HomeMy WebLinkAboutExhibit 21 - Exhibit 21 - Additional Comment Letters & ResponsesExhibit No. 21
Additional comment letters and responses
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,01/31/2008 16:33 Pa.Y 949 752 0597 JDTP IRVINE
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Jackson I DeMarco I Tidus
Petersen ( Peckenpauet
A L A W O O R P O RATION
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FAX COVER MEMO;
DELIVER THE FOLLOWING MATERIAL A$ SOON AS POSSIBLE
January 31, 2006
Name: Planning Commission (Ginger Varin)
Company: City of Newport Beach Planning Department
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Vice rhainnan Scott Peotter
Commissioner Bradley Hillgren
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Jim Campbell, Planning Department
you for your cooperation. Imelda Korraa
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34 FIX 949 752 OS97 JDTP IRVINE
31, 2008
Jackson I DeMarcol Tidus
Petersen I Peckenpaugh
A LAVI COA PORATI ON
City fNewport Beach Planning Commission
Robert Hawkins
'Vice an Scott Peotter
ssioner Bradley Hillgren
Co ssioner Jeffrey Cole
Co ssioner Barry Eaton
Comfrtissioner Earl McDaniel
Comilansionem Michael Toerge
3300[Newport Boulevard
Newport Beach, CA 92663
Direct Bell
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Email:
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Reply to:
Irvine Office
File No: �
6014.46474
Re. Supplemental Comments an Hoag Hospital Master Han Amendment;
Planning Commission Hearing on January 31, 2008; Agenda Item 2
Commissioners.
=
lWe represent Villa Balboa Community Association (the 111Assmiation "). We respectfully
sub t the following supplemental comments to the Hoag Hospital Master Plan Amendment (PA
2007 73) (the "Project') and Draft Supplemental Environmental Impact Report, Supplement to
.Final nvironmental Impact Report No. 142 (SCH 1991071003) ("Draft SEW'). We submitted
co ents on the Draft SEIR on behalf of the Association on Novanbe r 5, 2007. The. Planning
Co ission is scheduled to consider the Project and Draft SEM at the hearing on January 31,
2008.1 We request that these comments be included in the administrath a record for the Project
and raft SBIR (Agenda Item 2).
1, 11 The City is illegally piece- mealing its analysis of cumulative environmental impacts.
Last week, the City of Newport Beach ("City") made its respomles to comments to the
Pmjelt and SEM ("Responses ") available to the public. The City's Responses conclude that it
need t%ot evaluate nor mitigate the environmental impacts of fire plume, emanating from the
cog eltaration plant because "the proposed Master PIan Update Project hears no relation to the
0 on of the existing cogeneration plant" (Responses, p. 3 -3). The I? espouses go on to state
that ough it was not required to, the Draft SEIR did examine "certair, elements of
cog 'on facility operation, but only where operation of the existing; cogeneration facility had
the p ential to affect implementation of the proposed project" (citing r7aft SEIR pp. 3.1 -14,
3.2 -12, 3.3 -25 — 26,3.4-27 — 28, and 3.5 -7).
WILe offia
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01/31/2008 10:39 FAX 949 752 0$97 JOTP IRVINE (21003
Planding Commission.
City of Newport Beach
January 31, 2008
The Draft SEIR affirms that the existing cogeneration plant and its proposed expansion
"se the buildout energy needs of Hoag" (Draft SEIR p. 3.3 -25). The eogrneration plant is
part of the Hoag Memorial Hospital Presbyterian Master Plan (see attached Criteria Exhibit 3).
The visual impacts of the plumes emanating fiam the plant were not previously disclosed,
aaalXzed or mitigated because they were not anticipated 'T'here has been no environmental
anal is or mitigation of the visual impacts that result from the plant. 'in evaluating the proposed
Mast Plan Update's visual impacts, the Draft SEIR ignored the visual impacts of the
cogeneration plant. This is a departure from the other impacts selectively evaluated in the Draft
SFk The City cannot pick and choose which potential significant ca:31ulative impacts to
eval4ate in the Draft . SI DL
The City relies upon two bases to excuse its continued failure to analyze and mitigate the
exist ng visual impacts, and to allow expansion of the plant without any analysis of the
cumulative impacts that might result from doing so. The first case cited by the City (Silveira v.
Las Gallinas Valley Sanitary District (1997) 54 Cai.AppAth 980, "Silveira") involves a
chall %ge to a sanitary district's failure to prepare an EIR for the condt nuation of the Silveitas'
prop ttY for use as an odor buffer zone for the existing emissions from the sanitation plant The
couA rejected the argument that an ETR was required because the praje:ct under consideration
was merely the acquisition of property, to which no material changes were proposed, and which
contulmplated no increase or modification of emissions. (Silveira, supra, 54 Ca1.App.4th at 991.)
Unlike the emissions complained of in the Silveira case, the Hoag co- genetation plume
has never been analyzed or mitigated. In fact, the purpose of condemx ation project in the
StIve ra case was to obtain land to create an "odor buffer zone', demonstrated that the sanitation
distri ct had taken significant steps to mitigate the impact of these emissions on the surrounding
en ' envit onment (Sitveira, supra, 54 Cal.AppAth at 984 [the buffer zone vras also intended to reduce
healta risks from potentially carcinogenic emissions]). In the case of I Ioag's cogeneration plant,
the p lumes were never disclosed, evaluated or mitigated.
Second, in Silveira, the court rejected the need for an EIR when the proposed project
invol,ved no physical impacts on the land. That project would "simply create an odor buffer zone
and riot alter the natural state of the condemned property." (Silveira, s gpra, 54 Ca1.App.4th at
983 -984.) The court noted that the "Silveiras have pointed to nothing in the record which shows
any increase or modification in the release of [the] noxious ftnnes" (Id. at p. 991). In contrast,
the ,IV4ster Plan Update Project Draft EIR and Responses disclose significant changes proposed
to the cogeneration plant, including the addition of a fourth tower and three cogeneration natural
gas internal combustion engines. (Draft SEIR sec. 2.6.2, p. 2 -8.) if nc•t mitigated, these physical
changes to the cogeneration plant uaill alter the emissions from that plant, and will worsen the
visudl impact of the plume. Unlike the Silveira petitioners, the Villa E alboa residents
specifically noted this expansion in theiT comments on the Draft SEIR (Villa Balboa Comments
on D SEIR, p. 10- 12, 13).
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Planding Commission
City of Newport Beach
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Additionally, the Silveira ease involved the potential impact of existing missions on
ran and that might eventually be used for residential purposes (,Silveira, supra, 54 Cal.AppAth
at p. F84). Quite a different circumstance exists in the case of the Hoag cogeneration plant that is
being operated and is to be expanded immediately adjacent to an existing public park and long -
established residences.
The City also cites to City of Ukiah v. County of Mendodino (1987) 196 Cal. App.3d 47,
"Ci of Ukiah," to support its refusal to prepare an EIR for the Master Plan Update Project. The
tances of the City of Ukiah case differ from the presem situation in that the court found
that t�1e project to be reviewed — approval of the reclamation plan — dic- not have any significant
ea r�meental effects. (City of Ukiah, supra, 196 Cal.App.3d at p. 54.) The reclamation plan
requ red the gravel mining company to simply to submit photographs and reports on the mining
operations. "In essence, the current activities called for by [the applicaatt'sj reclamation plan
corm, sted of collection of data and its submission to the planning depaiunent." (1d.) The minor
activ tyof the City of Ukiah project is considerably different the Project reviewed here — the
Master Plan Update Project. This project does create significant eavip m nental effects in itself
and therefore requires preparation of an EIR.
Furthermore, the City cites to City of Ukiah to support its claim that the Draft SEIR was
not rhquired to assess or mitigate the potential impacts of the cogeneration facility because the
Master Plan Update Project is not related to the operation of the existing cogeneration facility
(Response to Comments, p. 3 -3, 12). This ignores the fact that the Master Plan Update Project
is refuted to and dependent upon the existing and planned expansion of the cogeneration facility.
The}. are different parts of the same operation at the Hoag Master Plan site. The cogeneration
facility powers the existing operations under the Master Plan and prop3sed Master Plan Update.
Also, the City of Ukiah count noted that the underlying activity, gravel extraction, was a
vesh d right of the applicant and "did not require a license, permit, or other authorization" for
that tivity (City of Ukiah, supra, 196 Cad.App.3d at p. 54). rn contrast, the Master Plan Update
Project must consider the impacts of the cogeneration plant because that activity does require
auth rization (including permits from the South Coast Air Quality Management District
( "SC4AQMD ")) and the plant's existing and potential new eaviromuental impacts have not been
previously evaluated.
