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HomeMy WebLinkAbout18 - Appeal of Planning Commission approval of Balboa Marina West Restaurant (201 East Coast Highway) - Appeal PaperworkAppeal Application City Clerk's Office 100 Civic Center Drive / P.O. Box 1768 Newport Beach, CA 92658-8915 T (949) 644-3005 Appeal the Decision of: ❑ Hearing Officer - NBMC §20.64 ❑ Operator License - NBMC §5.25.060 Attention: City Manager) V Planning Commission - NBMC §20.64 ❑ Zoning Administrator (Development Agreements) - NBMC 15.45.080 ❑ Other Clerk's Date & Time Stamp Applicable Appeal Fees Pursuant to t Master Fee Schedule adopted 9 -22 -15 - Hearing Officer - $1,506.00 Operator License - $692.00 Planning Commission - $1,506.00 Zoning Administrator - $1,506.00 Other - $ Appellant Information: Name(s): Linda Isle Homeowners Association Address: c/o Jackson DeMarco Tidus Peckenpaugh, 2030 Main Street, Suite 1200 (Attn: Eddy R. Beltran, Esq.) City/State/Zip: Irvine, CA 92614 Phone: (949) 752-8585 Fax: (949) 752-0597 Email: ebeltran@jdtplaw.com Appealing Application Regarding: Name of Applicant(s): The Irvine company Date of Decision: 12/17/2015 Project No.: PA2015-113 Activity No.: Site Address: 210 East Coast Highway Description of application: Minor Site Development Review SD2015-002 and Conditional Use Permit UP2015-030 Reason(s) for Appeal (attach a separate sheet if necessary): See attached correspondence. Signature of Appellant: L Date: 12/23/2015 FOR OFFICE USE ONLY: Date Appeal filed and Administrative Fee received City Clerk cc: Department Director, Deputy Director, Staff File Pdimb�r a-3 , 20J F:IUserslClerklSharedlFormslAppeal Application Receipt #1017616.005 Recreation & Senior Services Dept. 100 Civic Center Drive Bay E Newport Beach, CA 92660 Phone: (949) 644-3151 FAX: (949) 644-3155 Email: recreation@newportbeachca.gov DROP-IN CUSTOMER Payment Summary Check: $1,506.00 Check # 1137 Credit Card: $0 Account: $0 Financial Aid: $0 Total Received: $1,506.00 Transactions Customer Description Drop -In Customer CC Planning Commission Appeal Action: Product Sale Home phone: -- Email: -- ID: 1 Receipt #1017616.005 Dec 23, 2015 4:11 PM Prepared By: jbattioli Customer ID: 1 Home phone: --, Work phone: -- Cash $0 Memo: $0 Gift Card: $0 Total Payments: $1,506.00 Payment Plan: $0 Charge $1,506.00 Total Charges $1,506.00 Total Payments $1,506.00 Balance $0 Page 1 of 1 Thank you for your choosing Newport Beach Recreation & Senior Services. Please visit us online at www.newportbeachca.gov https://activenetO01. active. com/cnbreg/servlet/showReceipt. sdi?receiptheader_id=1793 3 0... 12/23/2015 JAMES C JORDAN MARION A JORDAN 85 LINDA ISLE NEWPORT BEACH CA. 92660-7209 Pay to the Order of Bank of America 'W �aluedC'ustomer OV ER30YE0.R5 ACH R/T 121000358 1s 1 2 10001 S81: 00 1 19490 59 1137 11-35/1210 CA 90073 ZO/S Date $ -Dollars Jackson I DeMa rco I Tid us Peckenpaugh A LAW CORPORATION December 23, 2015 Direct ilial: 949.851.7409 En,i ail mstaples@jdtplaw.com Reply to Irvine Office File; No: 6008-46360 VIA E-MAIL (lbrown(a,newportbeachca.gov) & HAND DELIVERY City Council Attn: Leilani I. Brown, City Clerk City of Newport Beach Bay East, Second Floor 100 Civic Center Drive Newport Beach, CA 92660 Re: Notice of Appeal re: Planning Commission Approval of Balboa Marina West Minor Site Development Review No. SD2015-003, and Conditional Use Permit No. UP2015-030 (December 17, 2015, Planning Commission Agenda Item No. 3) Dear Honorable Council Members: We represent the Linda Isle Homeowners Association ("Linda Isle") in connection with the Balboa Marina West Development and, more specifically, the proposed "14,252 -square -foot restaurant building with outdoor dining and a new 664 -square -foot marina restroom building. And a conditional use permit for a restaurant (food service, late hours) with full alcoholic beverage service, and live entertainment, and a reduction in required off-street parking" approved by the City Planning Commission on December 17, 2015 (the"Project"). The Project is proposed by The Irvine Company ("TIC"). Linda Isle is the nearest residential community, located directly across the harbor to the south of the proposed Project site. In accordance with City Municipal Code section 20.64, this letter serves as formal notice of Linda Isle's appeal of the Planning Commission's December 17, 2015, approval of the minor site development review and conditional use permit for the Project. We request that this letter be included as part of the administrative record for this matter along with the prior correspondence, oral comments and materials submitted by Linda Isle. As outlined below, the Planning Commission's approval of the Project should be rescinded based upon the significant, unmitigated impacts to residents of Linda