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HomeMy WebLinkAbout16 - AERIE Project - CorrespondenceCI& Delivered via facsimile and first class mail August 8, 2007 Mayor and City Council "RECEIVED AFTER AGE A PRINTED." � - -D 7M7 AUG 13 All 9- 55 City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 FAX: (949) 644 -3139 (City Attorney's Fax Number) 169 Saxony Road Suite 204 Encinitas, CA 92024 tel 760- 942 -8505 fax 760 - 942 -8515 'nww:Coastlawgroup.com RE: AERIE PROJECT (PA 2005 -196), 201 -205, & 207 Carnation Avenue, and 101 Bayside Place. Failure to Produce Appendices and Other Attachments to Conceptual Grading Plan Review Report Honorable Mayor, City Council, and City Attorney: Please excuse me if I am becoming increasingly strident about our problems with the document production on the AERIE Project. I have just been informed by our retained geologist that the attachments are missing from the Conceptual Grading Plan Review Report, prepared by Neblett and Associates, dated August 5, 2005. The missing documents include among other things, the boring logs, the slope stability analyses, fault investigation, and information about the lateral pressure shoring system (obviously important to the neighbors). I have attached the page listing the documents, maps, and other details that are missing from the report. (Page 36 of Conceptual Grading Plan Review Report). The City Attorney's Office has informed me that they do not currently possess such documents despite our Public Records Act request. Debbie from the City Attorney's Office informed me she would contact Planning to ask about the documents. I have also contacted Neblett and Associates in an attempt to immediately obtain the required documents. They informed me thal they will get back to me after talking to their client. I am not optimistic about getting such documents in a timely fashion. This is absolutely unacceptable. Documents which support the mitigated negative declaration should be available at any time for the public's review without notice or the necessity of submitting a Public Records Act request. It is three days prior to the close of the comment period, and we are still attempting to get necessary public documents from the City for our experts' review. My clients have gone to considerable expense to hire experts to have the project properly reviewed. If you find the attachments, immediately make copies and overnight them to our geology . expert at: Matt Hunter, P.E. C.E.G., G.E. LAGUNA GEOSCIENCES, INC. 31642 S. Coast Hwy. 4100 Laguna Beach, CA 92651 Fax: (949) 499 -7430 City of Newport Beach RE: Lack of Attachments to Conceptual Grading Plan August 8, 2007 Matt Hunter's office phone number is (949) 499 -7874 if you need to contact him. I will pay for the copying'and Fed Ex charges. Better yet, if you have the capability of converting such documents into PDF files, please scan them and email them to me immediately at tcardiff(cD,coastlawgroup. com. In addition, if you are unwilling to reschedule the August 14, 2007 City Council hearing on the AERIE Project, please have one of the City's attorneys call me tomorrow and explain the City's position. Failing to provide such documents in a timely fashion is a denial of my clients' fundamental right to administrative due process and a violation of CEQA. Sincerely,. O� ealol Todd T. Cardiff, Esq. Attorneys for Lisa and Joe Vallejo and Kathleen McIntosh ' Advanced Real Estate Services, Inc. August 5, 2005 Conceptual Grading Plan Review Report Project No. 416 -000 -03 Condominium Project Page 36 of 38 201 -205 and 207 Carnation Avenue Corona del Mar, California Attachments: List of References Figure 1 : Site Location Map Figure 2 : Tie-back Anchor Detail Figure 3 : Lateral Pressure Distribution for Shoring System Figure 4 : Tie -back Anchor Capacities Appendix A : Boring Logs and BIPS Appendix B : Laboratory Test Results Appendix C : Seismic Hazard Analysis and 2001 CBC (1997 UBC) Seismic Design Parameters Appendix D : Slope Stability Analyses Appendix E : Fault Investigation Conceptual Grading Plans (Map pocket) Plate 1 : Geologic Map (Map pocket) Plate 2 : Cross - Sections (Map pocket) , N File: 416 -000 -03 080505 ARES — Condo. Project — Conceptual GP Review.doc Neblett & Associates, Inc. August 13, 2007 Mayor and City Council City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 169 Saxony Road Suite 204 Encinitas, CA 92024 tel 760 -942 -8505 fax 760-942 -8515 ww .coasUawgroup.ccm Ira Facsimfle, First Class, and Electnwk Mall (949.644.3229; jeampbell @city.newport - beach.ca.us) RE: AERIE PROJECT (PA 2005 -196) 201 - 205, & 207 Carnation Avenue, and 101 Bayside Place Citizens' Comments on Mitigated Negative Declaration Honorable Mayor and City Council, Coast Law Group LLP (CLG) submits this letter on behalf of Lisa and Joseph Vallejo, and Kathleen McIntosh. This letter is intended to be read in conjunction with and supplements CLG's letter dated August 13, 2007 regarding the inconsistency of the AERIE Project with Newport Beach's Coastal Land Use Plan (CLUP). Such comments on the CLUP are incorporated herein, and should be applied equally to the City Council's consideration of the mitigated negative declaration (MND). The AERIE Project is described as the construction of a 9 condominiums, each with seven levels, for a total of over 73,000 square feet of floor area, located at the 201- 207 Carnation Avenue and 101 Bayside Place. (MND at 1 & 5.) It is truly a massive project with two levels above Carnation and four levels located below the bluff -top extending to within 30.5 feet above mean sea -level (MSL). (MND at 2 & 4.) The bottom level will be located behind the bluff face, and will extend to within 20 feet above MSL. (Neblett and Associates, "Conceptual Grading Plan Review Report," at 2.)' The Project will require the excavation and transport off -site. of 31,524 cubic yards of bluff material consisting of hard to very hard Monterey Formation Sand Stone (MND at 4; Conceptual Grading Plan at 14.) Construction is anticipated to take over 2.5 years. (MND at 50.) A MND is not appropriate under CEQA for a project of this size, scale and location. The mitigation measures imposed do not reduce the impacts to a level of insignificance. The initial study fails to identify and investigate a number of potentially significant impacts. Among other impacts, the AERIE Project may have a significant impact on noise, traffic, parking, geology, aesthetics and hazardous material handling. Because the proposed Project may have a significant impact on the environment, the City Council must require a full environmental impact report (EIR) under the California Environmental Quality Act (CEQA). (Pub. Res. Code § 21080.) The City must deny the Project as currently proposed. ' Hereinafter the Conceptual Grading Plan Review Report will be reviewed as the "Conceptual Grading Plan." Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 2 of 13 A. The City Must Require the Applicant to Prepare an Environmental Impact Report Whenever Any Portion of the Project May Have a Significant Impact on the Environment. In order for the City of Newport Beach (City) to rely on a MND to analyze the Project, all potential impacts caused by the Project must be avoided or mitigated "to a point where clearly no significant effect on the environment would occur." (Pub. Res. Code § 21080(c)(2).) If any portion of the Project may have a significant impact, an environmental impact report (EIR) must be prepared. (CEQA Guidelines 15063(b)(1).) CEQA requires the preparation of an EIR "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." ( No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 75.) "Substantial evidence... means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions may also be reached." (CEQA Guidelines section 15384.)2 Substantial evidence includes facts, reasonable assumption predicated upon facts, and expert opinion supported by facts. (Pub. Res. Code § 21080(e)(1).) Substantial evidence to support a fair argument that there may be significant impact on the environment may be provided by the general public or by expert opinion. (Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th 903, 928.) A MND will only be upheld when there is no credible evidence that the project may have a significant environmental impact. (Quail Botanical Gardens Found. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602.) If there is a disagreement between experts as to whether an impact is significanC the lead agency shall treat the impact as significant and prepare an EIR. (CEQA Guidelines section 15064(g);..... Sierra Club v. County of Sonoma (1992) 6 Cal. App. 4th 1307, 1317.) In this case, experts have identified a number of potentially significant impacts. B. The City Cannot Exempt Construction Noise Impacts from the California Environmental Quality Act. The MND claims that there will be no significant impact from construction noise because the Newport Municipal Code Exempts Construction Noise from its noise ordinance. (MND at 49.) Normally, Noise which exceed 55 decibels during the day in a residential neighborhood is considered a nuisance under the Newport Beach Municipal Code (NBMC). (NBMC § 10.26.025.) However, construction noise is exempt from such noise standard. (NBMC § 10.26.035(d).) Instead, the Municipal Code regulates the time and days of the week construction activity is permitted. (NBMC § 10.28.040). Construction activity is permitted by the Municipal code from 7:00 a.m. to 6:30 p.m. Monday through Friday, and on Saturdays between 8:00 a.m. to 6:00 p.m. (NBMC § %28.040.) z The CEQA Guidelines may be found in the California Code of Regulations, Chapter 14, section 15000 et. seq. Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 3 of 13 While construction activities are exempted from the prohibitions of noise under the Municipal Code, such local exemption does not and cannot exempt construction noise from the compliance with CEQA. (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal. App. 4th 98, 116.) The City cannot simply deem compliance with the construction noise exemption as a per se insignificant environmental effect. The City must determine whether there may be a significant impact caused by the Project despite complying with the requirements of time constraints. In fact, the City code itself seems to indicate that all construction activity may have a significant impact on the environment. Section 10.28.040 of the Municipal Codes states, No person shall, while engaged in construction, remodeling, digging, grading, demolition, painting, plastering or any other related building activity, operate any tool, equipment or machine in a manner which produces loud noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the vicinity, on any weekday except between the hours of seven a.m. and six -thirty p.m., nor on any Saturday except between the hours of eight a.m. and six p.m.. Such ordinance contemplates that construction, remodeling, digging, grading, demolition all produce loud noises that disturbs people of normal sensitivity. The MND explains that the ordinance restricts the construction activity to when people are most active and the noise from construction is most tolerable. (MND at 50.) However, the MND ignores the fact that the AERIE Project is not normal residential construction. The AERIE Project is the equivalent of constructing a small hotel in the middle of an established, and typically tranquil, residential neighborhood. Exacerbating the noise impacts is the proposal to excavate a tremendous amount of hard rock material. The noise generation from such work simply cannot be considered on par with the level of construction noise contemplated from typical development in the area. In other words, the City must analyze the levels of noise expected from the 32,000 cubic yards of excavation, the construction of 73,000 square feet of residential space, and the thousands of truck trips — all over a 2.5 year period. This intensive schedule will result in impacts dwarfing those one would expect from the construction of a modest single - family dwelling in the neighborhood. As such, the City cannot merely turn a blind -eye and claim "no significance" based upon the noise ordinance exemption. C. There is Substantial Evidence that Noise from the Construction of the Project may have a Signficant Impact on the Environment The MND states construction equipment commonly emits noise that registers at 75 -100 decibels at a distance of 50 feet and construction will take place of 2.5 years. Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 4 of 13 (MND at 50.)3 Considering that construction is taking place in a residential zone, the MND fails to properly analyze the significant impact from noise. As discussed below, there will be a significant environmental impact caused by construction noise. First, it must be noted that 75 -100 decibels is an extreme level of noise in a residential neighborhood. The maximum level of noise allowed by the Newport Beach for residential zones is 55 decibels during the daytime. (NBMC § 10.26.025.) Generally speaking, for every increase of 10 decibels, a person perceives a doubling of the sound intensity.