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HomeMy WebLinkAbout17 - Draft Supplemental EIR for Pelican Hills Resort• CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No.17 January 27, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Wood, Assistant City Manager 644 -3222, swood @city.newport- beach.ca.us SUBJECT: County of Orange Notice of Preparation of Draft Supplemental EIR for Pelican Hills Resort in Newport Coast ISSUE: Should the City provide comments on the Notice of Preparation (NOP)? • Approve and authorize the Mayor to send the attached comment letter. DISCUSSION: The Environmental Quality Affairs Committee (EQAC) reviewed comments prepared by a subcommittee on the Pelican Hills Resort NOP at their meeting of January 20, 2004. EQAC approved the comments as written in the memorandum attached to this report. Staff used this memorandum as the basis for preparing the recommended comment letter for the Mayor's signature. Staff agrees with EQAC that the NOP is confusing with regard to the project description, and that the NOP is unclear as to the reason for and focus of the Supplemental environmental impact report (EIR). For every item on the initial study checklist, the conclusion is that the project will have no substantial change from the previous analysis, and these conclusions are reached without the benefit of technical studies which the NOP indicates will be part of the Supplemental EIR. Staff differs from EQAC in believing that these principle points need to be made only once, and that detailed comments on each impact area should be held until the Draft EIR is available for review. Therefore, the letter proposed for the Mayor's signature is shorter than EQAC's memorandum. The proposed letter also acknowledges the City's understanding that the approved planning documents for Newport Coast, to which the City agreed in its annexation agreements with The Irvine Company and Orange County, permits the • NOP of Draft Supplemental EIR for Pelican Hills Resort January 27, 2004 Page 2 development of a greater number of visitor accommodations than now proposed for the Pelican Hills site. Submitted by: ,Xaje�j4tL Sharon Wood Assistant City Manager Attachments: 1. Memorandum from EQAC 2. Draft comment letter • L� C� J • MEMORANDUM To: Mayor Tod Ridgeway and Members of the City Council City of Newport Beach From: Environmental Quality Affairs Citizens Advisory Committee City of Newport Beach Subject: Notice of Preparation ("NOP ") for the Draft Supplemental Environmental Impact Report ( "DSEIR ") for the Pelican Hill Resort Project (the "Project') Date: January 23, 2004 Thank you for the opportunity to comment on the NOP for the DSEIR for the captioned Project "located in the coastal foothills of the Pacific Ocean between the easterly boundary of the City of Newport Beach and the western boundary of Crystal Cove State Park." The proposed DSEIR proposes to supplement FEIR 511, the environmental document for Irvine Coast Planned Community Phase I, and FEIR 524, the environmental document for the proposed • Hyatt Resort at Pelican Hill. We offer the following comments in the hopes of improving the DSEIR and the Project. 1. Project Description: The NOP states that the Project applicant, the Irvine Company, seeks four (4) Coastal Development Permits ( "CDP ") for four separate uses: (1) 204 bungalows or rooms, a spa, pool and grill, an event center which, though currently existing, will be renovated as part of the Project, hotel and parking structure; (2) 52 casitas (the "Upper Casitas "); (3) 76 villas (the "Lower Casitas") and recreation center for the Upper and Lower Casitas; and (4) a new golf clubhouse with associated improvements for the existing Pelican Hill Golf Course. FEIR 511 addressed a project which included two 18 -hole golf courses and "accommodations of 2,150 through hotel and casitas." FEIR 524 addressed a project which included "a 450- (sic) room hotel with up to 505,000 square feet in building area with parking for 747 cars and four tennis courts of palazzos and villas and a series of pools ...." Tables I and 2 are confusing and not informative: the DSEIR should include such tables with the relevant information from FEIR 511 and FEIR 524. The NOP repeatedly states that the modifications to the previously approved project are slight and that "the proposed project is at a significantly lower density." If so, then the DSEIR should include such a comparison of the projects. • The captioned Project covers approximately 117 acres with a total of 732,400 square feet with 1,412 total parking spaces with a 309,500 square feet hotel with 204 rooms and • 718 parking spaces, the Upper Casitas (52 in number) with 117,000 square feet and 152 garages with 117 surface parking spaces, the Lower Casitas (76 in number) with 229,000 square feet and 57 garages with 58 surface parking spaces, and a 35,000 square feet golf course clubhouse with 315 parking spaces. Although the NOP is unclear, the captioned Project appears to represent a substantial expansion over the earlier entitled project or projects. The DSEIR should clearly identify, explain, discuss and analysis the earlier entitled project(s) and the proposed Project. The public should not guess as to the nature of the earlier project and the proposed Project. Environmental Checklist and Discussion: a. Introduction: The NOP is surprising: although the entire Checklist notes that the Project will have "No Substantial Change From Previous Analysis," the Determination concludes that the Project includes "important new information and/or substantial changes have occurred requiring the preparation of an additional CEQA document.. .." NOP page 17. The DSEIR should discuss, analyze, address and resolve this apparent conflict. Moreover, the DSEIR should fully discuss, analyze, and address each piece of new information or substantial change which may have occurred which may require preparation of the DSEIR. Also, the organization of the NOP is strange: the NOP's Checklist departs from • the usual alphabetical organization, and it is hard to follow. The NOP is inadequate and conclusory. The NOP attempts to resolve environmental issues without any environmental analysis. As noted above, each item of the Checklist indicates that the Project has "No Substantial Change From Previous Analysis;" out of the eighty-three (83) items on the Checklist, eighty-three (83) items indicate that the Project will have no substantial change from the previous analysis. The Discussion on these items is equally confusing: The NOP states without discussion or further analysis that the earlier environmental documents addressed the issues completely. The NOP concludes: "As such, this topic will not be discussed in the [DSEIR]." As for the items which the NOP promises to discuss in the DSEIR, the NOP routinely states that "a [insert topic, e.g. hydrology] study is being prepared for the proposed project and is expected to show that the project will not result in any substantial changes ...." The DSEIR must do better: expectations are insufficient for CEQA analysis. The DSEIR must fully discuss, analyze, explain and address each and every item in the Checklist. More importantly, the DSEIR should set aside "expectations" and thoroughly discuss, analyze, and assess all such impacts, and propose any necessary mitigation. • b. Land Use and Planning: • The NOP discussion of the issues of land use and planning is confusing: Each and every item on the Checklist concludes that "As such, this topic will not be discussed in the [ DSEIR]." If the NOP purports to address the potentially significant impacts of the Project so that it can exclude from the CEQA analysis any topics, e.g. Land Use and Planning, the DSEIR should contain substantially more information regarding the nature and extent of the Project and the configuration and size of the Project. The DSEIR should address and discuss all items in the Checklist under Land Use and Planning, analyze, discuss and assess any such impacts, and, if necessary, propose adequate mitigation. C. Population and Housing: We understand that a substantial portion of the Project, and a change from the earlier proposals, is a time share component in connection with the Project. If the Project does not include such residential structures, then the DSEIR should fully discuss the nature, number and configuration of the transient occupancy units, discuss the housing demands for the staff of such units, and assess any environmental impacts on population and housing of the Project. d. Geology and Soils, or Geophysical: • As indicated above, the Checklist is not adequate: it indicates that the Project may have no significant changes from the previous analysis. The Discussion of the Checklist entries of "No Significant Change" covers almost three and one -half pages single spaced. If the Checklist is correct, the DSEIR should include analysis instead of conclusions with expansive discussion. The Discussion of each and every item, except section h) "Unique geologic ... features," in connection with geology and soils, or "Geophysical" resources includes discussion of a promised geotechnical study and a grading plan. These studies should be included in the DSEIR which should fully and adequately discuss all impacts and propose necessary mitigation. e. Hydrology