Isle, including impacts related to noise, glare, traffic and parking, that are newly -defined and were not specifically analyzed as part of the conceptual project reviewed in connection with the Mitigated Irvine Office Westlake Village Office 2030 Main Street, Suite 1200 2815 Townsgate Road, Suite 200 www.jdtplaw.com Irvine, California 92614 Westlake Village, California 91361 t 949.752.8585 f 949.752.0597 t 805.230.0023 f 805.230.0087 Attn: Leilani L Brown, City Clerk December 23, 2015 Page 2 Negative Declaration adopted in 2014 ("MND").' The MND did not have any information on an actual proposed project and as a result the only analysis of the restaurant and marina restroom components was a broad "envelope" analysis. At the public hearing held on October 4, 2014, for the MND, the Commission members and the public were informed that the actual project proposal would be reviewed at a later time and would be subject to the California Environmental Quality Act (Pub. Resources Code, § § 21000, et seq.) ("CEQA"). This was reaffirmed by the City Council during the November 25, 2014, hearing regarding Linda Isle's appeal of the MND, and in discussions with the City Attorney following the denial of Linda Isle's appeal. The City - approved conceptual "project" that was analyzed as part of the MND was not a proposed project and was never submitted to the California Coastal Commission. The Project that was approved by the Planning Commission on December 17, 2015, discloses certain design features and long term operations that were not previously subjected to environmental review for potential environmental impacts under CEQA. This project level analysis was not a part of the MND and, as a result, the Project has not been publicly vetted under CEQA. The Planning Commission's approval of the Project under these circumstances was premature and violates CEQA and the Linda Isle community's due process rights. The City Council should, accordingly, vacate the Planning Commission's decision and direct Staff to conduct a new, comprehensive analysis of the potential impacts of the proposed Project in order to comply with the requirements of CEQA and the CEQA Guidelines (14 Cal. Code Regs., §§ 15000, et seq.) or otherwise prepare an environmental impact report due to the Project's potential unmitigated significant impacts. 1. The City Has Violated CEQA's Policy Against Deferred Analysis and Mitigation The City's delay in disclosing, analyzing and mitigating noise and other environmental impacts to Linda Isle from when the MND was adopted until the current, newly -defined proposed Project is a violation of CEQA's prohibition on deferred analysis and mitigation. (CEQA Guidelines, § 15126.4(a)(1)(b).) "A study conducted after approval of a project will inevitably have a diminished influence on decisionmaking. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA. [Citations.]" (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.) Numerous cases illustrate that reliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA's goals of full disclosure and informed decision making; and consequently, these mitigation plans have been overturned on judicial review as constituting improper deferral of environmental assessment. (See, e.g., Gentry v. Murrieta (1995) 36 Cal.AppAth 1359, 1396 [conditioning a permit on "recommendations of a ' According to Attachment PC. 11 to the Staff Report for the December 17, 2015, Planning Commission meeting, the MND was prepared for "Balboa Marina West, a new public boat dock in the Newport Harbor, improvement and expansion of the existing Balboa Marina, and the construction of a 19,400 square feet marine commercial building for a yacht brokerage office, public restrooms, and a restaurant." Attn: Leilani I. Brown, City Clerk December 23, 2015 Page 3 report that had yet to be performed" constituted improper deferral of mitigation]; Defend the Bay v. City of Irvine (2004) 119 Cal.AppAth 1261, 1275 [deferral is impermissible when the agency "simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report"]; Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.AppAth 777, 794 ["mitigation measure [that] does no more than require a report be prepared and followed, ... without setting any standards" found improper deferral]; Sundstrom, supra, 202 Cal.App.3d at p. 306 [future study of hydrology and sewer disposal problems held impermissible]; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.AppAth 1597, 1605, fn. 4 [city is prohibited from relying on "postapproval mitigation measures adopted during the subsequent design review process"].) Instead of describing the proposed project and performing one comprehensive and complete analysis of the proposed project's environmental impacts under CEQA, the City evaluated an "envelope" of