The Draft SEER listed the SCAQMD as a responsible agency because it would be issuing
for future engines to be installed at the cogeneration facility. The Responses confirm
plans to expand the cogeneration facility by adding a fourth to wer. Yet, in the
ses, the City deletes SCAQMD as a responsible agency on gra rods that no discretionary
ils are "presently" required to continue operation of the cogeneration facility.
The City is confusing a "project" required to be evaluated under CEQA with each
's separate, discretionary approval. Such a piece -meal enviroanental analysis is
cly prohibited. Under CEQA, "project" is defined as "the activity which is being approved
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Planning Commission
City f Newport Beach
Janu 31,2005
and which may be subject to several discretionary approvals by goverr mental agencies. The term
"prof t" does not mean each separate governmental approval" (CEQA Cnddelines see.
1537 (e)). The City is required to disclose, analyze, and mitigate the cumulative environmental
impa as of the existing and proposed cogeneration facility expansion and the Master Plan
Updi te, including but not limited to visual, air quality, and noise impa As.
2. The City is Omitting and Unnecessarily Restricting Feasible Noise Mitigation
Measures.
The Draft E1R and Responses states, without evidentiary support, that enclosing the
loadg dock need not be analyzed or considered as it was determined not to be feasible. Under
the Fanned Community Development Criteria ( "Criteria ") applicable to the Project site, Hoag is
requ ed to submit a report analyzing the feasibility and sound attenuat ion .implications of
encic sing the loading dock area. "If enclosure is determined to lie physically feasible and
effec 've in reducing noise impacts along the service access road, enclosure shall be required"
(Crit�na, p. 19).
1 The Responses state that extensive noise studies and analyses of potential mitigation
mea.Wres that indicate there are no feasible CEQA mitigation measures to reduce noise levels at
the 1 ading dock (Responses, P. 3 -149). The Association submitted a -Formal Public Records Act
requbst for, among other things, all documents related to the Draft SEIR for the Master Paln
Updbte. The City produced no report as requited by the Criteria, and n0 "extensive noise studies
and analysis of potential mitigation measures" demonstrating that enclosing the loading dock is
not dphysically feasible and effective in reducing noise impacts". Instead, the City is eliminating
the requirement to enclose the loading dock on grounds that doing so would not reduce noise
sufficiently to achieve the City's Noise Ordinance. This is not the standard required by the
Critt ia or CEQA. As the City acknowledged in the Draft SEIR, the City cannot reject a feasible
mitt anon measure such as enclosing the loading dock simply because: it will not mitigate
imp to to a level below significant. If the mitigation measure is feasible and would
sub Bally reduce the Project's environmental impacts, it must be at.opted. There is no
evidence in the record supporting the City's outright elimination of en losing the loading dock
area,] the City's conclusion that the mitigation of such an enclosure would be "minimal ", or the
Cityddis determination that enclosing the loading dock area is otherwise infeasible.
ae Association appreciates the City's willingness to add a new mitigation measure
ing Hoag to offer certain adjoining residents dual pane windows (Responses, p. 3 -11).
ver, the mitigation measure includes six qualifications and restri ,tions that work against
Ming the existing and future noise impacts on the adjacent reside its, and serve to relieve
of its mitigation obligations;
Limiting the program to dual -pane glass with no performance standard when the Draft
SEIR specifically discussed that the level of sound attenuatior is dependent upon the
quality of the retrofitted windows (Draft SEIR pp. 3.4 -35);
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Planning Commission
City �f Newport Beach
January 31, 2008
A mandatory 14-day response period for homeowners to notify Hoag of their interest in
participating in the program;
Replacement of only those windows that do not already have emal pane glass;
The requirement for the Association to enter into a contract with a third -party contractor
and administer the program without providing reimbursement of the Association's
administrative costs of doing so;
An upper limit of $150,000 on the window replacement prognan and related "patch -up
WOW; and,
A mandatory 60-day period for the Association to request reimbursement following
completion of the work.
The proposed new mitigation measure must be revised to eliminate all such restrictions
and require Hoag to establish an adequate fund from which Owners can draw to pay for
ins ration upgraded windows as a condition of project approval.
The Association also appreciates that the City is examining the feasibility of a partial
we of the main loading dock (Staff Report for January 31, 2008, Planning Commission
('Staff Report"), at p. 18). 'Me. Association requests the opportunity to comment on any
xl enclosure and the noise attenuation studies associated with this mitigation measure.
3. Third party Oversight is Necessary to Ensure Proposed Mitigation Measures are
Folly Enforceable Because the City Has Failed to Enforce Jlreviously Adopted
Standards and Mitigation Measures Applicable to Hoag's 7'reviously- Approved
j Operations.
It has long been the case that, instead of mitigating environmental impacts resulting from
the e dsting operations, the City and Hoag react (if at all) after the environmental impacts have
❑ d. Perhaps this is the result of Hoag's political influence over the City. Whatever the
reascin, the adjoining residents have had to bear the brunt of the existing operation's impacts
despite the existence of ordinances, agreements, and mitigation measures approved to prevent
The Responses admit that the existing loading dock activities `exceed the Noise
Ord limits on a regular basis" and that the frequency of high no se is expected to increase
by iliereased truck activity (Responses, p. 3 -13 — 3 -14). The City plans to "address" this issue by
c rnplctely removing the Noise Ordinance limits applicable to the loading dock (Responses, p. 3-
14).
The Responses state that the planned addition of a fourth cooling tower at the
cog oration facility may exceed the Noise Ordinance standards, that the City would need to
take �neasurements once the fourth cooling tower is operational and de:tetmine whether it is in
compliance, with the Noise Ordinance. if not, then the City would regdue Hoag to correct the
situ#ion to maintain compliance with the Noise Ordinance limits (p. 3 -14). However as
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City f, Newport Beach
Jan 31, 2008
disAsed in the Responses, the City has not enfarced Noise Ordinance violations against Hoag
in thg past. Rather, it seeks to eliminate the standard altogether.
Based on the City's failure to monitor and mitigate existing operation at the Project site
its clear obligation to do so, the proposed mitigation is not "fulty enforceable" as CEQA
s without third party oversight
Also, with regard to the Association's concerns about the nononnpliance with the annual
eon liance review, page 9 of the Staff Report states that "staff is prep;uing a report for the City
Cc ed's consideration that outlines construction activities conducted since 1999 and related
cam lianee issues" (Staff Report, at p. 9). Staff anticipates that the annual compliance review
will 9ccur concwrently with the City Council's consideration of Hoag's subject application. The
Association requests an opportunity to review the report prepared by Taff and to comment on the
findings in anticipation of the City Council hearing on the Project and Draft SE1R, and annual
c omp 'fiance review.
4. 1 Hoag and the City are precluded from Changing the Location of Development at
the Project Site Over the Objection of the Association '%Rviidenta.
The Development Agreement imposes unchangeable restrictions on the location of
development set forth in the Master Plan and Development Agreemenr until 2019 (Development
Afire rne:nt sections 1.6, 6.5(b), 8.2). In the Responses, the City incorrectly summarizes the
Dew eglopment Agreement as reslxioting only the total building height and floor area, but not the
allowable location of development. The Master Plan Update violates the Development
Agre ement restrictions by allowing Hoag to change the location of allowable maximum
development within the development zones established by the Master Plan prior to 2019.
DeveWhile acknowledging the Association's concern that the application violates the existing
lopment Agreement that prohibits increasing the maximum permitted gross floor area or the
maximum building heights on the Lower Campus, the Staff Report states that "these
ciTc mmstanees are not present" (p. 22). However, the Staff Report also states that the "most
sign>cant change is to the maximum allowable building areas of 990,349 sf for the Upper
Campus if all 225,000 sf are allocated from the Lower Campus to the `Jpper Campus and
577,$89 sf for the Lower Campus ... " (p. 17). Thus, staffs position is contradictory on
wbe4w the proposed Project increases the maximum floor area allow,A on the Lower Campus
proscribed by Section 6.5 of the Development Agreement.
The City also incorrectly states that the Development Agreement is not enforceable by
ssociation's property owners because the contract does net state: t is intended to benefit
and the building limitations imposed on Hoag were not promised to adjoining landowners
as the Association's homeowners. However, the 25 -year limitati Dn on allowable building
• the Master Plan and Development Agreement was imposed expressly for the benefit of
ining property owners" (see Development Agreement sections 1.6, 8.1). The Development
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Planning Commission
City pf Newport Beach
Jana 31,2008
Agm ment reference the adjoining Villa Balboa and Seafaire properties no less than 14 times, for
outai mbering references to the "general public" or residents of the City. Likewise, the Master
Plan references adjoining properties 15 times and depicts the Vi lla Balboa residences adjoining
the I oag Master Plan in exhibits throughout the plan.