and Drainage: Although the Checklist indicates no changes from previous environmental analysis, the Discussion contains nothing regarding the previous environmental analysis. Moreover, the Project includes significant changes from the project earlier analyzed: the DSEIR should fully describe the Project: the Project's additional size requires full environmental analysis. The DSEIR should fully analyze, discuss, and assess any and all Project related impacts on hydrology and drainage, and propose necessary mitigation. Further, the increased size of the Project including the increased parking areas may create significant environmental impacts on water runoff, drainage, and erosion in the E Project area. Any such increases will affect waters within the jurisdiction of the City of Newport Beach. Hence, the DSEIR should fully discuss, analyze and assess all such impacts, and propose • any necessary mitigation. In connection with Section a) i), the Discussion states that "plans for sedimentation and erosion will respond to requirements for reseeding and replanting ...," the DEIR should fully describe the Project including any responses for reseeding and replanting, and if necessary, propose necessary mitigation. Further, in connection with Section a) ii), the Discussion notes that a hydrology study is being prepared and the NOP notes its expectations regarding such study. The DSEIR should fully discuss and analyze such impacts and, if necessary, propose adequate mitigation for any such impacts. Likewise, Sections b) and d) should include a similar discussion in connection with the appropriate sections. E Water Quality: Sections 5.6 a) addresses the Project's potential to violate water quality standards. It promises another study: a water quality study. Because of the Project's increased size and increased area of imprevious surfaces, DSEIR should fully address, discuss and analyze such impacts and propose necessary mitigation which may include pervious pavement and appropriate swales to reduce runoff and promote percolation. • As to the Section 5.6 b), which addresses the Project's potential to deplete groundwater supplies, several issues arise. First, this subject does not address water quality but hydrology, or subsurface hydrology. The DSEIR, again, must do better: It should fully discuss the Project's impacts, and clearly assess and categorize such impacts. Second, this subsection is confused: it concludes that the Project will not deplete groundwater supplies. However, it continues: "This is reflected in the storm water treatment system that includes cisterns to capture runoff...." This Project feature is admirable but not explanatory. Again, the DSEIR must do better. It must explain the relation between the cisterns and the groundwater supplies. Further, the DSEIR should fully discuss the Project's impacts on groundwater resources, the ability of these small cisterns to recharge any groundwater basins in the vicinity of the Project, and propose any necessary mitigation. Moreover, the hydrology study promised in the NOP should include discussion of the Project's impacts on groundwater supplies. g Transportation /Circulation: According to the NOP, the traffic studies conducted for FOR 511 and �J FEIR 524 showed that all intersections studied would operate at a LOS C or better with the • exception of AM peak hour ICUs at four intersections. "These intersections would operate at LOS D, which is considered acceptable by the County of Orange for new and established intersections." The NOP states that "(t)he traffic study analyzed a post -2010 timeframe corresponding to build out of local (Newport Beach and Irvine) and County General Plans ...." Newport Coast has been annexed by the City of Newport Beach. According to the agreement entered into with the County of Orange on October 9, 2001, the City will have full planning authority at build out, the intersections should be analyzed using Newport Beach standards of acceptable levels of service. The DSEIR should include such standards, fully discuss all Project related impacts on transportation/circulation, and propose necessary mitigation. In addition, according to the NOP, the former project analyzed in FEIR 524 included parking for 747 cars. Table 2 indicates that the number of cars to be parked has nearly doubled with the proposed project. The NOP states that a new on -site circulation study is being prepared for the proposed project, and it will address parking. However, the NOP states that, with the exception of the circulation study that will address parking, the Supplemental EIR will not address transportation issues because there is "No Substantial Change from Previous Analysis." This additional number of cars associated with the proposed project should be addressed in a new traffic study for the DSEIR and, if necessary, propose adequate mitigation. Finally, the NOP appears to contain a Typographical error in the first paragraph of • Transportation/Circulation Subsection e) of the NOR The paragraph states that "FEIR 511 did not provide a traffic study." However, Subsection a) refers to a traffic study conducted for FEIR 511. The reference in Subsection e) is most likely referring to a parking study. However, if this guess is incorrect, the DSEIR should fully explain such studies and ensure that the study address all Project related impacts and propose necessary mitigation. h. Air Quality Sections 5.8 b) through e) discuss the earlier versions of the Project and conclude that the DSEIR will include an air quality study to determine whether the Project will exceed applicable standards. However, Section 5.8 a) which addresses the Project's consistency with applicable air quality plans makes no reference to the air quality study and concludes that the DSEIR will not address the issue. To the extent that the DSEIR and the air quality study will address, among other things, the Project's potential to exceed existing standards and propose any necessary mitigation, these documents should also address and propose any necessary mitigation for any Project related conflicts with applicable air quality plans. i. Noise: Sections 5.9 a), b), c) and e) indicate that the County will prepare a noise study for the Project. These sections repeat a familiar refrain: the study is not expected to show any change. This expectation is not environmental analysis: the DSEIR should incorporate the noise study and include it as an appendix, fully discuss all aspects of the study and any impacts • recognized in the study, and propose necessary mitigation. Further, according to the NOP, the size and extent of the Project's parking • structure(s) are larger and are terraced into the hillside. This Project feature may result in additional short term noise impacts resulting from construction activities. Among other things, the noise study and the DSEIR should discuss and analyze such short term construction impacts and propose necessary mitigation. i Biological Resources: Section 5.10 concludes that the Project will result in "No Substantial Change from Previous Analysis" with respect to endangered, threatened or rare species or their habitat. However, the NOP does not clearly identify when the last biological surveys were completed for the proposed project area. It appears that surveys were conducted in 1986 and 1987. According to the NOP, "(n)o subsequent studies were done at the time of EIR certification because conditions previously analyzed were felt not to have significantly changed except that the site had been disturbed by construction activities for adjacent development projects. "Since certification of FEIRs 511 and 524, the NCCP has been adopted for the area. In addition, Coastal Sage Scrub (CSS) revegetation has occurred over parts of the project site within the • Pelican Hill and Golf Course special linkages. Some of the revegetated areas will be impacted by the development. An updated biological assessment will be included in the EIR." NOP, p. 36. Emphasis added. The NOP contains no reference to any biological studies that were conducted in connection with the adoption of the NCCP. However, the NOP's recognition that some of the revegetated areas will be impacted by the development of the proposed project indicates that the Project may create significant impacts on biological resources. The biological study and the DSEIR should discuss any and all such potentially significant impacts including impacts to sensitive ecosytems as a result of any increased runoff and propose necessary mitigation. k. Aesthetics: Section 5.11 concludes that the Project will create no substantial changes from the previous analysis and for each analytical item concludes that the DSEIR will not discuss any aesthetic impacts. As before, the NOP improperly attempts to conduct its own environmental analysis. For instance, Section 5.11 a) addresses the Project's impacts on scenic vistas or views open to the public. The NOP states that the earlier environmental documents found that the L� earlier versions of the Project may create significant impacts on such views, but that such • impacts were reduced to insignificance as a result of the open space dedication program. As to the Project, the NOP concludes: "As a result of its location in the primary inland viewshed area and proximity to the existing golf club, its project design and construction will also contribute to the preservation of the dominant feature of the hillside, the lower knolls on the frontal slopes." This conclusion is premature: the NOP contains nothing specific about the location of the Project, nothing at all about the Project design, and still less regarding construction of the Project. Clearly, these items require full explanation rather than the conclusions in the NOR The DSEIR should fully assess the Project's impacts on all aesthetic items including scenic vistas, scenic highways, the potential to degrade existing aesthetics, and the creation of light and glare impacts. If necessary, the DSEIR should propose adequate mitigation for all such impacts. 