° Thus, a noise that registers at 65 decibels sounds twice as loud as a noise which is 55 decibels. A noise which is at 75 decibels is twice as loud as a noise which registers at 65 decibels. Construction equipment which registers a 100 decibels at 50 feet, is exponentially louder than 55 decibels. In addition, sound has a cumulative effect. If two pieces of construction equipment each emit 80 decibels at 50 feet, then the cumulative effect of such noise is actually 83 decibels at 50 feet." Thus, the more equipment which is causing noise at one time, the louder the noise impact will be. And it is not simply the noise from diesel engines which will be problematic. Demolition of the existing structure will include the snapping of wood and clanking of metal on concrete as the structure is removed. Excavation will include the clanking of excavator buckets and drills on bluff material. Further, as discussed by our geologist, the bluff is made up of "locally hard to very hard sand stone of the Monterey Formation."3 (See also, Conceptual Grading Plan at 14.) The geologist notes that some of the rock must be excavated using hoe -ram or rock chisel equipment. Clearly, the excavations using hoe rams and rock chisel equipment will be extremely jolting and disturbing. Considering the fact that the construction will continue for 2.5 years, the impact of noisy machinery is a significant Impact on the environment. Finally, the fact that the AERIE Project is located on a coastal bluff exacerbates its likely noise impacts. Sound travels farther over water.' Machinery producing 100 3 See also, P & D Consultants, Environmental Information Form August 2005, at 8 -9 ( "Noise levels associated with construction equipment at a distance of 50 feet, include 80 decibels (dBA) for a backhoe, 85 dBA for a concrete mixer, 82 dBA for a concrete pump, and 74 dBA for an asphalt layer and roller.) ° Leland K. Irvine and Roy L. Richards, ACOUSTICS AND NOISE CONTROL HANDBOOK FOR ARCHITECTS AND BUILDERS, at 7 (Excerpts attached hereto as Exhibit 1). 5 ACOUSTICS AND NOISE CONTROL HANDBOOK FOR ARCHITECTS AND BUILDERS, at 7 (Exhibit 1). r' Correspondence from Laguna Geosciences, Inc., August 10, 2007 (attached hereto as Exhibit 2). Matt Hunter, C.E., C.E.G.. (G.E. Lic # 2465; C.E.G Lic # 1713.) ' Howard Shaw, PhD and Cheryl Jackson Hall, PhD, `Why Sound /Noise Carries So Well Over Water," available at Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 5 of 13 decibels of sound at 50 feet may be able to be heard in sailboats entering or exiting Newport Bay, and could potentially be heard all the way across the channel. The impact of noise will not be a localized phenomenon. There is a substantial evidence to support a fair argument that the construction will cause a significant impact from noise, and therefore an Environmental Impact Report must be prepared. D. The Project Schedule Contained in the MND is Unrealistic, and therefore the Noise Cannot be Considered Merely a Temporary Annoyance. The MND indicates that construction will occur over a period of 2.5 years. To meet this schedule, according to the applicant, the excavation will be completed in four to six weeks with 100 dump truck trips per day. However, it is highly unlikely such a feat could be accomplished. One hundred dump truck trips a day, equals one dump truck load every 4.8 minutes. (8 hours x 60 minutes = 480 minutes = 100 trips = 100 trips.) Even assuming an 11.5 hour day, there would still have to be one dump truck loaded every 6.9 minutes.8 This means that excavators, drilling rigs and other excavation equipment will be running constantly for one to two months, if it can be done in that short of time. (MND at 52.) However, this construction timeline strains credibility, especially considering that the rock and soil will have to somehow be transported up the bluff to Carnation Avenue According to the elevations in the MND, Carnation Avenue is located at 70 feet above MSL. (MND at A -1 "Site Plan ") Considering that the bottom of the existing structure is located at 52 feet MSL, excavation will start at almost 20 feet below the level of the street. Thus, somehow, the applicant must transport the bluff material 20 feet from grade, up to street level, and then into a dump truck, which is at least another 10 feel above ground. Of course, the logistical difficulties in transporting excavated material up the bluff will only get worse as the excavation continues down the bluff. At the lowest level of the planned Project, excavation will occur at only 20 feet above MSL. (Conceptual Grading Plan Review Report, Aug. 5, 2005, at 15.) Thus, the rock and soil must be vertically elevated 50 feet up the bluff to street level, and then loaded into a 10 -12 cubic yard dump truck, which theoretically will be loaded in 4.8 - 6.9 minutes. Such construction schedule is highly unlikely, if not physically impossible, especially considering the hard to very hard rock in the bluff, and the fact that there is yet to be delineated a proposed haul route or a dedicated disposal site for excavated material. (MND at 52.). http:// www. mnresponsibleree .org /previoussite /resources /sound.htm. (attached hereto as Exhibit 3). 8 (11.5 hours x 60 minutes = 690 minutes = 100 truck trips = 6.9 minutes) Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 6 of 13 A much more likely scenario is that excavation would take at least six months, if not more. This is how such schedule may be determined. According to the MND, the Project requires the excavation of 31,524 cubic yards of material. (MND at 4.) The applicant estimates that excavation will take between 2,300 to 2,700 truck trips. (MND at 52.) Thus, each dump truck must carry between 12 -14 yards of material. (31,524 = 2,300 = 13.7; 31,500 = 2,700 = 11.6). Assuming that the applicant could actually load four dump trucks an hour or 32 dump trucks a day, that is approximately 384 - 448 cubic yards that could be excavated per day. There is approximately 20 working days per month. Thus, the applicant could excavate between 7,680 to 8,960 cubic yards of excavation per month. In a best case scenario, if excavation could continue each day for 8 hours, with filling four dump trucks per hour, excavation will take between 3.5 to 4.1 months. Of course, the above scenario assumes that there will be no haul days lost to everyday or unanticipated delays. Given the substantial effort that will be necessary to brace the bluff walls as excavation proceeds, coupled with the logistics of maneuvering drill rigs and other heavy equipment up and down the bluffs, it is more likely than not the significant noise impacts will continue well beyond the expected time frame. E. There is Insufficient Analysis of Construction Impacts on Traffic. The MND inappropriately asserts construction of the Project will not have a significant impact on traffic. The record lacks substantial evidence to make such determination and instead improperly