California law permits a third party beneficiary to enforce the turns of a contract made
for ith benefit. A third party beneficiary's rights under a contract are not based on the existence
of art actual contractual relationship between the parties, but on the laves recognition that the
acts f the contracting parties created a duty and established "privity" i a legal relationship)
betw en the promisor (in this case, the City and Hoag) and the beneficiary (in this case, the
Assn iation's residents, among other adjacent property owners). (Civ. Code, § 15S9; Mercury
Cas Co. v. Maloney (2003) 113 Cal.App.4th 799.) California Civil Code section 1559 states: "A
coati t, made expressly for the benefit of a third person, maybe enfos ced by him at any time
befo the parties thereto rescind it." The.cantract need not identify thu patty by Hama to confer
such third party benefit. It is sufficient if the claimant belongs to a d ass of persons for whose
bene t it was made. (Principal Mutual Life Ins. Co. v. Darr, Pave, McCord & Freedman (1998)
65 .App.4th 1469,1485-86.)
A third party may qualify as a contract beneficiary where the contracting parties must
have intended to benefit that individual, an intent which must appear in the terms of the
agre�ment. (M.) Section 1.6 of the Development Agreement shows th a intent.of the City and
Hoag to protect the interest of adjacent property owners, stating that "[tlhis Agreement ...
provides assurance to adjoining property owners that limits on the height of the structures and
amo&t of development as specified in the Master Plan and this Agreement will remain in full
ford and effect for a period of twenty—five years." (Development Agreement, p. 2.) The
Development Agreement further acknowledges the intent to protect thu Association's residents
in S & tion 8.1: "The City and Hoag agree that . _ . the Master Plan and this Agreement confer
benelts on the public and nearby residents by imposing longterm restietions on the height,
amount and location of development [of the Project] as well as the put lic improvements
desc>4ibed in Section 8.2." (Development Agreement, pp. 13 -14.)
The City's interpretation of Govenunent Code section 65865.4 to preclude enforcement
of thidevelopment agreement by the Association's homeowners, as third parties beneficiary, is
misg ded. This section provides that "a development agreement shall be enforceable by any
party thereto" and does not expressly exclude intended third party ben{:$ciaries. Thus, the
Asso iation, as an express, intended third patty beneficiary has standir g to enforce the
Dev lopment Agreement between the City and Hoag.
Development agreements are subject to California contract law, For example, an action
for b each of a development agreement is subject to the normal breach of contract statute of
limithtions. (ne Legacy Group v. City of Wasco (2003) 106 Ca1.App.4Eth 1305, 1312 -13 [90 -day
statute of limitations to attach or review a decision of the city council ocinceming a project does
not 4ply to decisions concerning the adoption or amendment of a devAtipment agreement or
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"1. Commission
City bfNewport Beach
January 31, 2008
interpretation of a clause therein].) The City has not provided any authority to support the
position that contract law does not apply to development agreements.
However, irrespective of the City's interpretation of Government Code section 65865.4,
the A ssociation's homeowners have standing to challenge or otherwise: enforce the Development
Agr ent through administrative mandamus. An amendment to the Development Agreement is
prop sed as part of the proposed Project and Draft SEIR. Approval of this amendment would be
considered a legislative act by the City and is subject to challenge by the Association or any
othei member of the public that participates in the administrative procoss. (Santa Margarita
Area Residents Together v. County of San Luis Obispo (2000) 84 Cal.A.pp.4th 221.) Also,
becai ise approval of a development agreement is a legislative act, it must be approved by
ordir be consistent with the general plan and any specific plan, and is subject to repeal by
refer ndum. (Gov't Code, § 65867.5.)
The Association's homeowners have objected to the proposed amendments to the
pment Agreement and Master Plan against their interests. We urge the City to negotiate
ble amendments and mitigation measures with the affected adjoining landowners.
. 1 A Subsequent Wt is required.
The City is mistaken in its amclusion that a Subsequent DEIR is required only where the
s to the project result in an increase in the severity of effects: Lt this case, the City is
ng to exempt all loading dock delivery vehicles and the loading and unloading of delivery
s from "any applicable noise. standards" (Responses, p. 3 -6). The Responses state that the
Plan Update "could result in an additional increase in activity ax the loading dock"
rises, p. 3 -13). By approving the Project, the City would be increasing the significant
venerating activities, and removing the noise standards that apply to the present operations
admittedly are regularly exceeded). A subsequent EIR is necessary to evaluate the City's
it to change the circumstances under which the existing operati ins are carried out, to
e and mitigate the substantial increase in already - significant noise impacts adjacent to
g residences (CSQA Guidelines, § 15162(a)).
6. Request for further opportunity to comment on new information related to the
cogeneration facility's impacts.
The Staff Report acknowledges the Association's concerns abaft Hoag's failure to
mitil ate impacts from the cogeneration facility's plumes (p. 10). StaB'states that "information to
date ggests that mitigating the water vapor is technically feasible, cc mplete mitigation may not
be passible and the costs of doing so appear to be significant" (pp. 10 -11). Staff further states
that the "City is presently reviewing this issue in preparation for the City Council's review of the
Development Agreement" (p. 11).
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Planing Commission
City of Newport Beach
January 31, 2008
Pag4
We appreciate the City's willingness to look further into this important issue. We
and stand that the City has ruined Fluor Corporation (`Fluor'D to conduct this investigation of
the generation plant plumes. The Association requests a copy of any analysis or report
prep ed by Flour and an opportunity to submit furtber comments to the City responding to the
Same prior to the City Council hearing on the Project and SE1R.
Thank you for this opportunity to provide supplemental comments to the Project and
Draft j SEIR. Please contact me if you have any questions.
Respectfully submitted,
JACKSON DEMARCO TIDUS PETERSEN &
PECKENPAUGH
By:
Michele A. staples
Attorneys for Villa Balboa Community Association
Attar ant: Planned Community Development Criteria and District Regulations, Exhibit 3
cc: Mayor Edward D. Selich*
Mayor Pro Tom Leslie Daigle*
City Councilmember Keith D. Curry*
City Councilmember Steven Rosaus)c*
City Councilmember Nancy Gardner*
City Councilmember Michael F. Henn*
City Councilmember Don Webb*
Mr. Homer Bludau, City Manager*
Mr. Jim Campbell, Planning Department*
Robin Clauson, Esq., City Attorney*
*Via Facsimile, With Attachment.
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Jackson DeMarco Letter, Dated January 31, 2008
Comment 1 — Illegally Piecemealing due to Cogeneration Facility
The commenter provided comments on the Draft EIR stating that the cogeneration facility is a
part of the Master Plan Update Project.
Response
The City disagrees with the commenter, the cogeneration facility is not part of the project. The
City plans to address it as part of the Council's compliance review. This comment does not raise
any new issues that have not been adequately addressed in the Final EIR, inclusive of the
responses to comments and the administrative record.
Comment 2 —Omission of Necessary Feasible Noise Mitigation
The commenter indicates that additional substantiation if required regarding the feasibility of
enclosing the loading dock. The commenter also provided comments on the proposed window
and sliding glass door improvements at 260 Cagney Lane and 280 Cagney Lane.
Response
1. Loading dock enclosure was considered by staff and due to high cost and limited
effectiveness, especially in the light of the soundwall now proposed, the alternative was
considered infeasible. This issue was discussed at the February 7, 2008 Planning
Commission hearing.
2. Project Design Feature 3.4 -1 (window and slider modifications) has been revised since
the responses to comments were prepared. The PDF has been modified to include
balcony barriers and wall upgrades. The same basic limitations in the provision remain
and the comment noted.
Comment 3 — Third -Party Oversight is Necessary to Ensure Mitigation Measures are
Enforceable
The commenter states her concern that mitigation measures will not be implemented and
enforced.
Response
City plans to add clarifying language to the Final EIR, Mitigation Monitoring and Reporting
Program, and PC Text to further emphasize the requirements for compliance with CEQA and
implementation of mitigation measures, standard conditions, and Project Design Features.
Council compliance review will occur with Council's consideration of the entitlement application.
The City does not agree with the request to have a third -party oversight. Public notification of
the Council compliance reviews is required and reports associated with that review will be
available for review and comment.
011.1'-1
Comment 4 — Hoag and the City are precluded from changing the location of
Development over the objection of Villa Balboa
The commenter provided this comment during the public review period for the Draft EIR stating
that the City cannot modify the Hoag Master Plan without the approval of the Villa Balboa
Homeowners Association.
Response
The City disagrees with the commenter and addressed this issue in the responses to
comments. This comment does not raise any new issues that have not been adequately
addressed in the Final EIR, inclusive of the responses to comments and the administrative
record.
Comment 5 — Subsequent EIR is Necessary
The commenter restates the comment previously made during the public review period for the
Draft EIR that a Subsequent EIR is required.