1. Recreation: Section 5.13 a) and b) conclude that the Project will create no substantial • changes from the previous analysis in connection with impacts on area recreational facilities and include or expand recreational facilities. As before, the NOP attempts to conduct a truncated analysis. The Project increases the size of structures and attendant parking over earlier versions. The parking increase alone may create a significant impact on recreational facilities in the area because the Project will accommodate more cars and residents. The DSEIR should fully discuss the Project's impacts on recreational facilities and propose necessary mitigation. M. Hazards: Section 5.15 g) concludes that the Project will not result in a substantial change from previous analysis regarding the Project's potential to impair implementation of or interfere with an adopted emergency response plan. This section begins with the "finding" that the Project "would serve to enhance the implementation of such plans. However, it offers no explanation for this enhancement. Further, the NOP notes that the earlier environmental documents found no impacts on hazards or emergency response plans. The DSEIR should clarify and discuss whether emergency response programs developed following September 11, 2001 have changed the earlier response programs and whether the Project may have any significant impacts on these latter systems. If necessary, the 11 DSEIR should propose adequate mitigation. n. Public Services: Sections 5.16 a) and b) conclude that the Project will result in no significant changes from the earlier versions and earlier analysis in connection with the Project's potential to affect fire and police services. Thus, the DSEIR will not address these issues. Among other things, the NOP notes that the earlier analyses relied on the earlier project design to mitigate potential impacts to fire and police services. However, as the NOP recognizes, the Project design has changed and the NOP contains no specifics regarding the nature of the new design. The DSEIR should fully discuss such changes, their impacts on public services, if any, and propose necessary mitigation. o. Mandatory Findings: Section 5.18 a) addresses the Project's potential to degrade the environment including its potential to "threaten to eliminate a plant or animal community." The NOP concludes that the Project will result in no substantial changes to the previous versions of the Project in its potential to degrade the environment. • However, as noted above, the Project will result in the destruction of some revegetated plant communities. As such, the DSEIR should include an analysis of the Project's potential to degrade the environment. • Further, Section 5.18 d) surprisingly finds that the Project "will create regional job opportunities and facilitate the implementation of identified additional recreational needs in the area ...." Such findings indicate that the Project may be growth enhancing which in itself would warrant analysis in the DSEIR. Also, such findings seem to imply that the Project could have impacts which though individually limited but cumulatively considerable. Section 5.18 c) concludes that there are no such impacts but this section ignores the growth enhancing character of the Project. The DSEIR should address such cumulative impacts of the Project in relation to other projects in the area and, if necessary, propose adequate mitigation. 3. Conclusion: Thank you again for the opportunity to comment on the NOP for the Project. We hope that these comments and others will assist the County in the preparation of the DSEIR. L� CITY OF NEWPORT BEACH OFFICE OF THE MAYOR Mayor January 28, 2004 Tod W. Ridgeway Mayor Pro Tem Garold B. Adams Council Members Planning and Development Services Department Steven Bromberg Environmental Planning Services Division )ohnHeffeman 300 North Flower Street Richard A. Nichols Santa Ana, CA 92702-4048 Steven Rosansky ATTENTION: Mr. Timothy S. Neely, Manager Don Webb NOP for Draft Pelican Hills Supplemental Environmental Impact Report #596 Dear Mr. Neely: Thank you for the opportunity to comment on the NOP for • the DSEIR for the Pelican Hills Project (Project). The City of Newport Beach acknowledges that the planning documents for Newport Coast, which the City approved and agreed to as part of our annexation agreements with the County of Orange and The Irvine Company, permit the development of a greater number of visitor accommodations than now proposed for Pelican Hills. The City offers the following comments on the NOP. �J 1. Project Description: The NOP states that the Project applicant, the Irvine Company, seeks four (4) Coastal Development Permits (CDP'J for four separate uses: (1) 204 bungalows or rooms, a spa, pool and grill, an event center which, though currently existing, will be renovated as part of the Project, hotel and parking structure; (2) 52 casitas (the "Upper Casitas'�; (3) 76 villas (the "Lower Casitas'� and recreation center for the Upper and Lower Casitas; and (4) a new golf clubhouse with associated improvements for the existing Pelican Hill Golf Course. City Hall • 3300 Newport Boulevard • Post Office Box 1768 Newport Beach, California 92658 -8915 • www.city.newport- beach.ca.us (949) 644 -3004 The DSEIR proposes to supplement FEIR 511, the environmental • document for the Irvine Coast Planned Community Phase I, and FEIR 524, the environmental document for the proposed Hyatt Resort at Pelican Hill. FEIR 511 addressed a project which included two 18 -hole golf courses and "accommodations of 2,150 through hotel and casitas." FEIR 524 addressed a project which included "a 450 -room hotel with up to 505,000 square feet in building area with parking for 747 cars and four tennis courts of palazzos and villas and a series of pools...." According to the NOP, the Project covers approximately 117 acres with a total of 732,400 square feet and 1,412 total parking spaces. The Project includes: (a) a 309,500 square feet hotel with 204 rooms and 718 parking spaces; (b) the Upper Casitas (52 in number) with 117,000 square feet and 152 garages with 117 surface parking spaces; (c) the Lower Casitas (76 in number) with 229,000 square feet, 57 garages and 58 surface parking spaces; and (d) a 35,000 square feet golf course clubhouse with 315 parking spaces. The DSEIR should include tables from FEIR 511 and FEIR 524 in the DSEIR that describe the components of the project evaluated in those documents. These tables will help the reader understand the differences between the Project and the existing entitlement that was evaluated in previous environmental documents. We also recommend that the DSEIR explain the conclusion in the NOP that the modifications to the previously • approved project are slight and that "the proposed Project is at a significantly lower density." 2. Environmental Checklist and Discussion: The DSEIR should clearly explain the need for and focus of the document. In this regard, the entire Checklist notes that the Project will have "No Substantial Change From Previous Analysis" while the "Determination" concludes that the Project includes "important new information and /or substantial changes have occurred" that require additional documentation. The DSEIR should also justify the conclusion that the previous environmental documents addressed those issues that have been, according to the Checklist, "scoped out" of the analysis. The size of, and area covered by, the Project require the DSEIR to clearly and objectively discuss, analyze and assess all the impacts, and identify all appropriate mitigation, that the Project could cause including, without limitation, environmental impacts related to water runoff, drainage, erosion and water quality in and around the Project area. Finally, the DSEIR should fully address all traffic and transportation issues • • stemming from the Project that were not addressed in FEIR 524 (including any differential between the amount of vehicle parking proposed and parking for the project analyzed in FEIR 524) and any change in circumstances since certification of FEIR 524 that could result in different, or increased, impacts. u • Thank you again for the opportunity to comment on the NOP for the Project. We hope that these comments will assist the County in the preparation of the DSEIR. Sincerely, Tod W. Ridgeway Mayor "R ECEIVED, AFTER AGENDA PRIN'TED:" v) 'D� Jackson DeMarcoI Peckenpaugh • A L A W C O R P O R A T I O N January 23, 2004 I Direct Dial: 949- 851 -7409 1 Email: mstaples@jdplaw.com Reply to: Irvine Office File NO: 00178 DELIVERED VL4 MESSENGER Comments on Notice of Intent to Prepare Draft Pelican Hill Resort Supplemental Environmental Impact Report #596 Pelican Hill Resort Project (Planning Application Nos. PA03 -0075, PA03 -0076, PA03 -0077, and PA03 -0078) Submitted by: Michael L. Tidus, Esq. . Michele A. Staples, Esq. Gregory P. Regier, Esq. Jackson, DeMarco, & Peckenpaugh E On behalf of: Pelican Crest I Homeowners Association To County of Orange Planning and Development Services Department Environmental Planning Services Division 300 North Flower Street Santa Ana, CA 92702 -4048 ATTENTION: Air. Timothy S. Neely, Manager January 23, 2004 Irvine Office Westlake Village Office 2030 Main Street, Su to 1200 2815 Townsgate Road, Suite 200 www.jdplaw.com Irvine, California 92614 Westlake Village, Califomia 91361 t:949.752.8585 f:949.752.0597 t:805.230.0023 f:805.230.0087 0 0 Table of Contents Page I. Summary 1 II. The NOP is Deficient 2 A. The Project Description is Inadequate, Incomplete & Misleading 2 B. The Project's Potential Environmental Impacts are Unintelligible from the NOP, Environmental Checklist and Initial Study. 