potential impacts for an undefined project — no actual project features — when it approved the MND in 2014. There have been several changes and modifications to the hypothetical project analyzed in 2014 as part of the MND and the proposed Project that was approved by the Planning Commission on December 17, 2015, and is the subject of this appeal. For the first time, the City is disclosing such basic project features and operations as the proposed building height and configuration of the proposed restaurant building and outdoor patio, and amplified music that will result in noise levels in excess of those allowable under the City's noise standards. The City should, accordingly, rescind the Planning Commission's approval of the Project in order to perform a full and complete analysis of the potential environmental impacts of the proposed Project in accordance with CEQA, and develop mitigation measures intended to mitigate those potential impacts. Failure to do so deprives the public of a meaningful opportunity to comment on the proposed Project and renders the Planning Commission's December 17, 2015, approval of the Project an impermissible post hoc rationalization. 2. The Proiect Fails to Adequately Analyze and Mitillate Noise Impacts to Linda Isle CEQA declares that it is the policy of the state to take all action necessary to provide the people of California with clean air and water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive noise. (Pub. Resources Code, § 21001, subd. (b).) The Planning Commission's decision to approve the Project without the necessary sound attenuation measures must be vacated to allow time for the City to evaluate, disclose and mitigate the potential noise impacts to Linda Isle residences both during the construction period and following Project completion based on actual, measurable data in accordance with CEQA. The City cannot defer its analysis and mitigation of these impacts and the development of mitigation until after permit plans are submitted. (Quail Botanical Gardens Foundation, Inc., supra, 29 Cal.AppAth at p. 1605, fn. 4.) The October 26, 2015, Wieland Acoustics Report ("Weiland Report") prepared in connection with the Project acknowledges that the Project will introduce several new noise Attn: Leilani I. Brown, City Clerk December 23, 2015 Page 4 sources into the area, including indoor/outdoor dining activities, live and recorded music, congregation of patrons on the outdoor patio area and parking lot activities. Despite this influx of newly disclosed noise sources caused by the Project, the Weiland Report measured noise impacts at only two locations — neither of which were on Linda Isle. (Attachment No. PC 5, pp. 7-8; see also Attachment A [October 29-31, 2014, e-mail chain].) The Wieland Report cannot accurately analyze noise impacts to Linda Isle associated with construction and operation of the Project without current baseline noise measurements from this nearest sensitive receptor location. A supplemental noise analysis should be prepared that discloses and analyzes these impacts based on current, measurable data from Linda Isle, the nearest sensitive receptor most likely to be affected by the Project's construction and operational noise impacts. The Weiland Report concluded that certain noise attenuation measures must be undertaken in order to prevent excessive noise to the Linda Isle community. (Weiland Report, § 6, pp. 12-13.) Nevertheless, in approving the Project, the Planning Commission modified the Project to remove certain of those noise attenuation measures. Further, the Weiland Report states that noise impacts from mechanical equipment, such as rooftop air conditioning units, kitchen exhaust fans and other similar equipment, was not included as part of the analysis because the restaurant building has not yet been designed. (Attachment No. PC 5, p. 1.) The omission of these impacts renders the Weiland Report incomplete and its analysis of the Project's noise impacts insufficient. A supplemental report must be prepared that addresses these impacts and analyzes them in accordance with CEQA. The City cannot defer this analysis and mitigation until the "final engineering stage" of the Project design. (Staff Report, pp. 8-9.) Deferring analysis is impermissible piecemealing. Under CEQA, a "`Project' means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment ...." (CEQA Guidelines, § 15378(a).) A "`project' does not mean each separate governmental approval." (CEQA Guidelines, § 15378(c).) The lead agency must consider "[a]ll phases of project planning, implementation, and operation." (CEQA Guidelines, § 15063(a)(1).) CEQA prohibits a lead agency from "segmenting" or "piecemealing" a project into small parts if the effect is to avoid full disclosure of