defers the study and implementation of mitigation measures until after approval of the Project. First, there is insufficient analysis in the MND of existing traffic congestion surrounding the Project. And because the baseline level of service for the streets likely to be affected has not been determined, no assertion of impact significance can be made at this time. While the MND admits significant traffic congestion occurs during the summer months, it ignores congestion every resident knows exists during numerous other times of the year. (MND at 52.) Without such baseline data, it is impossible for the City to determine whether the considerable traffic impacts could ever be mitigated to a level of insignificance. The only evidence in the record. is that there are small and narrow residential streets surrounding the Project. Given the admission of such a relevant constraint, t is the responsibility of the City, not the public, to prepare the proper traffic studies prior to review of the Project. (Sandstorm v. County of Mendocino (1988) 202 Cal. App.3d 296, 311.) The MND fails to provide substantial evidence that the traffic can be mitigated to a level of insignificance. Information Provided in the MND Suggests a Strong Likelihood that Construction Traffic Impacts Will Be Significant What information there is in the MND constitutes substantial evidence that construction traffic may indeed cause significant impacts to the neighborhood and community. The rough estimate of construction vehicle traffic states there may be up to Citizens' CEGWMND Comments RE: AERIE Project (PA 2005 -186) August 13, 2007 Page 7 of 13 100 dump trucks a day during excavation for the Project. In an 8 hour day, this breaks down to one truck every 4.8 minutes. If the applicant worked from 7:00 a.m. to 6:30 p.m., one dump truck every 6.9 minutes will need to be arriving, loading and leaving the construction site. Between 2,300 to 2,700 dump trucks will be required to haul excavated materials through narrow residential streets and intersections that are at least occasionally impacted under current conditions. (MND at 52.) However, this is not the full extent of the construction traffic. The MND does not describe how many dump trucks will be required to haul away the material generated from demolition of the 14 unit existing structure. In addition, there will be 575 concrete mixers and pump trucks, along with a number of flat bed trucks, back hoes, drill rigs, and cranes. (MND at 49.) This leads the MND to conclude that there could be some adverse impacts: flor example, a convoy of tracks taking a route along narrow residential streets with numerous stop -sign controlled intersections could slow local traffic, impede turning movements at private driveways, and could result in potentially intrusive noise.and bursts of exhaust emissions as trucks slow, stop and the accelerate through successive intersections. (Id. at 49 -52.) This narrative description of potentially significant impacts triggers the obligation for further analysis and appropriate mitigation. CEQA requires a full environmental impact report whenever any aspect of the project may have a significant impact on the environment. (CEQA Guidelines 15063(b)(1).) Clearly, the information contained in the MND demonstrates construction vehicles traveling to and from the Project site may have a significant impact on traffic, noise and air quality. 2. Insufficient Information Exists to Determine Whether Construction Traffic Impacts Can or Will be Mitigated. Nevertheless, the MND summarily concludes traffic impacts will be mitigated to a level less than significant. (MND at 52 -53.) The sole mitigation measure contemplated to achieve this goal is the "development and implementation of a construction traffic control plan and to designate the contents of the plan." The City and applicant must be aware such post approval development and imposition of mitigation requirements would violate CEQA. Indeed, identification of impacts and consideration of feasible mitigation measures prior to project approval are the very cornerstones of CEQA law. (Sandstorm v. County of Mendocino (1988) 202 Cal. App. 3d 296, 306 -07.) CEQA case law further clarifies that the City cannot avoid preparing an EIR by relying on mitigation measures adopted during the design review process subsequent to project approval. (Quail Botanical Gardens Found. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1606 fn.4.) CEQA unambiguously requires identification and incorporation of mitigation measures or alternatives which reduce the impacts before the MND is released to the public, let Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 8 of 13 alone approved. (Pub. Res. Code 21080©)(2); CEQA Guidelines 15070.)9 Apparently in anticipation of objection, the MND claims "the ultimate destination of the export material cannot be determined until time of grading, and the conditions, advantages and disadvantages of potential haul routes cannot be determined until that time." This reasoning is downright ludicrous, and fails for many reasons. First, characterization of export sediment quantity and quality can at the very least be estimated, with potential disposal options identified and analyzed based on the range of limitations that would be created under various scenarios. Similarly, the number of streets available for ingress and egress to the Project site is limited. Only Ocean Boulevard or Seaview Avenue provide direct access to the Project, and both of these are small residential streets. As a first option for exiting the neighborhood, trucks could proceed down Femleaf Avenue to Pacific Coast Highway. This is not likely due to a steep hill on Fernleaf that would exacerbate traffic, noise and air quality impacts of heavily - loaded, slow- moving dump trucks and other construction vehicles. A more likely second option for construction traffic would be to proceed down either Seaview Avenue or Ocean Boulevard to Marguerite Avenue, which would require traffic to proceed through at least eight slow blocks of narrow residential streets with multiple stop signs. And while Marguerite Avenue would eventually lead trucks onto Pacific Coast Highway, that intersection is signalized and already burdened by heavy traffic. Because the level of service for Marguerite Avenue is not specified in the MND, the daily addition of 100+ dump trucks and other construction vehicles to the street and intersection has not been assessed. There are a very finite number of routes for construction traffic, and without analysis at the MND stage of project approval, neither the City Council nor the Public can credibly discern whether the Project will have a significant impact on the