4 III. The SEIR must Discuss Additional Impact Areas 5 A. Land Use Planning 5 B. Geophysical 7 C. Hydrology and Drainage 8 D. Water Quality 8 E. Traffic 8 F. Air Quality 9 G. Noise 11 H. Biological Resources 12 I. Aesthetics 12 J. Public Service 12 K. Water Supply 12 IV. The Draft SEIR Must Consider Alternatives 13 V. A Subsequent and Not Supplemental EIR Must be Prepared 14 VI. The City's Discretionary Land Use Authority is Not Properly delegated to the County 14 VII. Conclusion 16 VIA MESSENGER January 23, 2004 County of Orange Planning and Development Services Department Environmental Planning Services Division Attn: Mr. Timothy S. Neely, Manager 300 North Flower Street Santa Ana, CA 92702 -4048 Dear Mr. Neely: We represent the Pelican Crest I Homeowners Association (the "Association ") in connection with its concerns about the Pelican Hill Resort project. After attending the January 15, 2004 Scoping Meeting and reviewing the County of Orange's Notice of Intent to Prepare Draft Pelican Hill Resort Supplemental Envirorunental Impact Report #596 (the "NOP "), the Association submits the following comments on the NOR For the reasons discussed below, the NOP is inadequate to allow agencies and the public to provide meaningful comment on the scope and content of the proposed supplemental environmental impact report ( "SEIR "). Indeed, the NOP does not even indicate whether it was distributed to the State Clearinghouse as required where, as is the case here, one or more state agencies will be a responsible agency or trustee agency (CEQA Guidelines § 15082). The Association, therefore, requests that the NOP be re- noticed and re- circulated for public review once its deficiencies are corrected. Summan' The NOP is inadequate for the following reasons: • A subsequent, and not a supplemental, EIR should be prepared; • The Project description is incomplete, inaccurate and misleading. • The Project's potential environmental impacts are unintelligible from the NOP, Environmental Checklist, and Initial Study; • The NOP proposes to supplement outdated 13- year -old and 15- year -old environmental impact reports, but dismisses further discussion of the vast majority of environmental impact areas based upon conclusory assumptions that there have been no changes; u Mr. Timothy S. Neely January 23, 2004 Page 2 • The Project, applicable laws and the surrounding area have significantly changed since preparation of the original EIRs. An SEIR must evaluate, at a minimum the following potential impact areas: land use and planning; geophysical, hydrology and drainage, water quality, traffic, air quality, noise, biological resources, aesthetics, public services, and water supply; and The NOP does not state whether Project alternatives will be considered and evaluated. Based on these deficiencies, the NOP must be re- drafted and re- circulated for appropriate review. II. The NOP is Deficient The purpose of an NOP is to solicit comments on the scope and content of the SEIR. (CAL. PUB REs. CODE § 21080.4(a); CEQA Guidelines § 1537.5.) However, to satisfy these requirements, the NOP must include sufficient information concerning the project and its potential environmental effects (CEQA Guidelines § 15082(a)(1)) so that the affected agencies •. and the public opportunity to respond to the scope and content of the SEIR. CEQA mandates that the NOP, at a minimum, contain the following information: (1) A description of the project; (2) The location of the project: and (3) The project's probable environmental effects. (CEQA Guidelines § 15082(a)(1).) Unfortunately, as more fully discussed below, the County's NOP is woefully inadequate as a vehicle for soliciting affected agencies' and the public's meaningful comments regarding the scope and contents of the SEIR. The NOP deficiencies must be corrected and the NOP must be re- noticed and re- circulated for agency and public review before commencing the preparation of the SEIR. A. The Protect Description is Inadequate, Incomplete and Misleading CEQA requires an NOP to provide an adequate description of the project in order to allow affected agencies and the public to provide meaningful responses. (CEQA Guidelines § . 15082(a)(1).) The County's NOP is deficient in several respects. Mr. Timothy S. Neely January 23, 2004 Page 3 First, the NOP provides no detailed information about how the Project differs from the original proposal or about Project construction. At the Scoping Meeting, only artist's renderings of the Project were displayed. The public was referred to the Project's four planning applications for detailed information about the proposed Project. However, the NOP's project description is inconsistent with the Project's existing planning applications and omits information on significant aspects of the Project. For example, Planning Application No. PA030078 for Planning Area 13D (known as the "Upper Casitas ") includes a 3,200 square foot, privately owned recreational center as well as a sign program. However, the NOP omits any mention of recreational facilities or a sign program on the Upper Casitas site. To the contrary, the NOP states that a recreation center is to be located on the site of the Pelican Hill Villas to serve both the Villas and Casitas. Planning Application No. PA030078 describes the Upper Casitas as 13, 2 -story stacked flats, four units per flat, individually owned in fractional shares, to be constructed at the base of the hill adjacent to the Pelican Crest I Community. The Planning Application calls for the stacked flats to be operated /maintained by the resort operator. The Planning Application states that the resort operator would be responsible for other important aspects of Project implementation, including maintaining the fuel modification zone area adjacent to the Pelican Crest I Community. To the contrary, the NOP states that the Casitas may eventually be operated and maintained "by a third party in lieu of the hotel operator." Second, according to both The Irvine Company representative at the Scooping Meeting (Dan Miller), and Bill Melton of the Orange County Planning Department, the Project applications and exhibits that are currently available for public review are in draft and are being revised. Without a consistent and finite description of the Project, the public and decision - makers are being deprived of the ability to properly consider and comment on the potential environmental impacts of the Project. "An accurate project description is necessary for an intelligent evaluation of the potential environmental effects of a proposed activity' (Burbank - Glendale- Pasadena Airport Authoriq, v. Hensler (1991) 233 Cal.App.3d 577, 592). "A curtailed, enigmatic or unstable project description draws a red herring across the path of public input" (Count), ofhiyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193; McQueen ». Board of Directors (1988) 202 Ca1.App.3d 1 136, 1143; Mira Monte Morneowners Association v. Counh, of Ventura (1985) 165 Cal.App.3d 357, 365). The Association and its members cannot adequately evaluate the full impact of the Project because the key information is dispersed among the numerous documents referenced in the NOR For example, the Cooperative Agreement recognizes that the Development Approvals for the Property represent an "extremely complex and integrated plan'. Nevertheless, the numerous documents ostensibly comprising the Project's Development Approvals are not assembled in any one location accessible to the public. As such, the NOP is unlawfully vague, violating the Association's and property owners' due process rights. • The Association requests that the NOP be revised to cure the deficient Project description and be re- circulated for public comment prior to drafting the SEIR. If the County 0 Mr. Timothy S. Neely January 23, 2004 Page 4 fails to address these NOP project description deficiencies and chooses to forge ahead with the preparation of the SEIR, it should bear in mind that CEQA mandates an accurate project description and County's lack of compliance could render the SEIR legally inadequate. (San Joaquin Raptorl'Wildlife Rescue Center v. Count), of Stanislaus (1994) 27 Cal. App. 4th 