environmental impacts. The California Supreme Court has explained that the requirements of CEQA cannot be avoided by piecemeal review which results from "chopping a large project into many little ones — each with a minimal potential impact on the environment — which cumulatively may have disastrous consequences." (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284.) Rather, the examination of a "project" requires an analysis of "all relevant parts of a project, including reasonably foreseeable future expansion or other activities that are part of the project." (Laurel Heights Improvement Assoc. v. Regents of University of Cal (1988) 47 Cal. 3d 376, 394.) In addition, the December 17, 2015, Planning Commission Staff Report and Weiland Report do not include any analysis of the impacts associated with activities in Parking Area B, including noise associated with vehicles entering and leaving the parking area late at night within the impact area of the homes on Linda Isle. The Staff Report downplays noise impacts from this Attn: Leilani I. Brown, City Clerk December 23, 2015 Page 5 area, such as car doors closing, car alarms, loud stereos, and patrons talking, by characterizing them as mere "single event noise disturbances." (Staff Report, p. 7.) This is insufficient and does not relieve the City of the obligation to disclose, analyze and mitigate the impacts of noise from these sources to Linda Isle residents, whether on an individual or collective basis. Moreover, the Staff Report acknowledges that the Weiland Report did not "specifically address noise from valet operations" in Parking Area B. (Staff Report, p. 7.) Instead, a general recommendation to add signs to this area asking patrons to "keep noise at a minimum" is included as a condition of approval. There is, however, no assurance that such signs will have any practical effect. The City should perform a real analysis of the noise impacts from this area and impose meaningful mitigation measures to reduce these impacts on Linda Isle residents and others in the surrounding community. In addition, there is no analysis of potential noise impacts from pedestrians walking to and from the parking areas and the proposed restaurant along the marina frontage. The Project does include a designated public pedestrian walkway that will direct pedestrians from the parking areas along East Coast Highway to the restaurant and public docks; however, there is no impediment or restriction that would prevent these same pedestrians and restaurant customers from choosing to instead walk along the docks within much closer proximity to Linda Isle residences. Allowing public access along the south side of the commercial building by late night revelers and customers of the proposed restaurant and visitors to the public dock would generate additional noise impacts to Linda Isle residents above and beyond the impacts attributable to the restaurant and outdoor patio. The City must, accordingly, consider and analyze these additional potential noise impacts and incorporate measures to restrict public pedestrian access along the private Balboa Marina portion of the Project site. Additionally, the significance of the operational noise impacts of the Project on Linda Isle residents was not disclosed or evaluated in the MND. The proposed restaurant and nightclub is proposed to operate until 2:00 a.m. daily, with a last call until 1:30 a.m. daily. The outdoor patio area will remain open until 12:00 a.m. daily. Further, amplified sound at the restaurant will be permitted until 1:00 a.m. daily. Although the Project's Conditions of Approval contain some noise mitigation recommendations, these are not sufficient to reduce impacts to Linda Isle residents. For example, limiting restaurant dining to the west side of the outdoor patio which does not directly face Linda Isle will not prevent noise from restaurant patrons seated on the patio from reaching Linda Isle residents, particularly during late night hours. Further, this does not account for noise caused by patrons and pedestrians who can freely access the south portion of the patio facing Linda Isle and the marina frontage walkway. In addition, while Linda Isle appreciates the proposal to require that fixed windows be installed and that all windows and doors to be shut when recorded or live music is being played or after 10:00 p.m., this will not mitigate sound from restaurant workers and patrons traveling from inside of the restaurant to the outside patio deck, during which time the doors would be open and amplified sound and other noise would escape and significantly impact Linda Isle residents. Attn: Leilani I. Brown, City Clerk December 23, 2015 Page 6 Further, simply prohibiting deliveries, loading and unloading, and trash removal from the