Response
Expansion of the Hospital was approved in 1992 resulting in increased activity at the loading
dock. The primary source of noise at the dock is from delivery trucks. While more delivery truck
visits to the loading dock could occur with the buildout of the Master Plan, it is likely that
increased deliveries would be accommodated through larger loads in a similar number of trucks.
An increase in the number of trucks is not expected to result in an increase in noise levels
generated by the loading dock but would instead increase the frequency of high noise levels
generated by truck activity. The Master Plan Update Draft EIR notes that activities in the loading
dock area currently and are expected to continue to exceed the noise limits contained in the
Noise Ordinance. Currently, the loading dock does not meet the levels established by the Noise
Ordinance for Zone III — Mixed Use category (60 dBA [Leq] or 80 dBA [Lmax] during the
daytime) which is the applicable standard for the condominiums adjacent to Hoag.
Therefore, the Master Plan Update Project as modified to include the proposed soundwall and
building upgrades would reduce noise impacts at Villa Balboa associated with loading and
unloading activities at the loading dock and vehicle noise. This issue has been adequately
addressed in the Final EIR. CEQA Guidelines §15132 states that the Final EIR consists of
(a) The draft EIR or a revision of the draft.
(b) Comments and recommendations received on the draft EIR either verbatim or in
summary.
(c) A list of persons, organizations, and public agencies commenting on the draft
EIR.
(d) The responses of the Lead Agency to significant environmental points raised in
the review and consultation process.
(e) Any other information added by the Lead Agency.
x1.15
Comment 6 — Request for further opportunity to comment on new information related to
the Cogeneration Facility
The commenter requests any new information on the cogeneration facility.
Response
Everyone retains the ability to comment on new information. With respect to the Fluor report on
the cogeneration facility, the report has been made available to the public.
ak.►4
MILES ' CHEN LAW GROUP _
9911 Irvine Center Drive, Suite 150 - Irvine, C4 9261$ A PROFESSIONAL C:ORPORATiON
Phone: 949.7881425 � Fax (9491789-1991
January 31, 3008
SENT VIA L•LEC'TRONIC MAIL IJCa mpbell (e?citp.irenporr- hearJr. ca. its/
Mr. James Campbell
Senior Planner
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92685 -8915
Ret Hoag Memorial Hospital Presbyterian Master Plan Amendment
Draft Supplemental Environmental Impact Report
State Clearinghouse No. 1991071003)
Mr. Campbell:
This firm represents Friends of Sunsct View Park, an association of residents and members of the community
that are concerned with the aforenieutioned project (the "Hoag Expansion Project') and the significant.
unmitigated environmental impacts to public resources caused by dte Hoag Expansion Project. We appreciate
this opportunity to provide comments to the aforementioned Draft Supplemental Environmental Impact Rcport
(Draft HIR" ). Having a limited time to review eomments submitted by other parties and the Responses to
Comments prepared by the City of Newport Beach (the °C. °ity "' >, we have attempted to not repeat those
comments already made on the Draft E-IR. Instead, f%om time to time this commentary may reference prior
commentate and documents already submitted into the record of proceeding.
1. Uncertainty Regarding Coastal Commission Review — Flawed Public Notice
TheCoastai Commission has jurisdiction over any development activities in the coastal zone, and therefore. any
Changes caused by the Hoag Expansion Project that affect the Lower Campus or rite Upper Campus require a
coastal development permit or CDP Amendment.
C9,\ -I I-
James Campbell
January 31, 2008
Page 2 of 8
The California Coastal Act requires that a coastal development permit be obtained betare undertaking any
development in the coastal zone. (Cal. Pub. Res. Code § 30600(a).) The Hoag Master Plan, in its entirety, is an
integrated physical construction subject to the permit authority of the Coastal Commission- for both the Lower
and Upper Campus. (See, Cal. Code Rags. Tit. 14 § 1.3050.5(b) [development involving integrated physical
construction requires a coastal development permit for construction within and outside the coastal zone}.) The
Hoag Expansion Project also results in an intensification of use affecting the Lower Campus and Upper
Campus, and therefore a CDP Amendment is required for the Hoag Expansion. Project.
The Draft EIR, Responses to Comments, and Development Agreement contain various references to the review
authority of the California Coastal Commission relevant to the Hoag Expansion Project. Although the Staff
Report and associated documents also reference the future review by the Coastal Commission, the public
remains unclear about the extent and nature of the Coastal Commission review for the Hoag Expansion Pmject.
(See, e.g., Draft EIR, p. 1 -4 ["Although not a party to the original Development Agreement. the California
Coastal Commission (CCC) would review and approve the Development Agreement."].) In contrast, the
Coastal Commission Stafl'Report far CDP 5 702 -325 references the history of Hoag Hospital and specifically
notes the Coastal Commission's 1994 approval of the Development Agreement, approval of a Land Use Plan
amendment (LCPA 1 -93 Part B) and approval of an earlier coastal development permit (5 -93 -253. Hoag).
Based on the intensification of use proposed for the Upper Campus, relative to the lower campus, the Hoag
Expansion Project is proposing "development" that is subject to a Coastal Development Permit. Clearly a LCP
Amendment or CDP Amendment is required for the.Floag Expansion Project. Unfortunately, the Notice or
Public Hearing does not reference an approval in concept (or otherwise) of an LCP Amendment or CDP
Amendment or any form ofCoastal Commission permit review orentitlement. Therefore, the public notice for
the Hoag Expansion Project is flawed.
Il. Potential Environmental Impacts of the Cogeneration Facility Must be Analyzed
G, summary, the City's response to commentary that the Draft EIR must analyze potential environmental
impacts caused by the cogeneration facility, is that because the Draft EIR considered the facility an "existing
condition." the Draft EIR was "neither required to assess potential impacts of the cogeneration facility
(including alleged visual and air quality impacts which are the focus of comments received on this issue) nor
was the Draft EIR required to include 'mitigation' for any alleged impacts, since the proposed Master Plan
Update Project bears no relation to the operation of the existing cogeneration facility." (See Topical Responses
p.3-3), The City stand on its own characterization of the cogeneration fheilityas a non -issue based on the fact
that the Master Plan Update Project doesn't ostensibly seek changes to the cogeneration facility itself. "Phis
explanation is a tautology and ignores the direct expansion ofthe cogenration facility Hoag Expansion Project's
likely attendant effects on the cogeneration facility.
Even if the Hoag Expansion Project doesn't seek direct changes to the cogeneration facility itself. the
expansion's attendant effects on the cogeneration facility require its inclusion. Because the cogeneration
facility will power the Hoag Expansion Project, the increased demand on the cogeneration facility (more
combustion engines needed, installation of fourth cooling tower, increased noise and air pollution effects.
effects on visual and scenic qualities caused by bigger/morc plumes. etc.) require consideration and an amended
James Campbell
January 31, 2008
Page 3 of 9
permit from the Coastal Commission. Noting the distinction between permit limits and the existing physical
setting for purposes of CEQA baseline analysis. the Draft EIR states:" ... the cogeneration facility is designed to
accommodate three additional future cogeneration natural gas internal combustion engines to meet anticipated
power and heating demand of Hoag at buiklout." However. the Draft EIR doesn't address any of the foregoing
environmental impacts except for noise. which the Draft EiR dismisses. (See Draft EIR p. 3.3 -15 and below).
In a recent CEQA decision. SCAQMD made the identical (erroneous) baseline argument that the City is
proposing in its Topical Response I - -- that a permitted cogeneration facility is considered part of "existing
conditions" and therefore not a part of the proposed project. The Court of Appeal held that SCAQMD
improperly calculated the baseline environmental setting on the basis of "merely hypothetical conditions' as
opposed to "realized physical conditions on the ground." (Communities.for a Better Eneirannrent v. South
Court Air Quality Management Disrrict. 2007 Cal. App. LE'XIS 2145 (In finding no significant efftxt,
SCAQMD improperly relied on a baseline level of permitted emissions which did not reflect existing physical
conditions]; San Joaquin Raptor Rescue Center v. County of kferced (2007) 149 Ca1.AppAth 645, 658.)
Although Hoag Hospital obtained CDP No. 5 -02 -325 for the construction of a cogeneration building of a
specified size with a "concrete cooling tower yard with four cooling towers... ", the CDP notes that if
development does not commence within two years.ofthe permit approval date or ifdevelopment is not pursued
"in a diligent manner and completed in a reasonable period of time," the permit shall expire. fifteen years is far
fiom a reasonable time period for construction and accordingly the proposed installation of a fourth cooling
tower requires either a new coastal development permit or a CDP amendment.