713, 730.) A complete project description is necessary to assure that all of the project's environmental impacts are considered. (City of Santee v. County of San Diego (1989) 214 Cal. App. 3d 1438, 1450.) A project description must include all relevant parts of a project, including reasonably foreseeable future expansion or other activities that are part of the project. (Laurel Heights Improvements Assn v. Regents of Univ. of Cal. (1988) 47 Cal. 3d 376, 396.) The lack of one, concrete project description violates CEQA in that it precludes the public from intelligent participation in the analysis of the project. (County oflnyo, supra 71 Cal. App. 3d at 197.) The NOP also omits several required Project approvals. For example, the Project will require a use permit from the City of Newport Beach as well as a Development Agreement relating to the payment of taxes to the City by the timeshare owner for the right of occupancy of any timeshare unit. (City Municipal Code section 20.84.040, 20.84.050.) Because the project descriptions contained in the NOP and the Planning Applications conflict with the LCP, amendments to the LCP are also among the required Project approvals. For example, the LCP does not allow third -party management of the stacked flat timeshares. As quoted in the Planning Applications, the LCP requires overnight/resort facilities to be owned and /or managed by the hotel operators or owners. The NOP fails to provide adequate information to analyze the Project's consistency with other parameters established by the LCP. We also note that the NOP and planning applications use the term "casitas" and "timeshares" interchangeably whereas the LCP distinguishes between the two. The foregoing project description deficiencies will prevent meaningful comment. Accordingly, Association requests that the NOP be re- noticed and re- circulated for public review once the County provides an accurate, stable, and finite project description to the public for comment prior to the preparation of the Draft SEIR. B. The Project's Potential Environmental Impacts are Unintelligible from the NOP, Environmental Checklist, and Initial Stud), Another minimum requirement of an NOP is that it must provide the Project's probable environmental effects to allow affected agencies and the public to provide meaningful responses. (CEQA Guidelines § 15082(a)(1).) Before the preparation of an SEIR, the lead agency must decide what issues the SEIR should evaluate. CEQA and the CEQA Guidelines mandate various steps that lead agencies must use to define the contents of an SEIR. Typically, this involves the preparation of an Environmental Checklist and Initial Study. Here, it is impossible to tell, based upon the NOP, which impact areas are, or are not, significant, and the • information upon which the County has determined whether environmental impacts will be discussed in the SEIR, 0 Mr. Timothy S. Neely January 23, 2004 Page 5 First, the NOP's Environmental Checklist does not identify any areas of potential impact to be evaluated in the SEIR. Rather, all are checked as "No Substantial Change from Previous Analysis." Second, the only impact area identified in the Initial Study as a substantial change from the previous analysis is the Project's potential to "substantially degrade the existing visual character or quality of the site and its surroundings." Accordingly, unless the SEIR is to address only that environmental impact area, the NOP fails to satisfy CEQA's requirement that the NOP identify the Project's probable environmental impacts as necessary for the public and affected agencies to comment on the proposed contents and scope of the SEIR. The Association requests that the NOP be revised to clearly articulate the Project's potential environmental impacts that will be addressed in the SEIR, and re- circulated for public comment prior to drafting the SEIR. III. The SEIR Must Discuss Additional Impact Areas The NOP's proposed analysis is built on faulty assumptions, outdated methodologies, and rescinded plans. The NOP proposes to supplement outdated 13- year -old and 15- year -old environmental impact reports, but dismisses further discussion of the vast majority of . environmental impact areas based upon the false assumption that there is no change from the prior environmental analyses and no change with the modified Project. To the contrary, the Project itself (to the extent we can decipher the Project description and compare it to the prior project) is proposed to be significantly revised from the prior hotel project. Conditions surrounding the Project have changed significantly in the past 13 years. New laws have been enacted and then - existing laws and impact evaluation methodologies have been refined by which the Project must be evaluated. The area surrounding the Project and the region have seen substantial development that did not exist at the time the original EIRs were certified, including the Pelican Crest I Community adjacent to the Project site. A. Land Use and Planning The Project's potential impacts to land use and planning must be analyzed in the SEIR. Since the original EIRs were certified 13 and 15 years ago, the Project area has been annexed into the incorporated boundary of the City of Newport Beach. The NOP makes no mention of the applicable City zoning and land use ordinances. Rather, the NOP indicates only that the Project is consistent with policies and objectives of the Orange County General Plan. The SEIR must evaluate the Project's potential general plan and zoning conflicts in light of the City General Plan policies and City ordinances, including those applicable to timeshare projects. The current Project proposes that about half of the resort accommodations would be timeshare facilities (204 hotel accommodations and 188 timeshare accommodations); a significant change from the previously- approved development plans. The Newport Beach City Council has determined that "the unique features of time -share projects can have effects on 0 Mr. Timothy S. Neely January 23, 2004 Page 6 both the areas surrounding such use and the whole of the City" (City Municipal Code section 20.84.010). Accordingly, all timeshare projects within the City require a use permit. Additionally, applications for timeshare projects within the City must include: A Sales Plan addressing the times, areas and methods that will be used to sell the timeshare project, including the location, length, and marketing methods that will be used; distinguishing on -site and off -site marketing and signage; and an estimate of the potential numbers of individuals and automobiles expected during various stages of the sales effort. The plan must also describe measures that will be implemented to reduce traffic during peak hours. A Management Plan describing the methods employed by the applicant to guarantee the future adequacy, stability, and continuity of a satisfactory level of management and maintenance of a timeshare project. • A Contingency Plan addressing the actions to be taken by the applicant if the timeshare project is an economic failure or fails to sell 50 percent of the timeshare estates or uses within two years of receiving a permit to occupy the first unity. (City Municipal Code section 20.84.040.) The Project's available planning applications, which are admittedly in draft, include none of the required plans. In addition, new environmental plans and policies have been adopted since the original EIRs were certified. The SEIR must evaluate the Project's potential impacts to such plans and policies applicable to the Project area including but not limited to additional species listings, survey protocols, critical habitat designations and recovery plans. For example, because the Project area has remained in its natural state while other areas have developed, it should be expected that species displaced by development of the surrounding area have migrated to the Project site. As noted below, this means that updated biological surveys must be undertaken to ascertain the presence of listed and sensitive species and habitat on the Project site and the environmental plans and policies applicable to such species and habitats. The NOP also fails to mention that the Pelican Crest 1 Community is immediately adjacent to the Planning Area I 1 of the Project site. As recognized by the City Council, the Project's proposed timeshares may adversely impact the adjacent community, and indeed the City as a whole. The Pelican Crest 1 Community consists of half acre custom home lots. The Project proposes to site densely- constructed timeshare facilities (4 units per building) and a large recreational facility including a pool. barbeques, clubroom, and fitness center immediately adjacent to the Pelican Crest 1 Community. The Project also calls for the primary entrance for the stacked flats timeshares to be located adjacent to the Pelican Crest l Community, complete with directional and monument signage. The stacked flats are oriented to face toward the Pelican Crest I Community. These timeshares and associated recreational I] Mr. Timothy S. Neely January 23, 2004 Page 7 facilities are simply inconsistent with the immediately adjacent residential land uses and are expected to result in impacts to the Pelican Crest 1 Community both during construction and