loading dock area which directly faces Linda Isle during the hours of 10:00 p.m. and 7:00 a.m. on weekdays and Saturdays and 10:00 p.m. and 9:00 a.m., is insufficient. Noise impacts from the loading dock area are significant and will directly interfere with the quiet use and enjoyment of Linda Isle residents' homes. The City must analyze and incorporate feasible mitigation measures now to analyze, disclose and mitigate the Project's direct and indirect noise impacts, including, but not limited to: 1) prohibiting amplification; 2) requiring installation of sound attenuating windows at the restaurant's south side; 3) prohibiting any patio or other outdoor use of the restaurant's south side closest to Linda Isle; 4) restricting public pedestrian access along the private Balboa Marina portion of the Balboa Marina West Development site; and, 5) restricting live entertainment to a piano, or one or more musicians playing amplified guitars with accompanying vocals.2 In the absence of such measures, the right of Linda Isle residents to quiet enjoyment of their properties will be significantly impaired. Furthermore, during the December 17, 2015, Planning Commission meeting, the Commission removed the mitigation measure requiring that certain sliding doors to the outdoor patio deck remain closed during periods of amplified sound inside the restaurant. The Commission removed this mitigation measure despite the fact that it was identified by the City's own noise expert in the Weiland Report as necessary to avoid significant adverse noise impacts to Linda Isle. The City Council must, at minimum, reinstate this mitigation measure for the Project in addition to those additional measures discussed above. In sum, the Planning Commission's approval of the Project should be vacated in order to permit sufficient time for the City to disclose, analyze and mitigate the significant noise impacts associated with the newly -defined Project, as required under CEQA and basic due process protections. 2 The Planning Commission's December 17, 2015, Staff Report (p.4) states: "live entertainment would be in the form of a disc jockey (DJ) or other form of live entertainment, such as musicians and other forms of amplification sound. The technical noise study prepared by the applicant assumes that live entertainment would consist of a piano, or one or more musicians playing amplified guitars with accompanying vocals." Because the technical study did not analyze the noise impacts from a live DJ, a live DJ must not be permitted. Attn: Leilani I. Brown, City Clerk December 23, 2015 Page 7 3. The Project Fails to Adequately Analyze or Mitigate Potential Light and Glare Impacts to Linda Isle. The December 17, 2015, Staff Report and related Project documents fail to adequately address the potential light and glare impacts to Linda Isle residents from the commercial building windows, parking lot and internal circulation within the reconfigured parking area. The MND and information included in the Stantec grading report prepared in connection with the MND indicate that the parking area will be raised as much as 9 feet above existing grade. This increase would create the potential for vehicle headlights to shine across the water directly into Linda Isle residences. Linda Isle appreciates that a 3 -foot high landscaped area between the parking lot and the southern waterfront will be included as part of the Project to reduce glare and light impacts to Linda Isle residents; however, additional measures, such, as Plexiglas shields, should also be required in order to mitigate potential light and glare from vehicles entering and leaving the Project site. Similarly, the requirement under Condition 20 that the commercial building "incorporate" non -reflective materials and colors is commendable; however, additional mitigation and performance standards are needed to ensure that residents of Linda Isle are not significantly impacted by light and glare from the Project site. 4. Conclusion. For the reasons set forth above and in the prior correspondence and exhibits submitted by Linda Isle, Linda Isle respectfully requests that the City Council: (i) vacate the Planning Commission's December 17, 2015, decision to approve the Project; and (ii) and direct Staff to conduct a new, comprehensive analysis of the potential impacts of the proposed Project in accordance with CEQA or otherwise prepare an environmental impact report due to the Project's potential unmitigated significant impacts. Sincerely, Michele A. Staples Enclosure cc: City Council Members Planning Commission Members Kimberly Brandt, Community Development Director David Kiff, City Manager Aaron C. Harp, City Attorney Dan Miller, The Irvine Company Lin From: Michele Staples Sent: Friday, October 31, 2014 1:53 PM To: 