The scenic and visual qualities of the ocean view and Sunset View Park are considered a protected resourceand
the Hoag .Expansion Project will cause an increase in cogeneration facility plumes which will affect these
resources. Accordingly, the Hoag Expansion Project is subject to permitting authority of the Coastal
Commission. The Coastal Act protects ocean and coastal area views: ``The scenic and visual qualities of coastal
areas shall be considered and protected as a resource of public importance. Pennitted development shall be
sited and designed to protect views to and thong the ocean and scenic coastal areas. to minimize die alteration
of natural land forms, to be visuallycompatible with the character of surrounding areas. and, where feasible. to
restore and enhance visual quality in visually degraded areas." (Cal. Pub. Res. Code § 30251.) .
III. Oming Violations of the Development Agreement and PC Text Provisions Result in a
Sipnificant Environmental Impact Warranting a Subsequent Environmental Impact Report
Evidenec in the record indicates that the City has failed to enforce the mandates of the Development Agreement
since its execution in 1992. Rather than enforce dic,provisions of the Development Agrecmem, the City and
public is now being placated by promises made by Hoag Hospital that the conditions of the Development
Agreement will be fulfilled. Many of the promises currently made by Hoag Hospital are contingent upon a
future approval by the Coastal Commission. In other instances, the City is simply proposing to modify the
terns of the Development Agreement to overlook the past fifteen (15) years of noncompliance by Hoag
Hospital and non - enforcement by the City.
The City's ongoing failure to cnlbrce the tetras of the Development Agreement has resulted in significant
environmental impacts. The many provisions of the Development Agreement were intended to mitigate
a1• %I
James Campbell
January 31, 2008
Page 4 of
potential impacts to a level of insignificance. When the provisions are not enrorccd, the significant
environmental impact results. in accordance with CEQA Guidelines § 15162. these ongoing impactsmust now
be addressed by a subsequent environmental impact report. Suction 3.3 of the Development Agreement is
controlling on this point. Section 3.3 provides in full that:
"Program EIR. Hoag acknowledges that the EIR is a ' Program EiR.' The EiR analyzes the
impacts of construction phased over time and, pursuant to CEQA, City is under a
continuing obligation to analyze Hong's requests for Project Specific Approvals to
ensure the environmental impacts associated with the request were fully addressed in
the EIR. Subsequent environmental documentation is required if this analysis reveals
enviromnental impacts not fully addressed in the program EIR. identifies new impacts, or
concludes the specific request is not consistent with the project described in the EIR. Hoag
acknowledges the right and obligation of the City and the Coastal Commission or .its
successor agency to impose additional conditions as the result of the subsequent
environmental analysis required by CEQA.`
The City has failed to undertake an Annual Review of the Development Agreement for the past fifteen (15)
years and this omission would indicate that prior to the review of the Hoag Expansion Project. the City failed to
undertake the obligation of ongoing environmental analysis within the context of the Program EiR. (Sce, also.
DA Sution 5.3 [ °Annual Review shall include a detailed report of compliance with the various conditions and
mitigation measures... The report shall include an analysis of the view impacts. "].)
Of particular interest is the purposeful use ofthe phrase "subsequent environmental documentation" in Section
3.3. With theDevel opment Agreement's acknowl edgement oft lie Program EIRand phased nature of the Hoag
Expansion Project, Section 3.3 correctly refers to subsequent as opposed to. supplemental environmental
documentation. This acknowledgment makes tremendous sense under the current circumstances when the
Hoag Expansion Project is tiering offa fifteen (15) year old Program EIR that is, to say the least; at the end of
its shelf life (unlike line wine and distilled spirits, programmatic EIRsdo not age graceful )y). By comparison.
the City's General Plan Update EiR is tittle more than one (1) year old.
Violation of, or the ongoing failure by the City to enforce. Development Agreement and PC Text conditions
results is "environmental impacts not fully addressed in the program EiR," "new impacts,` and a resulting
project that "is not consistent with the project described in the EIR." (See. Staff Report, Exhibit 4 [emitted
annual review to address subsequent enviromiAcrital documentation: noise level violations by cogeneration
facility: aesthetic impacts of cogeneration facility due to condensate. steam_ and exhaust gas plumes. omitted
screeningofinechanieal equipment, major mechanical equipment located on cogeneration facility roof.,., failure
to enforce and prepare view, impact analysis: failure.to demonstrate compliance with SCAQMD Rule 402
(Public Nuisance): failure to enforce and prepare air quality analysis; failure to enforce or comply with
maximum building heights:. sound levels at property line exceeding 55dBA; failure to enforce and install
landscaping:, violation of lighting regulations:. violatiou of hours of operation; aesthetic intpac:ts ofomitted view
screening for West Coast Highway and Sunset View Park]: CEQA Guidelines § 15162; Development
Agreement 3.3.) Hence why the City is now proposing the legislative action of amending the Development
Agreement and the PC Text. Such a legislative action is merely an exoneration of ongoing violations that have
resulted in unmitigated environmental impacts.
a W• ao
James Campbell
January 31, 2008
Page 5 of 8
IV. The draft EIR Cumulative Impact Analysis is Flawed
CEQA mandates that an EIR is required if the `possible eflecls ufa project are individually limited but
cumulatively considerable" and the incremental effects of an individual project are to he "viewed in connection
nvith the effects of past, current and probable future projects." (See, Cominuniries for a Better Environment v.
California Resources Agency (2002) 103 Ca1.AppAth 98, 119. citing Pub. Res. Code § 21083).
"`[T]he relevant question'...is not crow the effect of the project at issue compares to the
preexisting; cumulative effect, but whether 'any additional amount' of effect should be
considered significant in the context of the existing cumulative effect. [Footnote omitted. 1 ...
Moreover. the basic approach set forth in [CEQA Guidelines Section 150641 seems sound —drat
is, in assessing whether a cumulative effect requires an .ECIt, the lead agency shall consider
whether the cumulative impact is significant and whether the proposed project's incremental
effects are cumulatively considerable.... in the end. the greater the existing environmental
problems are, the lower the threshold should be for treating a project's contribution to
cumulative impacts as significant. [Footnote omitted.]." (Id.)
The City asserts that the cumulative impacts analysis in the Draft EIR is adequate:because "the findings
of cumulative impacts have not changed since Final EiR :No. 142." Responses to Comments at 3 -174. Final
EIR No. 142 was adopted in 1992, To say that (he cumulative impacts have not changed since then ignores the
current state of the environment. As is detailed below, the impacts of climate change roust now be considered
as a result of A.B. 32 (which was passed in 2006, long after the Final EIR No. 142 -was certified). Greenhouse
gas emissions were certainly not analyzed in 1992 in any context. much less cumulative impacts, and they
cannot be ignored here in the Draft EIR.
The City points out that it is not required to perform its cumulative impact analysis by using a list of
projects (the `list method "). Instead,. the City relies on previously- prepared cumulative impact analysis: i.e.. the
cumulative impact analysis in Final EIR No. 142 (f he " summary-of- projection' method). ffowever, "f u]se ol'a
[prior] planning document does not preclude challenge to the accuracy or sufficiency ofthe cumulative impacts
analysis:' (Bakersfield ('itizens. for Local Control v. 0i. of Bakersfield (2004)124 Cal.App.4th 1184. 1217.)
in other words, although this "summary -of- projections' method complies with CEQA, it is not appropriate
where the projections in the previous analysis are inaccurate or outdated. (Id.) Herc, the cumulative impact
analysis in Final EIR No. 142 is both inaccurate (because it tails to consider the impact ofGHG emission~) and
outdated (it was perfoi -mcd 15 years ago). As such. the cumulative impact analysis in the Draft EIR is
inadequate.
While the Draft SEIR prepared for the Hoag health Center nury not be "binding upon the Draft EIR for
the Master Plan Update." it is a stark contras( to the current Drail EIR in terns of identifying cumulative
project(.
James Campbell
January 31, 2008
Page 6 of 8
V. The Draft E1R's Air Quality Assessment Fails to Address Climate Change
The Draft EIR is inadequate because it fails to analyze global warming and the Hoag Expansion Project's
greenhouse gas emissions. The project will result in foreseeable and quaitiliableemissions. UnderCEQA,dhe
City has an obligation to consider global warming impacts in the draft EIR. The Hoag Expansion Project, as
describuxl, could result in significant increases in emissions of greenhouse gases that cause global warming, and
any increase in emissions will burden State mandates to meet the greenhouse gas reduction requirements of
Assembly Bill 32.
The Intergovernmental Panel on Climate Change of the United Nations recently published overwhelming
evidence that global warming is occurring and i5 caused by human activities. (Clitstaie Change 2007: The
Physical Science .Basis, Sumtucrry, fcrrPotieytrrcrkcrs [Fourth Assessment Report for the IPCC, February 20071.)
In our State, the Cahfi:)rnia Climate Change Center reports temperature increases of between 4.7 and 10.5
degrees Fahrenheit by the end of the century. (Amy Lynd Luers, Daniel R. Cayan, et al. Our Changing
Climate: Assessing the Risks to California, July 2006, p. 2 [Report prepared at the direction of CaIEPA
pursuant to its authority under Executive Order 5 -3 -5.) This climate change will result in serious
environmental impacts including, but not limited to, substantial loss of snow pack, increased risk ofwildfires
by approximately 55 %, and the reduction of quantity and quality of agricultural products. (Id. at pp. 110.)