throughout the Project's existence, including, but not limited to, traffic, noise, air quality, light and glare, aesthetics, fire hazards, geophysical hazards, and seismic hazards. E1R No. 511 discusses Planning Areas 131) and 13E at only a conceptual level. E1R No. 511 states that low density resort uses are compatible with the existing and planned uses surrounding the site. However, it does not analyze the environmental impacts associated with constructing and maintaining the high density stacked flats; timeshares and recreational facilities currently proposed. The SEIR must evaluate the land use impacts of the proposed change in use to timeshare and recreational facilities adjacent to the Pelican Crest 1 Community. Accordingly, the SE1R must address the Project's potential conflicts with the adjacent, existing and planned land uses within the Pelican Crest 1 Community and the greater City of Newport Beach, and measures to avoid or mitigate such impacts. Additionally, the SE1R must disclose and evaluate detailed information concerning the Project's consistency with all of the LCp's parameters. B. Geoahvsical In the past 13 years, development of the Pelican Crest 1 Community has revealed the . existence of geophysical hazards that required installation of extensive bracings to shore up foundations of the single - family homes built on the Pelican Hill east of Pelican Hill Road South and adjacent to the proposed stacked flats timeshares. The previous geophysical analyses and mitigation measures approved for the Project area are outdated. The grading and landscaping plans in Planning Application No. PA030078 call for significant grading to accommodate dense development at the base of that hill and permanent irrigation of the fuel modification zone spanning that area. Project grading and irrigation may undermine the stability of the slope adjacent to the Pelican Crest 1 Community creating an increased risk of damage to the adjacent residences in terms of seismic activity, landslides, mudslides. erosion, changes in topography and unstable soil conditions. ' Page 4 of E1R No. 511 states, "For PAs 13D and 13E, development level information is unavailable and Coastal Development Permit application requests are not being pursued at this time." Page 5.3 of E1R No. 511 states, "One development project (PAs 13D and 13E lacks detailed information to effectively evaluate construction level impacts. The development project in PAs 13D and 13E is evaluated, but with different objectives. The project CDP application, known as Cottage Hotel /Casitas, was withdrawn prior to distribution of the draft E1R. Therefore, a site plan and other planning.data were unavailable to conduct a construction level review. However, the Planning Areas have been adjusted for the Master Coastal Development Permit amendment resulting in a reconfiguration of plamring area boundaries. Consequently, a . conceptual impact analysis has been conducted in this E1R to evaluate this configuration, �J Mr. Timothy S. Neely January 23, 2004 Page 8 The evaluation of the project impacts to geology and soils, and mitigation measures in E1R No. 524 is based upon a 14- year -old (1990) geotechnical investigation. E1R No. 511 relied primarily upon a 16- year -old (January 1988) report as well as a draft report dated June 1989. The SEIR must evaluate the Project's potential geophysical impacts in light of updated geophysical data, including data obtained during construction of the Pelican Crest I Community, and measures to avoid and mitigate those impacts, including indemnifying the Association and homeowners from the risk of loss. C. Hvdrologv and Drainage The laws pertaining to stormwater runoff have changed significantly in the past ] 3 years. The analyses and mitigation measures previously approved for the Project are outdated. It is not sufficient to conclude that since the scope of the proposed development is less than the previous project there is no hydrology and drainage impact. Even though the scope of the current project may be less than the previously approved projects, the impacts will not necessarily be less than previously calculated because the regulations and methodologies to determine whether an impact exists have significantly changed since the original E]Rs were certified. . The analyses of project impacts to hydrology and mitigation measures included in E]R Nos. 511 and 524 are based upon data and analyses, the most recent of which is 16 years old. The methodologies employed in the E]Rs follow the Orange County Management Agency ( "OCEMA ") Rational Method from the OCEMA Hydrology Manual dated October 1986. The SE]R must evaluate the Project's potential hydrology and drainage impacts and mitigation measures in light of current laws and methodologies. D. Water Quality The laws pertaining to water quality protection related to stormwater runoff have changed significantly in the past 13 years. The analyses and mitigation measures previously approved for the Project are outdated. The analysis of project impacts to water quality and related mitigation measures contained in EIR Nos. 5 ] ] and 524 consider the Water Quality Control Plan for the Santa Ana River Basin ( "Basin Plan ") dated 1994, as well as a 16- year -old runoff management plan. The water quality analysis also must be updated in the SE1R to consider the current National Pollutant Discharge Elimination System requirements. The SE1R must evaluate the Project's potential water quality impacts and mitigation measures in light of current laths and methodologies. Additionally, the SE1R must disclose and analyze impacts associated with the proposed desilting basins, detention basins and catch basins including but not limited to odors and vector issues. E. Traffic • is Mr. Timothy S. Neely .January 23, 2004 Page 9 Access to all of the Project's accommodations and facilities will be via Pelican Hill Road. The NOP evaluates the Project's off -site traffic impacts based solely on traffic analyses conducted for the outdated 13- year -old EIR (the NOP indicates that FEIR 511 did not provide a traffic study). As discussed above, conditions surrounding the Project area and the region have changed significantly since that time. It is not necessarily true that decreased development results in decreased traffic impacts. Project traffic projections are based largely on existing and planned development, which has changed dramatically in the past 13 years. Since the methodologies and conditions have materially changed since the prior traffic study, the projected traffic impacts will not necessarily be reduced simply by decreased Project development. The SEIR must include an updated traffic analysis of the Project's off -site traffic impacts in light of existing conditions. Even if the Project is now proposed at a lower density, the types of use proposed by the Project have significantly changed. Consistent with the City's requirements applicable to timeshares, the updated traffic analysis and the Project application must include, but not be limited to. an estimate of the potential numbers of individuals and automobiles expected during various stages of the timeshare sales effort. The plan must also describe measures that will be implemented to reduce traffic during peak hours. The Project must also comply with the City's Traffic Phasing Ordinance (City Municipal Code Chapter 15.40). Additionally, the lead . agency must identify and consult with transportation planning agencies and agencies that have transportation facilities within their jurisdiction that may be affected by the Project (CAL. PUB. REs. CODE § 21092.4(a)). The SEIR must also analyze Project parking for the timeshares in accordance with the City's timeshare parking regulations (City Municipal Code section 20,84.060). Additionally, the NOP indicates that the Project "would provide for more than adequate parking on -site and off - site," without providing any information on the Project's anticipated use of off -site locations to accommodate Project parking needs. Such information is necessary to evaluate the Project's potential traffic impacts. F. Air Ouality A full air quality analysis of the impacts associated with the Project is required. According to the NOP, the air quality analysis for the project was performed in 1982. A 1982 air quality analysis is completely inadequate to determine the impacts of the Project for a number of reasons. First. both the basic methodologies for estimating emissions and the activity data have been substantially revised in the last 22 years, including; • New emission factors for mobile sources and area sources: 0 C� Mr. Timothy S. Neely January 23, 2004 Page 10 • New travel activity data (e.g., average daily vehicle miles traveled (in thousands) in Orange County has increased from 32,468 in 1982 to 65,359 in 2000 ); • New demographic data; and, • New models (Caline -4 for carbon monoxide; Urbemis 2002 for estimating impacts from land use projects; and EMFAC /MVEI7G for emission factors). These updated methodologies and assumptions will significantly change the project - related emissions that were calculated 22 years ago, and will likely result in air quality impacts more severe than previously shown and significant impacts not previously identified. It is improper to then use this inadequate