By,
gnature of Owner of Owner's A th rized Agent
James D. Herberg
Print Name
Page 1 of 2 Revision 102312
VERIFICATION
I, James D. Hedberg , state: I am the Assistant General Manager ('Owner, 'President,
'Authorized Agent, °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 he 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 11-0-7 247— .(date), at Fountain Vail f (city), California.
gnature of Owner or Ownees Aterized Agent
PROOF OF SERVICE DECLARATION
I, declare that I served copies of the above N0710E OF COMPLETION, (check
appropriate box):
a. ❑ By personally delivering copies to (name(s) and title(s)
of person served) at (address),
on (date), at .m. (time)
b. 0 By Registered or Certified Mall, Express Mall or Overnight Delivery by an express service carer, addressed to each of the
parties at the address shown above on f V(311 teg- `f -161A (date).
C. ❑ By leaving the notice and ma ling a copy in the manner provided in § 415.20 of the Cal fornia Cade of Civil Procedure for service of
Summons and Complaint in a Civil Action.
I dedare under penalty of perjury that the foregoing Is true and correct.
Signed at Fountain Valley (city), California, on %i6j113R h o20 (� (date).
(Signaturd of Person Melding Service)
YAI PHONGMEKHIN
Commission rit 1885193
< -m Notary Public - California i
Orange County
My Comm. Expires Apr 8. 2014
STATE OF CALIFORNIA
COUNTY OF ORANGE
On November? 2012 (date), before
me, Yet Phongmekhin ' Notary Public (name and
He of officer) personally appeared James D. Hedberg who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) islere subscribed to the
within instrument and acknowledged tome that helsheMey executed the same In hisilieFffiell r
authorized capac tykes), and that by hislherltiheir signature(s) on the instrument the person(a),
or the entity upon behalf of which the persons) 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 correcL
Witness my hand and official seal. yj,, 9 ®
wri^�tk��
Signabire
Page 2 of 2 Revision 102312
Phongmekhin, 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
v ' foryau.
ILA
Memorandum
DATE: August 25, 2010
TO: James D. Ruth
General Manager
FROM: Marc Dubois Rl
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
M
Ruth, General Manager Date
cc: Jim Herberg, Lorenzo Tyner, Tod Haynes, Cindi Ambrose, Chris Cervellone, Michael
Dorman, Christina Stanford
Exhibit "B"
City Council
Attachment CC15
Newport ..
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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..ThIe draft plan -also
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
Marine ✓t Pointe Project Initial Stialy City of Neauhort Beach
Existing Conditions Peak Hour Traffic Volumes
To determine the existing operation of the study intersections, this study utilizes 200912010 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:
A Dover Drive /Cliff Drive; and
9 Balboa Bay Club DrivewayNVest 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 Dr
0.543 —A
0.661 — B
2
Irvine Ave /17'" St
0.496 — A
0.690 — B
3
Dover Dr/Westcliff Dr
0.368 —A
0.414 —A
4
Dover Dr /16r' 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 — B
0.715 — C
8
Tustin Ave/W. Coast Hwy (SR -1)
0.660 — B
0.580 — A
9
Balboa Bay Club DwyAN. Coast Hwy (SR -1)
0.659 — B
0.694 — B
10
Dover DrAN. Coast Hwy (SR -1)
0.639 — B
0.718 — C
11
Bayside Dr /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.