In 2005, the California Energy Commission reported that Californiaproduced 493 million metric tonsofearbon
dioxide equivalent greenhouse gas ('-GHG ") emissions in 2002. (Gerry Beemis and Jennifer Allen. Ini enlory
ref California Greenhouse Gas Fmissions and ,Sinks: 1990 to 2002 V"pdale (June 2002).) Transportation
accounts for 41.2% of GHG emissions in California. (Id. at p. 5.) To counteract the warming trend, on June 1,
2005. Governor Schwarzenegger issued Executive Order 5 -3 -05 and set GHG emission reduction targets for the
State. These GHG emission reduction targets are: ])by 2010; reduce GHG emission targets to 2000 levels'. 2)
by 2020, reduce GHG emission targets to 1990 levels, 3) by 2050, reduce GHG emission targets to 80% below
1990 levels.
On September 27, 2006, the Governor signed Assembly Bill 32, styled the California Global Wanning
Solutions Act of 2006, into law ("AB 32 "). (See, Cal. Health & Safety Code Section 38500 et seq.) AB 32
requires reduction of Statc GHG emissions to 1990IcvcIs by2020. (Cal. Hralth & Safety Code section 38550.)
CEQA and the CEQA Guidelines provide that in any of thetollowing circumstances, a finding must be made
that the project may have a significant effect oil the environnhcnt:
"A lead agency shall find that project may have a significant effect on the environment and
thereby require an EIR to he prepared for the projeet where there is substantial evidence, in
light of the whole record. that any of the ii>llowiug conditions may occur:... (3) the project,
has possible environmental effects (hat are individually limited but cumulatively
considerable: "Cumulatively considerable" means that the incremental effects of an
individual project are significant when viewed in connection with theetleets ofpastprojects,
the effects of other current projects. and the effects of probable future projects." (Cal. Pub.
Resources Code Section 21083(b); CEQA Guidelines Section 15005(a)(3).)
;n .92
James Campbell
January 31, 2008
Page 7 of 8
The Courts have confirmed the importance of addressing cumulative impacts in the context of air quality
assessment.
"One of the most important environmental lessons evident from past experience is that
environmental damage often occurs incrementally from a variety of small sources. These
sources appear insignificant, assuming threatening dimensions only when considered in light
of the other sources with which they interact. Perhaps the best example is air pollution,
where thousands of relatively small sources of pollution cause a serious environmental health
problem. CEQA has responded to this problem ofineremental environmental degradation by
requiring analysis of cumulative impacts." (Kings County Farm Bureau v. County of
ffan/orcf (1990) 221 Cal.App.3d 692, 720.)
While comprehensive regulations to implement AB 32 are not yet in place at a State level, the many projects
proposed within the City of Newport Beach will contribute cumulatively to the GRG load in the environment
and, once approved, will continue to cause environmental degradation well beyond 2010. Accordingly, the City
has a current obligation under CEQA to analyze potential global warming impacts of the Hoag Expansion
Project, on a cumulative basis, and evaluate alternatives and mitigation measures that would avoid, rectify or
reduce any unavoidable adverse global warning impacts caused by cumulative City projects.
Measures proposed by the Climate Action 'ream Report to Governor Schwarzenegger and the California
Legislature (CalEPA, March 2006) include:
Efficiency: "Incorporating energy efficiency and climate change emissions reduction measures
into the policy framework governing land use and transportation..."
Smart Land Use: "encourage jobs/housing proximity. promote transit oriented development,
and encourage high- density residential/commercial development along transit corridors.
Intelligent Transportation Systems: "improve operational efficiency oftransportation systems
and movement of people, goods and services."
In addition, Courts have confirmed the application of fee -based mitigation programs for cumulative impacts to
the environment, based on titir -share infrastructure contributions by individual projects. (faindtvatch N9onterey
County v. C.ounly ofNtontprey (2007) 2007 Cal.App.LEXIS 225 [ citing Save our Peninsula Committee v.
Monferey County Btf rlf' Supervisors (2001) 87 Cal.App.4th 99 [substantial evidence supporting county
determination that a traffic impact fee would mitigate traffic congestion].
The Draft E1R is inadequate and in violation of CEQA to the extent that it fails to consider the potential
cumulative air quality impacts caused by the Hoag Expansion Project. Feasible mitigation measures for GHG
presently exist, including the financially- based. systemically- based, land use based, and efficiency -based
mitigation measures previously mentioned.
James Campbell
January 31, 2008
Page 8 of 8
VI. Conclusion
The Draft EIR, the PC Text Amendments. and the DA Amendments illustrate past and ongoing violations of
standards and conditions applicable to the Hoag Hospital Master Plan. The Draft EIR for the Hoag Expansion
Project must now address these violations that have resulted in significant environmental impacts. The City has
recently gone out its way to review and even construe possible violations of use permits for various
establishments in the City (e.g., review of Use Permit No. 3485: Police Task Force convened for review of
restaurant and bar operations). Enforcing the provisions of the Development Agreement with Hoag Hospital
should receive no lesser scrutiny from the City.
The Draft EIR must address the existing physical setting of the Lower and Upper Campus instead of relying
upon passing references to a Program EIR or the permit authority held by Hoag Hospital. Likewise, the Draft
EIR and public notice of these proceedings must.recognize the Coastal Commission's permit authority over the
Hoag Expansion Project instead of embracing a vague and amorphous project description stemming from an
EIR that is fifteen (15) years old.
Finally, the City should not entertain false assurance made by Hoag Hospital to further convolute the confusion
over the proposed moving target project that is styled the Hoag Expansion Project. By letter dated August 30,
2045, Hoag Hospital informed its neighbors that the hospital was in the process of building the cogeneration
facility on the lower campus. The letter noted:
"During the testing process, you may hear equipment noise and notice steam coming from
the facility. The sounds are the result of external engines being used during testing which
will be removed once in operation and the steam is a by- product of the testing, both will be
eliminated once the Co- Generation plant is in full operation."
Thank you for the opportunity to provide this commentary and for your attention to these matters. Please do not
hesitate to call on me if you have any questions or concerns.
Very truly yours,
MILLS r CHIN LAw GRoup. P.C.
I3v: _
Stephen M. Milcs, Esq.
SMM:Iak
cc: Honorable Members of the Newport Beach Planning Commission (via Electronic Mail)
aI.aLi
Miles Chen Law Group, Letter Dated January 31, 2008
Comment 1: Uncertainty Regarding Coastal Commission Review— Flawed Public
Notice
The commenter notes that the Coastal Commission has jurisdiction over development
activities in the coastal zone and the Hoag Master Plan Update Project requires a
Coastal Development Permit (CDP) or CDP amendment. The commenter states that
since the proposed project would intensify the Upper Campus, this constitutes a "project"
that would be subject to a CDP. The commenter states that the public hearing notice is
flawed because the notice does not indicate that a Coastal Commission action is
required.
Response
California Government Code §65094 identifies what information is required in a public
hearing notice: As used in this title, "notice of a public hearing"
...a notice that includes the date, time, and place of a public hearing, the
identity of the hearing body or officer, a general explanation of the matter to
be considered, and a general description, in text or by diagram, of the
location of the real property, if any, that is the subject of the hearing.
From the Responses to Comments: As stated in Section 6.5 of the Development
Agreement, the California Coastal Commission (CCC) must approve amendments to the
Development Agreement until such time as the Local Costal Program has been certified.
Because the Local Costal Program is not yet fully certified within the City of Newport
Beach, the CCC will have authority to approve the amendment to the Development
Agreement incorporated as part of the proposed Master Plan Update Project. It is for this
reason that the CCC is listed as a responsible agency in the Draft EIR.
From the Land Use section of the Draft EIR: The Lower Campus in its entirety and
0.21 acre of the Upper Campus are within the coastal zone. The LCP Land Use Plan
designates these areas as 'Public Facilities." The Public Facilities designation is
"intended to provide public and quasi - public facilities, including educational institutions,
cultural institutions, government facilities, libraries, community centers, hospitals,
religious institutions, and utilities. Development intensity ranges from a floor area to land
area ratio of 0.50 to 1.00."
Intensification of the Upper Campus would not be subject to Coastal Commission
approval.
Comment 2: Potential Environmental Impacts of the Cogeneration Facility must be
Analyzed
The commenter states that the cogeneration facility is a part of the project, in part
because the proposed Master Plan Update Project would increase the demand on the
existing cogeneration facility.
Response
The City disagrees with the commenter's opinion that the cogeneration facility is a part of
the proposed project. The commenter appears to misunderstand the project description.