air quality analysis to conclude that since the scope of the proposed development is less than the previous project there is no air quality impact. Even though the scope of the current project may be less than the previously proposed projects, the air quality impact will not necessarily be less than previously calculated because the methodologies and emissions factors to determine whether an impact exists have dramatically changed. Further, it appears from the NOP that emissions were not calculated for the 1988 - project, only an unsupported assumption made that a net reduction from 10 percent to 15 percent of development decreases the amount of emissions associated with the project in 1982. This is untrue since different land uses produce different numbers of trips, which drives the air quality analysis to a great extent. So, a "net" reduction in development does not necessarily translate into a net reduction in air quality impacts. Since the methodologies and emission factors greatly changed between 1982 and 1988, the amount of emissions associated with the project with a reduction in the project size will not result in a linear reduction in emissions. Even if an air quality analysis quantifying the impacts was performed in 1988, it would still suffer from the same deficiencies as the 1982 analysis. Second, it is improper to determine that the Project is consistent with an air quality plan, when the air quality and other related regional plans referred to are hopelessly outdated. The regional plans relied on in this NOP were prepared well before the 1990 Clean Air Act took effect, completely overhauling the air quality planning provisions for this region and air quality requirements. The current air quality plan is the 2003 AQMP. The 2003 AQMP embodies a completely different baseline than existed in either 1982 or 1988. According to the AQMD; the 2003 AQMP also incorporates significant new scientific data, primarily in the form of updated emissions inventories. ambient measurements, new meteorological episodes and new air quality modeling tools. Without performing an analysis, there is no guarantee that the growth assumed from this project is included in the most recently approved plans. At the time the 1982 air quality analysis was prepared for the project, the operative regional plans could not have been the 1989 Air Quality Management Plan ( "AQMP "), 1988 Growth Management Plan ( "GMP" ), and 1988 Regional Mobility Plan. Relying on what appears to be unsupported findings in FEIRs 511 and 524 that the project is consistent with these regional plans without performing an air quality analysis is insufficient. The findings 0 Nor. Timothy S. Neely January 23, 2004 Page 11 must "bridge the analytical gap" between the raw evidence presented the public agency and that agency's ultimate decision. (Topanga Assn far a Scenic Contntunit)) v. County of Los Angeles, 11 Cal. 3d 506 (1974).) The jobs- housing balance strategy identified in the NOP was long ago discarded by SCAG as an air quality reduction strategy. Under the old jobs - housing balance strategy, SCAG proposed a control measure to artificially alter the number of jobs and housing units being created in each subregion. By altering the number of jobs and housing units, SCAG reduced the number of vehicle trips and vehicle miles traveled that would have otherwise occurred, reducing air quality impacts. When SCAG eliminated jobs housing balance from the AQMPs, it devised entirely new transportation assumptions and methods of reducing air quality impacts. As such. consistency with the non - existent jobsthousing balance control measure in 1988, does not make the Project consistent with the region's air quality plans. Third. even if the growth from the Project is built into the growth projections for the region, this does not mean that the Project will not have 'a significant impact on the environment that was not previously analyzed. Project interference with regional plans is one indicator of potential secondary impacts. However, consistency with the regional plans does not connote insignificance. Rather, significance is determined by comparing the Project's direct and indirect emissions to the significant thresholds established by the AQMD for construction and operation. As such, the NOP proposes to utilize an improper significance threshold. Fourth, the NOP acknowledges that emissions were never calculated for the Project's particulate matter less than 10 microns ( "PA410 ") emissions. This region exceeds the federal and state PN410 ambient air quality standards (see 2003 AQA4P). Further, PN410 is one of the criteria pollutants for which the AQMD established a significance threshold. The air quality impacts for all phases of the Project and all air pollutant sources related to the project must be quantified. Air quality impacts from both construction and operations must also be quantified. As such, quantifying only the PM10 emissions associated with construction activities as proposed in the NOP violates CEQA (Pub. Res. Code §§ 15064(a), (d)), as well as the minimum standards for performing an air quality analysis established by the AQMD in its CEQA Handbook. Fifth, there is no evidence that a thorough cumulative impacts analysis was ever performed for this Project. The courts have specifically rejected the concept of a de minimus contribution and instead require a full cumulative impact analysis. (Connnunities.for a Better Environment v. Air Resources Board (2002) 103 Cal.App.4th 98.) G. Noise Similarly, EIR Nos. 511 and 524 analyzed noise impacts based on information and data included in outdated noise analyses. the most recent of which is 14 years old. The SEIR must • include an updated noise analysis and mitigation measures taking into consideration not only i Mr. Timothy S. Neely January 23, 2004 Page 12 Project construction and traffic, but also the Project's newly - proposed timeshare and recreational land uses adjacent to the Pelican Crest I Community. H. Bioloyical Resources Likewise, biological impacts evaluated in EIR Nos. 511 and 524 are based on outdated reports and surveys, the most recent of which are 16 years old. As discussed in the NOP, the Project area has remained in its natural state while other areas of the Newport Coast Planned Community have developed. As a result, it should be expected that species displaced by development of the surrounding area have migrated to the Project site. Also, within the past 13 years, additional listed and sensitive plant and animal species and habitats have been identified and survey protocols have been updated. Updated biological surveys must be undertaken to ascertain the presence of listed and sensitive species and habitat on the Project site and mitigation measures required to avoid or mitigate such impacts. I. Aesthetics EIR No. 511 discussed aesthetics impacts in Planning Areas 13D and 13E, stating only that the then - conceptualized hotel cottages and casitas may be developed on sloping pads at • elevations below the future residential development located on the Pelican Hill summit (the current Pelican Crest I Community). No analysis was conducted of the aesthetics impacts to the affected public within the Pelican Crest I Community adjoining Planning Areas 13D and 13E, or whether and how such impacts would be avoided or mitigated. The SEIR for the currently- proposed Project must include an analysis of the Project's aesthetic impacts, including but not limited to visual impacts and light and glare from the Pelican I Community vantage point, and consistency with currently- applicable standards, as well as measures to avoid or mitigate such impacts. J. Public Sen•ices The Project proposes to site stacked flats timeshares and a large recreational facility east of Pelican Hill Road South and immediately adjacent to the base of the hill below the Pelican Crest 1 Community. As discussed above, there has been only conceptualized environmental analyses conducted for Planning Areas 13D and 13E. The SEIR must evaluate the impacts to all public services resulting from the current Project. It is apparent that the proposed site plan exposes the Pelican Crest 1 Community to an increased danger of wildfires. The SEIR must evaluate the Project's potential fire impacts and measures to avoid or mitigate such impacts. K. Water Supply Both EIR Nos. 511 and 524 predate the requirement to include a water supply assessment as part of the environmental review for certain projects (CAL. WATER CODE §§ 10910, et seq.). The NOP provides little information related to the Project's water supply. However, it appears that the Project is among the types of projects required to prepare a water 0 Mr. Timothy S. Neely January 23, 2004 Page 13 supply assessment because it is a proposed business establishment having more than 500,000 square feet of floor space, and because it would cumulatively demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project (CAL. WATER CODE § 10912). In any event, E1R Nos. 511 and 524 evaluate impacts to water supply and wastewater facilities based upon the outdated Irvine Coast Sub -Area Master Plan dated 1989. The SE1R must evaluate Project impacts to water supply pursuant to the current Irvine Ranch Water District Water Resources Master Plan and Urban Water Management Plan and Urban