environment. Oddly, the MND identifies where the staging area for the trucks will be — on Pacific Coast Highway, south of Cameo Highlands Drive. (MND at 54.) If there is sufficient information to identify the staging area for the trucks, it is unclear why the advantages and disadvantages of particular haul routes cannot similarly, be determined. It appears the City and Applicant are deferring the description of potential haul routes to avoid the inevitable public outcry when people realize that thousands of large dump trucks will be driving down their small, poorly maintained local streets. The draft resolutions for Project approval further confound the matter. They state, "Construction traffic routes ... shall avoid narrow residential streets, unless there is no alternative." (Planning Commission Draft Resolution 1104, emphasis). The 9 "[A]ny necessary mitigation measures must be specifically set forth at the time of publication of a mitigated negative declaration in advance of the City's, adoption of it." Quail Botanical Gardens, supra, at 1606 fn. 4.) Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 8 of 13 rationale for the condition is that routing construction traffic down narrow residential street would constitute a significant impact, and therefore must be avoided if at all possible. But, as noted, because there are limited options for ingress and egress, all of which implicate narrow residential streets, in this case construction traffic will necessarily cause a significant unmitigable impact. Therefore, the City must prepare an EIR. F. Construction and Dump Truck Traffic will Destroy Already Heavily Damaged Streets. The aerial photograph in Figure A -17 of the HIND provides a unique perspective on the condition of the road surfaces on Ocean Boulevard and Carnation Avenue. The immense number of cracks in the concrete are clearly visible, and every driver on Carnation or Ocean Boulevard is aware the streets are extremely rough and in considerable disrepair. As noted by our Civil Engineer, Kevin Wohlmut, P.E., heavy truck traffic, especially fully loaded cement trucks (of which there will be at least 575) and dump trucks will wreak havoc on the surface of Ocean Boulevard and Carnation Avenue, and any other surface streets where truck traffic is routed.70 These residential streets are not built or designed to accommodate the massive vehicle weights of fully loaded cement trucks and dump trucks. The roads will age quickly, pot holes will develop and further cracks will occur. The streets may even buckle in certain places. Of course, it is not just Carnation Avenue and Ocean Boulevard that will fall into further disrepair. The entire haul route, except for roads that are specifically designed to handle heavy truck traffic (64,000 GVWR) will be damaged and quickly age. The MND fails to address this highly likely damage to local streets, and therefore violates CEQA. G. The MND Fails to Address, Study or Mitigate the Potential Impacts of Asbestos Removal From the Existing Building. The Initial Study checklist fails to identify any potential for hazardous material at the Project location. However, according to the Phase I Environmental Assessment Prepared by P & D Consultants (Phase I Report), the existing building may have asbestos, a classified hazardous material. The Phase I Report states: 5.1 Asbestos: In view of the age of the buildings, the presence of asbestos - containing 10 See correspondence from engineer Kevin Wohlmut, August 10, 2007, attached as Exhibit 4)., Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 10 of 13 building materials is possible. With the consent of Mr. Cerruti, no sampling for asbestos was performed. (Phase I Environmental Report, dated May 26, 2005, at 12.) Mr. Cerruti is the Director of Property Development for Advanced Real Estate Services, Inc. (Phase I Report, cover page.) It is unclear what qualifications Mr. Cerruti possesses that would permit him to exempt a building that may have asbestos from otherwise required sampling. As a hazardous material, asbestos requires special handling and consideration of a myriad of procedures to protect the public, workers and the environment from harm. (8 Cal. Code Regs. 1529.)" Specially trained people must supervise the demolition. (8 CCR 1529(b) "competent person'; 8 CCR 1529(e)(6).) Special demolition techniques must be used to encapsulate the asbestos and prevent asbestos dust from contaminating and injuring workers, neighbors, and the environment. (See e.g., 8 CCR 1529(g).) Special medical exams must be given to workers after asbestos exposure. (8 CCR 1529(m).) The failure to test for asbestos could endanger the lives and health of workers, neighbors and others who may come in contact with asbestos laden material. The failure to conduct necessary studies renders it more likely the fair argument standard will be met and an EIR will be required. (Sandstorm v. County of Mendocino (1988) 202 Cal. App. 3d 296, 311.) It is not the public's duty to prepare the proper studies. (Id.) The initial study failed to identify the potential for hazardous material onsite despite the statements contained in the Phase I Report. Because the Phase I Report indicated the potential presence of asbestos, and the applicant failed to conduct the proper studies to confirm or deny the presence of asbestos, the MND cannot be certified. The evidence contained in the Phase I Report, in itself; constitutes substantial evidence to support a fair argument that the potential presence of asbestos may be a significant impact to the environment. The City cannot certify the MND without addressing the potential impact of asbestos. H. The MND Fails to Address, Study or Mitigate the Potential Impacts of Lead -Based Paints in the Existing Building. Mr. Cerruti makes the same unqualified judgment to not test for lead -based paints despite the potential presence of lead based paints in the existing building. The Phase I Report states: 5.2 Lead -Based Paint In view of the age of the building, the presence of lead based paint is " See also CAL OSHA website, attached hereto as Exhibit 5, (http: / /www.dir .ca.gov /DOSH /ACRU /ACRUinfo.htm) discussing asbestos issues. Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 11 of 13 possible. With the consent of Mr. Cerruti, no sampling for lead -based paint was performed. (Phase I Report, at 12.) Again, there is nothing in the record which demonstrates Mr. Cerruti has the proper qualifications to exempt the sampling for lead based paints from the Phase I Environmental Assessment. The failure to test for lead based paints when such contamination is possible constitutes a fair argument that there may be lead based paints in the existing structure. As with asbestos, lead -based paints require special handling, even during demolition. (8 CCR 1532.1.