The Master Plan Update Project would not increase the square footage at Hoag; it would
only allow for the reallocation of up to 225,000 square feet (sf) of existing but not
constructed development from the Lower Campus to the Upper Campus. The existing
cogeneration facility, as approved, accommodates buildout of Hoag under either the
existing Master Plan or amendment to the Master Plan.
Comment 3: Ongoing Violations of the Development Agreement and PC Text
Resulting in Environmental Impacts Warranting a Subsequent EIR
The commenter states that a subsequent EIR is required because of alleged violations
of the DA and PC Text, as well as the phrase "subsequent environmental
documentation" in the Development Agreement.
Response
The City disagrees with the commenter. This comment does not raise any new issues
that have not been adequately addressed in the Final EIR, inclusive of the responses to
comments and the administrative record.
Comment 4: Draft EIR Cumulative Impact Analysis is Flawed
The commenter states that the EIR did not adequately address cumulative impacts.
Response
The City disagrees with the commenter. This comment does not raise any new issues
that have not been adequately addressed in the Final EIR, inclusive of the responses to
comments and the administrative record.
From the Responses to Comments: The commenter erroneously states that
cumulative impact analyses in the Draft EIR are inadequate for failing to follow
methodologies outlined in the CEQA Guidelines for such analyses. It should first be
noted that as a supplemental EIR, the Master Plan Update Draft EIR need only discuss
"the information necessary to make the previous EIR adequate for the project as
revised" (see CEQA Guidelines §15163(b)). Final EIR No. 142 contained a complete
discussion of cumulative impacts for development of the Hoag Master Plan (see Final
EIR No. 142, page 5- 1 -10). The Draft EIR need only discuss those areas where
implementation of the proposed project might modify conclusions reached in Final EIR
No. 142. The Draft EIR did this. The commenter implies that only a cumulative impact
analysis using a list of projects would be sufficient for the Draft EIR; however, the CEQA
Guidelines cited in the comment allow for multiple methods of analysis, not solely the
"list" method. As is discussed further, below, the cumulative analyses provided in the
Draft EIR, are appropriate and consistent with the methodologies required of CEQA.
Comment 5: Draft EIR Must Address Climate Change
The commenter states that the EIR should have addressed climate change
a�.ac0
Response
The City disagrees with the commenter. The City's reasons are outlined below but it
should also be noted that the City did not receive any comments regarding climate
change on the Notice of Preparation or during the public review period for the Draft EIR.
According to California court decisions, the City is not required to analyze the modified
project's impact on climate change in the SEIR. Currently, there is no California
regulation that requires cities to provide such an analysis on climate change in an SEIR
context.
In Natural Resources Defense Council (the "NRDC ") v. Reclamation Board of the
Resources Agency of the State of California (the "Reclamation Board "), the NRDC
challenged the Reclamation Board's approval of two permits following a modification to
the original project plan in Lathrop, California.' The project's .CEQA documentation
included an original EIR, prepared in 1995 -96; an SEIR, prepared in 2003; and an
Addendum to the SEIR, prepared in 2005. The NRDC alleged that the Reclamation
Board violated CEQA by failing to prepare a full SEIR before approving the permits.
They claimed that further review was required to take into account new information
regarding the impact of climate change on the region in which the project is located
pursuant to California Public Resources Section 21166.2
The court held that the NRDC's argument was unpersuasive for two reasons. First, the
concept that climate change is occurring and will have an impact in general was not
"new information" since such concepts were known to the NRDC, the public at large,
and presumably to California public agencies prior to the date of the Addendum to the
SEIR. The issue of climate change as related to the project could have been presented
to the City at that time, but it was not. Second, the NRDC's claim was unpersuasive
because even if the information regarding the effects of climate change has grown
significantly since mid -2005, the NRDC did not present any new information about its
effects as related to this project. The evidence presented by the NRDC only includes
generalized information regarding the potential effects of climate change on the State or
the area of the project as a whole, nothing that was specific to the project site itself.
Accordingly, the court found that the NRDC had not demonstrated that significant new
information has become available with regard to climate change and its effect on this
particular project such that the Reclamation Board should have performed a full
environmental review under CEQA before approving the permits.
In May 2007, another California court addressed the issue of whether an impact on
climate change was required. In American Canyon Community United for Responsible
Growth ( "AmCan ") v. City of American Canyon (the "City "), AmCan objected to the City's
' Natural Resources Defense Council v. Reclamation Board of the Resources Agency of the
State of California, et al., Case No. 06- CS01228 (Sacramento Superior Court, 2007) [hereinafter
NRDC v. Reclamation Board].
` California Public Resources Codes Section 21166 states: 'When an environmental impact
report has been prepared for a project pursuant to this division, no subsequent or supplemental
environmental impact report shall be required by the lead agency or by any responsible agency,
unless one or more of the following events occurs:... (c) New information, which was not known
and could not have been known at the time the environmental impact report was certified as
complete, becomes available."
aiii .ar- �-
approval of an addendum to the previously certified mitigated negative declaration
(MND) claiming; among other things, that it failed to analyze the project's impact on
climate change. In rejecting its claim, the court noted that AmCan failed to provide any
authority currently requiring the City to undertake an analysis on climate change
impacts]. AmCan seemed to suggest that AB 32 should have triggered further review,
but the court disagreed and found that AB 32 simply "charged the California Air
Resources Board to develop regulations on how the state would address climate change
impacts... While it may be possible that the promulgation of new climate change
regulations may trigger further environmental review of projects.., in the future, the court
fail[ed] to see how a mere legislative mandate for the creation of regulations could have
triggered review." Additionally, to the extent AmCan argued that AB 32 is "new
information" under §21166, the court found that new legislation requiring creation of
state regulations did not pertain to the particular project in question as required by
CEQA. Accordingly, the court concluded that AB 32 did not require an analysis of this
project's effect on climate change.
With respect to the proposed Master Plan Update Project, the project would allow for the
reallocation of existing approved but not constructed square footage from the Lower
Campus to the Upper Campus. The proposed modification does not change the overall
square footage for the entire project. An SEIR is being prepared to examine impacts of
the potential change on issues of land use, visual resources, traffic, air quality, and
noise. The issue raised by the commenter and addressed by the City is whether the
SEIR analyzing the effect the modification will have on the environment needed to
include an analysis of the modified project's effect on climate change. Based on the two
recent California cases, the City determined that the answer is no.
First, following the logic employed by the court in NRDC v. Reclamation Board, the effect
of climate change on this particular project as modified is not considered new
information for which an analysis on climate change is required. Even if the scientific and
political consensus regarding the existence and potential effects of climate change has
grown significantly since the original EIR was submitted in 1991 and is arguably "new
information" under §21166, the impact on climate change should not be measured as
related to this particular project, especially since the modification to the original plan only
changes the allocation of square footage already provided for in the original
Development Agreement and does not allow any new development not previously
authorized.
Additionally, the American Canyon court has determined that AB 32, nor any other
existing legislation, requires an analysis of a project's impact on climate change. No new
regulations have been adopted pursuant to the timeline set by AB 32 since the American
Canyon decision in May 2007. Accordingly, no regulations currently exist that requires
an analysis of the Master Plan Update Project's impact on climate change. It is possible
that future CARB regulations could trigger the need for p rojects to assess climate
change impacts in CEQA documents; however, per the American Canyon court, the
need for such analysis is premature currently.
It should also be noted that both NRDC v. Reclamation Board and American Canyon
dealt with subsequent and supplemental CEQA documents (an Addendum to an SEIR
and an Addendum to an MND). Much like in the Hoag situation, subsequent CEQA
documents involved in the two cases addressed project modifications, the approval of
which did not trigger the need to conduct full environmental review in an EIR. This fact,
0, .a$
and the fact that the Hoag Master Plan Update Project will not allow any new
development not already approved, furthers the rationale for not requiring, a project -
specific climate change analysis.
21 . gl
P1.RMCa1ty� � R .
February 6, 2008
�r� a
TO: CITY NEWPORT BEACH PLANNING COMMISSION
RY C. STEINBRECHER
AND GENERAL PLAN AMENDMENT REQUEST BY HOAG
iiOSPITAL
It seems that there are nine areas of wrongdoing in these
current plans by Hoag Hospital requesting 22 .5,000 square
feet variance from the master and general. plans of Newport
Beach. Many of these were not knowable before the planning
meeting of January 3i, 2008.
1, Hoag's member of their Board of Directors admitted that
these plans of Hoag's had been known to them for some time:
Why were these not voted on at the time of the Master Plan
public vote? This should be voted upon by the City in the
November election. While it may be "legal" (I don't know
that answer) to massively "amend" the master ;plan, it
certainly defies the spirit of the 'voting process.