Water Management Plan. IV. The Draft SEIR Must Consider Alternatives The SE1R must consider a reasonable range of alternatives for the Project. CEQA requires that an EIR describe a range of reasonable alternatives to the Project, or to the location of the Project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project (CAL. PUB. REs. CODE § 15126.6). The Association requests that the SE1R analyze combinations of the following alternatives to the Project's proposed construction within Planning Areas 13D and 13E: Shifting Construction West of South Pelican Hill Road. Remove and relocate to the west side of South Pelican Hill Road the structures currently proposed to be constructed east of • South Pelican Hill Road. Among the advantages of this alternative are minimizing grading and irrigated landscaping at the base of Pelican Hill; maintaining South Pelican Hill Road as an impact buffer and fire break between the resort and adjacent residential development; and maintaining larger areas of undisturbed soils and native vegetation. Relocating; Recreation Area Proposed for PlanninpArea 13D. Relocate the recreation area and primary entrance to the stacked flats timeshares to the North end of Planning Area 13D. The Irvine Company has orally represented to Pelican Crest 1 homeowners that the recreational facilities would be relocated to the west side of Pelican Hill Road South. Among the advantages of this alternative are reducing noise and glare expected to result to adjacent residential land uses and easing traffic impacts. Reorienting the Stacked Flats Timeshares. Reorient the stacked flats timeshares to face West and to take access along a frontage road. Among the advantages of this alternative are removing a significant amount of grading and irrigated landscaping from the base of Pelican Hill; leaving a larger area of undisturbed soils and native vegetation; and providing a greater distance between the stacked flats and the adjacent residences to act as an impact buffer. Reduced Densitv Timeshares. In place of the proposed stacked flats timeshares, include single story units with subterranean parking, and reduce the size of the associated recreation area accordingly. Among the benefits of this alternative are reduced traffic impacts; reduced noise: reduced grading at the base of Pelican Hill; and maintaining a larger area of undisturbed . soils and native vegetation. 0 Mr. Timothy S. Neely January 23, 2004 Page 14 Relocating the Stacked Flats: Relocate the stacked flats to the area north of the Marriotl Villas and west of Pelican Hill Road. Among the advantages of this alternative are minimizing grading and irrigated landscaping at the base of Pelican Hill; maintaining South Pelican Hill Road as an impact buffer and fire break between the resort and adjacent residential development; and maintaining larger areas of undisturbed soils and native vegetation. V. A Subsequent and Not Supplemental EIR Must be Prepared CEQA Guidelines § 15163 provides that a supplemental EIR may be prepared where "only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation." A subsequent EIR, on the other hand, must be prepared where major changes are required to make a previous EIR adequate. (CAL. PUS REs. CODE § 21166; CEQA Guidelines § 15162.) Here, through nothing more than a conclusory statement, the NOP states that "[b]ased upon an initial review of the application of the proposed project, the County has determined that a Supplemental Environmental Impact Report must be prepared to assess the proposed project's effects on the environment, to identify any new potentially significant impacts, and to identify feasible mitigation measures to reduce or eliminate potentially significant environmental impacts." However, as noted above, major changes are required to the previous EIRs. The County also fails to mention in its NOP that the SE1R will be the first environmental analysis of construction level impacts within Planning Areas 13D and E, the two timeshare planning areas closest to the Pelican Crest I Community and with the greatest potential for adverse environmental impacts. As noted above, EIR No. 511 states, "One development project (PAs 13D and 13E) lacks detailed information to effectively evaluate construction level impacts." Accordingly, the environmental analysis in EIR No. 511 for construction of Planning Areas 13D and 13E are at a "conceptual level of detail, rather than a construction level of detail." EIR No. 524 analyzes the potential environmental impacts of developing a proposed Hyatt Resort at Pelican Hill in most of Planning Area 13C, consisting at that time of a 450 - guest room hotel, with associated banquet facilities; retail, restaurants, health club, tennis courts and parking. The resort hotel was to consist of a series of palazzos (larger multistoried buildings), villas (smaller free - standing buildings of one and two stories) and other structures. The total project building area evaluated in EIR No. 524 consists of 505,000 square feet. Accordingly, environmental review of the Project must proceed by way of a Subsequent EIR rather than a Supplemental EIR as proposed. VI. The City's Discretionan, Land Use Authority is Not Properiv Delegated to the County • Despite the fact that the Project is located entirely within the City's municipal boundaries, the NOP states that the entitlements for the Project are subject to revieNN and Mr. Timothy S. Neely January 23, 1-004 Page 15 approval by the County of Orange. The NOP references the Public Resources Code and a Cooperative Agreement between the City and County dated October 9, 2001. Under the circumstances here, the City could not legally delegate its discretionary land use authority to the County. The applicant is proposing to materially change the Project from the prior approvals that form the basis of the Cooperative Agreement. Indeed, the Cooperative Agreement itself recognizes that the reason the parties entered into the agreement is due to the City's alleged staff deficiencies. The County is not simply implementing the approved project. According to the Cooperative Agreement, the City has adopted general plan and zoning designations for the property at issue. Further, the City has approved an Annexation and Development Agreement in order to ensure the Project's consistency with and to implement the City's General Plan. Thus, the Project is required to be consistent with the City General Plan and zoning ordinances — not County's. The Cooperative Agreement is intended to transfer to the County "responsibility for processing all permits and approvals necessary to facilitate the habitat dedications and development consistent with the Development Plan." This transfer was ostensibly handled in compliance with Government Code sections 51300 et seq. Government Code section 51330 provides that while a charter city; such as the City here, may transfer "any of its functions and any of the functions of an officer, board, or commission to an officer. board; or commission of the county in which the city is situated." • such transfer must be authorized by the City's Charter. Section 405 of City Charter provides that "All powers of the City shall be vested in the City Council except as otherwise provided in this Charter." The City's Charter does not authorize the transfer of its discretionary land use authority to the County. As of the Effective Date, the Project called for development of a 450 -room hotel in Planning Area 13C of the Project site. As noted in EIR No. 511, the prior hotel cottages and casitas development project in Planning Areas 13D and 13E had withdrawn its Coastal Development Permit application and no site plan or other planning data were previously evaluated. The County now proposes to materially amend the Project to construct time -share accommodations and associated facilities in Planning Areas 13D and 13E. This change is substantial and is outside the scope of the powers purportedly transferred in the Cooperative Agreement. Indeed, as noted within the City's Municipal Code "time -share projects differ in many aspects from other transient visitor facilities in types of construction, forms of ownership, patterns of use and occupancy, and commercial management; and the City Council determines that the unique features of time -share projects can have effects on both the areas surrounding such use and the whole of the City." (City Municipal Code Section 20.84.010.) As such, timeshare projects require a City use permit and development agreement. (City Municipal Code Section 20.84.40. 20.84.50.) 0 Mr. Timothy S. Neely January 23, 2004 Page 16 VII. Conclusion We appreciate the opportunity to comment on the NOP and the scope and content of the SEIR. For the reasons discussed above, the NOP must be corrected and recirculated prior to preparation of the SEIR. The SEIR must be prepared as a subsequent EIR rather than a supplemental EIR as presently proposed. The SEIR must consider additional impact areas beyond those currently proposed. Also, the SEIR must evaluate Project alternatives to avoid and mitigate the Project's anticipated environmental impacts. Respectfully submitted, JACKSON DEMARCO & PECKENPAUGH Michael L. Tidus Michele A. Staples Gregory P. Regier By Michele A. Staples I* cc: Newport Beach City Council Members 00178\ 519243.2