(a)(1)). Lead can cause severe health problems with symptoms such as: fatigue, head - aches, chest pains, nausea, vomiting, abnormal blood loss, loss of memory, infertility and impotence, loss of libido, and birth - defects. (8 CCR 1532.1, Appendix C(111).) Also as with asbestos, the failure to sample for lead -based paint may potentially endangered the lives of workers, neighbors and the public. The initial study failed to properly identify the potential for hazardous material on site, and therefore is inadequate. The evidence contained in the Phase I Report, in itself, constitutes substantial evidence to support a fair argument that lead -based paint may be a significant impact to the environment. Therefore, the MND cannot be certified. The Project Will Have a Significant Impact on Aesthetics and Coastal Resources by Destroying the Natural Bluff. The MND comes to the conclusion that regardless of where the City Council establishes the Predominant Line of Existing Development (PLOED), there will not be a significant impact because it will comply with the CLUP. (MND at 47.) However, compliance with a plan or regulation does not automatically establish that there is not a significant impact. (Communities for a Better Environment v. Califomia Resources Agency (2002) 103 Cal. App. 4th 98, 116.) Even if the City found that the Project complied with the PLOED, the City must still determine whether there is substantial evidence in the record that the Project may have a significant impact on aesthetics. Coastal bluffs are a prominent land form in Newport Beach. (CLUP Policy 4.4.3.) The natural bluffs are described in the CLUP as an "important part of the scenic and visual qualities of the coastal zone and to be protected as a resource of public importance." (CLUP Policy 4.4.3.) Even along Carnation Avenue and Ocean Boulevard, where there is significant bluff face development, the remaining natural bluffs are a public resource, and "development on the bluff face is controlled to minimize further alteration." (CLUP Policy 4.4.3.) Design and construction techniques are to be employed to minimize the alteration of the natural bluff to the maximum extent feasible. (CLUP Policy 4.4.3 -12.) Citizens' CEQAIMND Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 12 of 13 Obviously, the Coastal Commission believes a project design extending the present development envelope another 20 to 30 feet down the bluff face will adversely affect public views and significant coastal resources. (Coastal Commission Comments, May 14, 2007) The Coastal Commission staff members are considered experts on coastal resources and coastal views, and the Coastal Commission letter itself constitutes substantial evidence that the Project may have a significant impact on coastal resources, especially aesthetics. Unless appropriate mitigation is proposed, the Project must be remanded and an Environmental Impact Report produced. CONCLUSION There is Substantial Evidence to Support a Fair Argument the AERIE Project May have a Significant Impact on the Environment. There is a very low threshold for requiring the preparation of an EIR. All that is required to overcome a MND is a fair argument based on substantial evidence that some aspect of the Project may have a significant impact on the environment. Generally, the opinion of an expert automatically triggers the requirement to prepare an EIR. (CEQA Guidelines section 15064(g); Sierra Club v. County of Sonoma (1992) 6 Cal. App. 4th 1307, 1317.) In this case, despite the City's lack of willingness to provide access to technical documents related to the Project, CLG has nonetheless produced comments from two experts describing potential impacts that were not properly evaluated. A registered Civil Engineer described the potential impacts caused by shoring and bracing along the walls of the excavation and the impacts of loaded dump trucks and cement trucks on local residential streets. The Coastal Commission described the potential aesthetic impacts to significant coastal resources. The applicant's own experts, in the Phase I environmental report indicated that the existing building may have asbestos and lead - based paint. The evidence of the potential significant from noise comes from the City's own MND. The City Council's job in evaluating the MND is, not to determine whether it likes the Project, whether the Project will be beneficial to the community in the long run, or whether the majority of the residents prefer the proposed project over the existing development. The job of the City Council is to evaluate the legal sufficiency of the MND pursuant to CEQA, taking into consideration the regulations and cases interpreting it. The City must deny the Project if it finds that there is substantial evidence anywhere in the record to support a fair argument that the Project may have a significant impact on the environment. Based on the foregoing, substantial evidence exists, and the MND does not comply with CEQA. Citizens' CEOAlMND Comments RE: AERIE Project (PA 2065 -196) August 13, 2007 Page 13 of 13 The City must order the applicant to prepare a full EIR. Sincerely, COAST LAW GRO LLP A/� Marco A. Gonzalez Todd T. Cardiff CC: Karl Schwing, Orange County Area Supervisor, Coastal Commission James Campbell, Senior Planner, City of Newport Beach (jca mpbell @city. newport- beach. ca. us ) ATTACHMENTS: Leland K. Irvine and Roy L. Richards, ACOUSTICS AND NOISE CONTROL HANDBOOK FOR ARCHITECTS AND BUILDER (Excerpts) 2. Correspondence from Laguna Geosciences, Inc., August 10, 2007 Howard Shaw, PhD and Cheryl Jackson Hall, PhD, "Why Sound /Noise Carries So Well Over Water," available at hfti)://www.mnresponsiblerec.ora/r)revioussitel resources /sound.htm. (Attached hereto as Exhibit 3). 4. Correspondence from Kevin Wohlmut, August 10, 2007 5. CAL OSHA website, hfp:// www. dir .ca.aov /DOSH /ACRU /ACRU!nfo.htm, 6. Letter from Joe and Lisa Vallejo, August 3, concerning noise. Exhibit 1 ACOUSTICS AND NOISE CONTROL HANDBOOK FOR ARCHITECTS AND BUILDERS by Leland K. Irvine and Roy L. Richards KRIEGER PUBLISHING COMPANY MALABAR, FLORIDA 1998 qDt Original Edition 1998 Printed and Published by KRIEGER PUBLISHING COMPANY KRIEGER DRIVE MALABAR, FLORIDA 32950 Copyright ® 1998 by Leland iC Irvine and Roy L Richards All rights reserved. No part of this book may be reproduced in any form or by any mean& electronic or mechanical, including information storage and retrieval systems without permission in writing from the publisher.. No liability is assumed with respect to the use of the information contained herein. Printed in the United States of America. FROM A DECLARATION OF PRINCIPLES JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS: This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Library of Congress Cataloging -Ia- Publication Data frvinq Leland K.,1909- Acoustics and noise control handbook for architects and builders J by Leland K. Irvine and Roy L Richards. — Original ed. ti P M. Includes bibliographical references and index. ISBN 0- 89464922 -1 (hardcover: alk. paper) 1. Architectural acoustics 2. Noise control. 