2. The general plan; agreed to between the City and Hoag in
1992 took into account aestetics at this gateway to the
City, the heavily residential nature of the neighborhood,
the absolute limit to which traffic can be accommodated on
Hospital Road, Hoags' internal traffic and parking
potential. Obviously; some of these problems do not exist
along Coast Highray. This transfer is not a simple
shuffling of paper. It belies the ability of the City to
make any responsible agreements:. Hoag does have other
"campuses" in Irvine and Huntington Beach which could draw
from a diameter, not a radius, as in Newport Beach, Hoag
now advertises in P.FI radio, obviously seeking to make this
a regional medical center. I:s this right for this limited
space and.access?
3. Hoag took that property in 1992 in a very questionable
"sweetheart" deal.. Both the City's .space usage plans and
the Coastal Commission plans showed only "open space or
recreational." Both these were amended to specifically
allow "or hospital." That could only, obviously, be Hoag
Hospital. Further, the City allowed a "trip- light" traffic
signal and massive excavations of existing bluff, although
fill, and elimination of wetlands. The point is, Hoag got
that property. at 10. -20% of its commercial value under those
same circumstances, AND, because it is non - profit, swept it
forever off the property tax roles almost completely. They
got the first of MANY municipal.bond issues; which they
apparently did not really need to do what they said they
would. Just where does the City's wish to have a health
care provider end nd something far less laudable, such as
collusion to defraud, begin?
4. Hoag demanded every spuare.foot, even though the 175
a�•3®
2
member Friends of Cattail Cove begged for even one to 1'
acres to preserve the natural wetlands on the property:
Nope. It was necessary for Hoag's very existence, etc.,
etc. Now they admit they don't even want it. Assuming Hoag
was acting in good faith 15 years ago, how do we know we
will not have 3 quasi -ghost towers in the future as the
single tower was 15 years. ago?
5. There has been no mention whatever of what exactly is
going to happen to that property along Coast Highway if they
"transfer" their 225,000 sp. ft. to a new tower on their
in- patient facility. Without a firm, signed agreement (and
this is living proof that those ate not really graven in
stone) that they are relinquishing this property, are they
not really asking for this third tower IN ADDITION TO what
they already have from the 1992 general plan and Master
Plan ?.
5. Mr. Campbell (City planning department) stated to me in
December, 2007 that Hoag has an ABSOLUTE, inviolable right
to that 225,000 sp. :ft., so: it is really not such a stretch
to just transfer it. Hoag must therefore decide, BEFORE
this plan is even seriously considered, what acreage along
Coast Highway they want to relinquish. This should than be
put on the open market AND SOLD before this plan can be
considered credible.
7. Planning Commissioner Lindgren stated at the end of the
January 31, 2008 meeting, I believe, that he was sure that
all the Villa Balboa concerns regarding loading dock noise,,
etc., could all be taken care of by an incorporation into
the new tower. I credit this :statement to sheer fatigue (it
was about 11:15 p.m.). In spite of voluminous statements by
40 - -50 residents, an .attorney, a slide show, and other very
credible evidence that Hoag had flat -out lied to the Villa
Balboa residents before this co -gen plant was built,
Commissioner Lindgren expressed certainty that it would all
work out fine if Hoag is just granted this massive new
construction authorization. This, in. spite of Hoag's
representative, Ms. McDermott flatly stating that Hoag Aid
not have to do anything at all to ameliorate the co -gen
plant they already have..
S. Hoag is now in violation, I believe, of Federal .law
relating to their non - profit status. On December 21, 2007,
I hand delivered a request, among other things, to view
Hoag's last three tax returns, a requirement of the IRS for
non - profit status. Hoag has not complied. But something
very interesting happened at the January 31, 2008 meeting.
Hoag's Director member said that in the last few days or
weeks that the bond market had really "tanked." Presumably
this was to justify Hoag's three year battle with Villa
Balboa over their broken promises. By all means then, Hoag
should have taken care of their obligations three years ago,
before.their investments "tanked."
9 k- 31
9
9. I had pointed out at the 1/31/0.8 planning meeting that,
in 1992 I had viewed Hoag's tax returns (after telling Hoag
what my IRS contact had told me to tell themy that they
would lose their tax -free status for refusing). At the
time, Hoad had pleaded that they needed a City floated
municipal bond issue to even purchase the $6 million
property along Coast Highway. Yet Hoag's V.P. of Finance
who oversaw my viewing of the tax returns in 1992 agreed
they indeed did show
$240 million in cash or liquid accounts. A subsequent phone
call to St. Joseph's, a comparable -at- the -time private
hospital revealed they felt adequately funded with $80
million. So what exactly does this soon -to -be $1 billion
City floated bond liability really comprise? Is it a
pyramid scheme to pay off the past bonds by floating new, or
a sweetheart deal for Hoag "investors," or what? If Hoag
continues to currently refuse to comply with federal IR
Code, then at 'the very least the bonds.must be denied. If
the project is predicated upon them, the whole scheme must
be denied.
10. Also, while the co -gen plant violations are of serious
importance, no one is addressing the probable increase in
noise from the huge power plant on Hospital Road. This is
only about '150 feet from several homes. This current noise
level, while better than several years ago; cannot be
increased and still remain tolerable. The plans for this
noise abatement must be addressed before this project can be
considered.
Hoag's representative said at the 1/31/08 meeting that she
believed there would be no more planning commission
meetings /approvals after this. Please address these issues.
Yours truly.,
C ^z
Rosemary C. einbrecher
100 Scholz Plaza., #112
Newport Beach, CA 925.63
949 -548 -4542
Rosemary C. Steinbrecher, letter dated February 6, 2008
Comment 1 — Why Weren't Hoag's Plans Voted on by the Public?
The commenter asked by the public didn't vote on the Master Plan if Hoag has known what they
wanted to do for some time.
Response
The Master Plan Update Project would not allow for any additional square footage. The project
would not be subject to a public vote but would require action by the City Council. This comment
does not raise any new issues that have not been adequately addressed in the Final EIR,
inclusive of the responses to comments and the administrative record.
Comment 2 — City Responsibilities
The commenter indicates that the project would have impacts and the City must be responsible.
Hoag could grow at its facilities in the cities of Irvine and Huntington Beach.
Response
The Final EIR does address the potential impacts of the proposed project. As noted, the project
would not increase the square footage at Hoag. This comment does not raise any new issues
that have not been adequately addressed in the Final EIR, inclusive of the responses to
comments and the administrative record.
Comment 3 — Property Taxes
The commenter states that the City has granted Hoag municipal bonds and that Hoag is a non-
profit facility.
Response
The comment does not raise any environmental issues related to the. proposed project.
Comment 4 — Wetlands, Future Development at Hoag
The commenter feels that more mitigation should have been provided for the loss of wetlands
identified in the 1992 Final EIR No. 142. The commenter questions whether Hoag needs
additional development.
Response
Wetland impacts were identified in Final EIR No. 142 associated with development of the Lower
Campus. Wetland impacts have been fully mitigated. This comment does not raise any new
issues that have not been adequately addressed in the Final EIR, inclusive of the responses to
comments and the administrative record.
With respect to additional development, no additional square footage is being requested. The
City assumes that Hoag would propose new facilities as needed based on demand.
a�.33
Comment 5 — What Will Happen on the Lower Campus with the Transfer
The commenter does not want additional development on the Lower Campus if all 225,000 sf is .
constructed on the Upper Campus.
Response
If all of the square footage to be "transferred" is developed on the Upper Campus, Hoag would
have approximately 164,750 square feet of floor area remaining to construct on the Lower
Campus. The project does not provide for additional building area on the Lower Campus and
should Hoag desire to increase the floor area in the future, new entitlement applications would
necessary that would require approval by the City Council and Coastal Commission. This issue
is addressed in the Draft EIR and does not raise a new issue.
Comment 6 — Requests Hoag to sell Acreage on the Lower Campus
If all of the square footage is transferred to the Upper Campus, Hoag should be required to sell
the rest of the acreage on the Lower Campus.
Response
The opinion of the commenter is noted; this does not raise an environmental issue that requires
a response.
Comment 7 — Loading Dock Noise and Cogeneration Facility
The commenter disagrees that the issues regarding the loading dock and cogeneration facility
will be resolved.
Response
The opinion of the commenter is noted; this does not raise an environmental issue that requires
a response. This comment does not raise any new issues that have not been adequately
addressed in the Final EIR, inclusive of the responses to comments and the administrative
record.
Comment 8 — Non - Profit Status of Hoag
The commenter states that Hoag is in violation of its non -profit status.
Response
The opinion of the commenter is noted; this does not raise an environmental issue that requires
a response.
Comment 9 —Municipal Bonds
The commenter states that the City has issued municipal bonds for Hoag.
Response
This comment does not raise an environmental issue that requires a response.
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