'Shawn Monterastelll' Cc: Michael Tidus; Dan Miller; 'Alford, Patrick' Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE While I, too, am restating my earlier email, thank you for confirming that the noise measurements TIC asked to undertake at Linda Isle are not part of the City's CEQA review of the potential adverse noise impacts of the proposed Balboa Marina West project. The Linda Isle HOA would be happy to make arrangements for the City to conduct noise measurements at Linda Isle as necessary for the City, the Linda Isle community and other interested parties to have adequate information and a meaningful opportunity to comment on the project's potential adverse noise impacts and mitigation measures as part of the City's CEQA review process. However, since the City and TIC have chosen to proceed without doing so, the Linda Isle HOA remains concerned that the City has not adequately disclosed, analyzed or mitigated the potential significant adverse noise impacts that may be generated from the construction and operation of the project's proposed restaurant, outdoor patio, and other features, together with the other existing, approved and foreseeable projects in the area. MICHELE A. STAPLES Attorney Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor I Irvine, California 92614 949.851.7409 direct 1949.752.8585 main 1949.752.0597 fax 949.233.5039 cell mstapies@idtplaw.com www.idtplaw.com ATTORNEYS From: Shawn Monterastelli [mailto:smonterastelliCa)irvinecompany.coml Sent: Friday, October 31, 2014 10:05 AM To: Michele Staples Cc: Michael Tidus; Dan Miller; 'Alford, Patrick' Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE Michele, while I'm restating my original email, if there are forms or evidence of insurance that the property owner would like to be provided by the consultant in order for this measurement to occur, then please let me know how I can assist. Shawn D. Monterastelli Vice President and Assistant General Counsel Irvine Company 550 Newport Center Dr. I Newport Beach, California 192660-7011 Phone 949 720.4337 1 Fax 949.760.0896 smonterastelli((Dirvinecomoany.com IRVINE COMPANY Siwe 1864 Please considerthe environment before printing From: Alford, Patrick jmailto:PAlford@newportbeachca.gov] Sent: Friday, October 31, 2014 8:03 AM To: 'Michele Staples'; Shawn Monterastelli Cc: Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE It is the position of the Planning Division that the IS/MND provides sufficient analysis and mitigation of potential noise impacts and that no revisions are warranted. However, we encourage the applicant and Linda Isle to cooperate to address any outstanding concerns about the project. From: Michele Staples rmailto:MStaplesCcbidtplaw.com] Sent: Thursday, October 30, 2014 10:57 PM To: Shawn Monterastelli Cc: Alford, Patrick; Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE Patrick, does the City know? MICHELE A. STAPLES Attorney Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor I Irvine, California 92614 949.851.7409 direct 1949.752.8585 main 1949.752.0597 fax 949.233.5039 cell mstaplesCg@idtplaw.com www.odtplaw.com ATTORNEYS 2 From: Shawn Monterastelli [mailto:smonterastelli(&irvinecompany.com] Sent: Thursday, October 30, 2014 10:55 PM To: Michele Staples Cc: Alford, Patrick (PAlford(@newportbeachca.gov); Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE I don't know. From: Michele Staples Lmailto:MStaplesCc0jdtplaw.com1 Sent: Thursday, October 30, 2014 9:47 PM To: Shawn Monterastelli Cc: Alford, Patrick (PAlfordPnewportbeachca.gov); Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE Will the noise analysis be incorporated into a revised MND to be recirculated for public review and comment? MICHELE A. STAPLES Attorney Jackson I DeMarco I Tidus I Peckenpaugh 2030 Main Street, 12th Floor I Irvine, California 92614 949.851.7409 direct 1949.752.8585 main 1949.752.0597 fax 949.233.5039 cell mstaples@?idtplaw.com www.idtplaw.com ATTORNEYS From: Shawn Monterastelli [mailto:smonterastelliC(Iirvinecompany.coml Sent: Thursday, October 30, 2014 4:22 PM To: Michele Staples Cc: Alford, Patrick (PAlford(&newportbeachca.gov); Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE We understand the consultant's work would be submitted to the City for their consideration as part of the record for the HOA's appeal. Under the City's procedures, the Irvine Company is responsible for paying the consultant's costs for their work on this matter. Shawn D. Monterastelli Vice President and Assistant General Counsel Irvine Company 550 Newport Center Dr. I Newport Beach, California 192660-7011 Phone 949.720.4337 1 Fax 949.760.0896 smonterastelli(cD iryinecompany. com IRVINE COMPANY lin« IWA Please oonsider the environment before printing From: Michele Staples jmaiIto: MStaples(cbjdtplaw.com] Sent: Thursday, October 30, 2014 1:10 PM To: Shawn Monterastelli Cc: Alford, Patrick (PAlford@newportbeachca.gov); Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE Shawn, what is the purpose for the noise measurements referenced in your email below, and who is the consultant working for? Are the noise measurements to be undertaken as part of the City's CEQA review of the potential adverse noise impacts of the proposed Balboa Marina West project that is the subject of the Linda Isle HOA's appeal? Thank you MICHELE A. STAPLES Attorney Jackson I DeMarco ITIdus I Peckenpaugh 2030 Main Street, 12th Floor I Irvine, California 92614 949.851.7409 direct 1949.752.8585 main 1949.752.0597 fax 949.233.5039 cell mstaples@idtplaw.com www.idtplaw.com ATTORNEYS From: Shawn Monterastelli[mailto:smonterastelliCcbirvinecompany.com1 Sent: Wednesday, October 29, 2014 4:49 PM To: Michele Staples Cc: Alford, Patrick (PAlford(@newportbeachca.gov); Michael Tidus; Dan Miller Subject: RE: TIC NOISE MEASUREMENTS AT LINDA ISLE Dear Michele, In response to your email below, I would like to again indicate that we (Irvine Company) have been asked to work with you to assist in helping a noise consultant obtain the appropriate approvals for that consultant to take certain noise measurements on a property owner's property located on Linda Isle. If there are forms or evidence of insurance that the property owner would like to have executed by the consultant in order for this measurement to occur, then please let me know how I can assist. The remainder of the statements in your email are not accurate, and the "confirmations" you attempt to insert regarding my conversation with you are not accurate, and we disagree with them. It unnecessary for us to engage in any further dialog on these statements or confirmations because your statements are irrelevant to my attempts to assist in the noise consultant in meeting the requirements of the property owner to allow for the measurements. If this property owner or your other clients want the noise consultant to have access, then you should respond with information on what will be required for that to occur, rather than attempt to re -characterize my contacts as something else. If you or your clients do not respond, then it is my understanding that the noise consultant will not perform the noise monitoring. As the co -applicant for the project, we would like to facilitate the noise consultant's work. Shawn D. Monterastelli Vice President and Assistant General Counsel Irvine Company 550 Newport Center Dr. I Newport Beach, California 192660-7011 Phone 949.720.4337 1 Fax 949.760.0896 smonterastelli(a)irvinecomoany.com IRVINE COMPANY %ince 1804 Please considerthe environment before printing From: Michele Staples jmailto:MStaples(s1jdtplaw.coml Sent: Wednesday, October 29, 2014 10:02 AM To: Shawn Monterastelli Cc: Alford, Patrick (PAlford(a>newportbeachca.gov); Michael Tidus Subject: TIC NOISE MEASUREMENTS AT LINDA ISLE Shawn, thank you for confirming yesterday that the noise measurements TIC asked to undertake at Linda Isle were not part of the City's CEQA review of the potential adverse noise impacts of the proposed Balboa Marina West project. Rather, TIC mistakenly thought the Linda Isle Homeowners Association asked TIC for them. The Linda Isle HOA did not ask TIC to perform noise measurements. The Linda Isle HOA appealed the City Planning Commission's approval of the project on grounds including, among other things, that the mitigated negative declaration's noise analysis is defective and is based on outdated noise monitoring data at Linda Isle. The Linda Isle HOA would be happy to make arrangements for the City to conduct noise measurements at Linda Isle as necessary for the City, the Linda Isle community and other interested parties to have adequate information and a meaningful opportunity to comment on the project's potential adverse noise impacts and mitigation measures as part of the City's CEQA review process. Otherwise, the Linda Isle HOA remains concerned that the City has not adequately disclosed, analyzed or mitigated the potential significant adverse noise impacts that may be generated from the construction and operation of the project's proposed restaurant, outdoor patio, and other features, together with the other existing, approved and foreseeable projects in the area. If you would like to discuss this matter further, please contact me. MICHELE A. STAPLES Attorney Jackson I DeMarco j Tidus I Peckenpaugh 2030 Main Street, 12th Floor I Irvine, California 92614 949.851.7409 direct 1949.752.8585 main 1949.752.0597 fax 949.233.5039 cell mstaples@Idtplaw.com www.idtplaw.com ATTORNEYS This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. 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