1. Richards, Roy L, 1928- . IL Title. NA2800.178. 1998 690'.2 —dc21 96 -47818 CIP 10 9 8 7 6 5 4 3 2 PAIR Sound Fundamentals These frequencies (and their relative amplitudes —see Sec- tion 1.2) determine the quality of the sound, and are dif- ferent for a violin, for example, compared to those for a horn. These unique frequency and amplitude patterns dis- tinguishes the sounds from the different musical instru- ments. 1.1.2 Noise In acoustics, the term noise has two meanings..In the area of sound perception, noise is considered to be unwanted sound. This aspect of noise is discussed in Section 1.8. The other definition of noise relates to the physical characteristics of broad -band (including many frequen- cies) sounds with specified frequency and amplitude dis- tributions. Within this definition, there are two commonly referred to "colors" of noise: 1. "White" noise, which has equal energy per cycle. Be- cause the number of cycles increases in each successive unit bandwidth (such as an octave), the amplitude of a white noise signal increases with frequency. 2. "Pink" noise, which has equal energy per unit band- width. The sound level remains constant with increas- ing frequency. There are other types of noise with special characteris- tics for applications such as sound masking and acoustical measurements. See Chapter 5, Section 5.3.2, Chapter 6, Section 6.3, and Appendix A.10. 1.2 Pressure — Intensity—Power A second important characteristic of sound is amplitude, X which relates to the magnitude of the pressure of the sound wave. TWO sound waves with the same frequency but with different amplitudes are shown in Figure 14_ This pressure can be measured, but the measurement does not give any information on the direction the sound is travel- ing. Another measure of amplitude is sound intensity, a measure of the energy per unit area contained in a sound wave, but traveling in a specified direction. A third 1'Rgure 1.4. Two sounds may have equal wavelengths (frequen- cies) but different amplitudes. -- 5 measure of amplitude is sound power, the rate at which a source produces acoustic energy. All three of these charac- teristics relate to the physical measures of sound ampli- tude. 1.2.1 Decibels — Levels The range of acoustic energy involved in human hearing is X extremely large —more than 1 to 10,000,000,000,000, from /X\ the quietest sound we can detect to a deafening roar. This extreme range of numbers becomes unmanageable in working everyday acoustical problems. . By taking the logarithm to the base 10 (log) of this en- ergy range, the numbers become more manageable. For ex- ample, the log of 1 is 0, while the log of 10,000,000,000,000 is 13, resulting in a range of only 13 units. However, acousticians went one step further. The hu- man ear is able to distinguish about 100 discrete steps across this entire range of sound amplitudes. If the loga- rithms are multiplied by 10, the range now extends from 0 to 130, and each step corresponds approximately to the smallest change in sound amplitude that the human ear can detect. This procedure forms the basis of the decibel scale. The symbol commonly used for decibel is dB. Zero decibels, approximating the threshold of hearing, corresponds to a sound pressure of 20 micropascals (or 2 X 1075 Newtons /sq m). Micxopascals is symbolized µ0a. Earlier publications used a pressure reference value of 2 X 1074 dynes /sq cm, which is the same as the reference pres- sure 20 µ0a. This exceedingly small pressure is referred to as the reference pressure. To illustrate just how sensitive the human ear is, the sound pressure represented by 0 dB corresponds to a weight of only 0.6 oz (17 grams), spread uniformly over a typical city block that is 300 ft (91.4 m) on a sidel Ten times the logarithm of the ratio of a spe- cific sound pressure to this reference pressure, quantity squared, results in the sound pressure level, Lp. Notice that the sound- pressure level is proportional to the square of the pressure, and that the level expression is dimensionless since it is based on a ratio. It is standard practice to add the word- level when the units are in decibels. Figure 1 -5 lists both the sound pressure and sound pressure level for a va- riety of common sound sources. The sound pressure level is calculated by the expression: Lp =10 log (p 120 tiPa)2 db = 20 log (p / 20 µ0a) db For example, assume the sound pressure p of a truck driving by is.200,000 µPa. Then LP = 20 log (200,000120) = 20 log (10,000) =80dB - Sound pressure levels below 20 dB would be considered 50 hp siren 0 100 I (, THRESHOLD OF Pneumatic chipper 0 5I (1 Hammering on plate @ 2I (0 Bailer fa Can - manufacturing Heavy truck @ go It Heavy street traffic 0 5 R (1' Insld Stenographic Average to Average auto r Conversation @ 3 I Average Quiet residentiat Average resit Very soft i Quiet whisper 0 5I (1 Anechalc Acoustics and Noise Control Handbook for Architects and Builders Sound Pressure, Sound Pressure micropascals: Level, Decibels (x10`), 266 1 ao 0 m) PANH 190 5 m) 20 120 steel Lo 6m) 110 Th story Su Plant RI 2 100 T m) Ve 10 5 m) e9 bus Lo roam 0.2 80 He ctory obile De 70 1 m) No Be 411ce 0.02 60 treat 50 ence fAi Ve 0.002 40 rasic Co 90 Go bm) 0.0002 20 Oe Le 10 roam ru u.uuuuz u Figure 1 -5. Sound pressure and s extremely quiet, while levels above 100 dB as extremely loud. Most people. living in urban areas spend their lives experiencing sound pressure levels in the range of about 30 to 90 dB, though some industrial noise and rock music can produce levels well above 100 dB. Levels above about b music (rock) meter *ay passing sting machine et 35 it (11 m) ry laud music (classical) hp outboard motor 50 It (15 m) Id music (classical) avy traffic 15I.50It (8 m-15 m) pertinent stare ley office skground music atmum street noise ry quiet radio at home aatry house let auditorium iel sound studio aves rustling RESHOLD OF HEARING ound pressure level of common sounds. 85 dB can cause permanent hearing loss under conditions of ongoing exposure (see Chapter 9, Section 9.1). A change in sound level of. one decibel is the smallest change that the human ear can detect, and even then only Bound Fundamentals under ideal listening conditions. A 3 dB change is readily detectable, and a 10 dB change will be judged as twice one -half) as loud. See Section 15.1. 7 The sound intensity on the surface of the sphere is 10`0 ttlsq cm, therefore the sound intens[ty level is ob[ained (or wa by: Decibels can also be used to express sound intensity levels and sound power levels. Over the years several dif- ferent reference quantities have been used for these calcu- lations, so it is mandatory to state the reference value for intensity and power decibel levels on charts and tables. The intensity of sound at the threshold of hearing is 1046 watt /sq cm, a value used as a reference intensity for com- puting sound intensity levels (L'1), determined in a manner similar to the calculation of sound pressure levels (Lp) as explained earlier. For the calculation of sound power levels (Lw), the reference acoustic power used is 10 -12 watt, though 10 -13 watt was used in earlier publications. As stated earlier, it is important to state the reference quan- tity for these decibel level calculations. Table 1 -2 lists the sound power and sound power level for a number of repre- sentative sources. It is interesting to note that when a sound power source of 10 -12 wall is located at the center of a sphere whose -area is one sq m, the resulting intensity on the surface of the sphere is 10 -16 watt /sq cm; both are reference quanti- ties as explained earlier. For example, if the sound power of a source is one watt, the sound power level is obtained by Lw =10log (1 / 10 -12) dB Re: 10 -12 watt =120 dB Re: 1042 watt TABLE 1 -2. Typical Sound Power and Sound Power Level* Approximate Power Output Decibels re: Source Watts, w 10 -12w Saturn Rocket le 200 Tbrbojet engine with afterburner. 105 170 Jet aircraft at takeoff, four engines. 104 160 74rboprop at takeoff -- - 1000 150 Propeller aircraft at takeoff, four engines. 100 140 Large pipe organ 10 130 Small aircraft engine 1 120 Blaring radio 0.1 110 Automobile at highway speed 0.01 100 Voice, shouting 0.001 90. Garbage disposal unit le 80 Voice, conversation level 10 -5 70 Electronic equipment ventilation fan le 60 Office air diffuser 10 -7 50 Small electric clock. le 40 Voice, soft whisper le 36 Rustling leaves 16-10 20 Human breath - 10 -n1. 10 Threshold of hearing 10 12 0 *Reprinted by permission of the American Society of Healing, Refrig- erating and Air - Conditioning Engineers, Atlanta, Georgia, from the. 1993 A$HRAE Xandbook—Fundamentah - - Li =10 log (10-4 /10 16 ) dB Re: 10 16 watt /sq cm =120 dB Re: 10 -16 watt /sq cin 1.2.2 Adding Decibels Since any level expressed in decibels is based on the loga- r'lthm of a ratio, it its not possible to add levels arithmeti- cally. If two trucks each produce a sound pressure level of 80 dB, their combined Ievel is 83 dB— definitely not 160 M Decibels are added by converting the ]eve) back to the original energy ratio. (Note that these ratios must always be proportional to the energy content of the quantity be- ing expressed.) This Is accomplished by taking the antilog of each level, summing the antilogs, and reconverting to a level, as follows:- - Lc =10 log (101"Ilo +10,10 +...101"110)dB where Lc = the combined level, dB Ln = individual source level, dB For example, the resultant level by adding two sounds of 40 dB each is determined as follows: Lc= 10 log (104 O +1040t1a)dB =10 log (10,000 +10,000) dB =10 log (20,000) dB = 43 dB The curve in Figure 1 -6 may be used for combining two levels. If there are more than two levels to be added, a level for the first two has to be calculated, and that result then added to the next level, and so forth. Figure 14L Chart for adding decibel levels. Sound Fundamentals under ideal listening conditions. A 3 dB change is readily detectable, and a 10 dB change will be judged as twice one -half) as loud. See Section 1.5.1. 7 The sound intensity . on the surface of the sphere is 10-4 att /sq cm, therefore the sound intensity level is obtained ( 0 w by: Decibels can also be used to express sound intensity levels and sound power levels. Over the years several dif- ferent reference quantities have been used for these calcu- lations, so it is mandatory to state the reference value for intensity and power decibel levels on charts and tables. The intensity of sound at the threshold of hearing is 10 -16 watt /sq cm, a value used as a reference intensity for com- puting sound intensity levels (Li), determined in a manner similar to the calculation of sound pressure levels (Lp) as explained earlier. For the calculation of sound power levels (Lw), the reference acoustic power used is 10 -r2 watt, though 10-13 watt was used in earlier publications. As stated earlier, it is important to state the reference quan- tity for these decibel level calculations. Table 1 -2 lists the sound power and sound power level for a number of repre- sentative sources. It is interesting to note that when a sound power source of 10 -12 watt is located at the center of a sphere whose area is one sq m, the resulting intensity on the surface of the sphere is 10 -16 watt /sq cm; both are reference quanti- ties as explained earlier. For example, if the sound power of a source is one watt, the sound power level is obtained by - Lw =10 log (1110 -12 ) dB Re: 10 -12 watt =120 dB Re: 10 -12 watt TABLE 1 -2. Typical Sound Power and Sound Power Level' Approximate Power Output Decibels re: Source Watts, w 10 -12w Saturn Rocket IV 200 Turbojet engine with afterburner. to, 170 Jet aircraft at takeoff, four engines. 10' 160 Tbrboprop al takeoff 1000 150 Propeller aircraft at takeoff, four engines. 100 140 Large pipe organ 10 130 Small aircraft engine - 1 120 Blaring radio 0.1 110 Automobile at highway speed 0.01 100 Voice, shouting - 0.001 90 Garbage disposal unit IV 80 Voice, conversation level IV 70 Electronic equipment ventilation fan le 60 Office air diffuser 10 -1 50 - Small electric clock le 40 Voice, soft whisper le � 30 Rustling leaves 10 -10 20 Human breath 10 -11 10 Threshold of hearing 10-13 0 •Reprinted by mmission of the American Society of Heating, Refrig- erating and Air - Conditioning Engineers, Atlanta, Georgia, from the 1993 ASARAE Handbook—Fundamentals ' Li =10 log (10' 110-") dB Re: 10 -I6 watt /sq cm =120 dB Re: 10- 16watt/sq cm 1.2.2 Adding Decibels Since any level expressed in decibels is based on the loga- rithm of a ratio, it is not possible to add levels arithmeti- cally. If two trucks each produce a sound pressure level of 80 dB, their combined level is 83 dB— definitely not 160 dB! Decibels are added by converting. the level back to the original energy ratio. (Note that these ratios must always be proportional to the energy content of the quantity be- ing expressed.) This is accomplished by taking the antilog of each level, summing the antilogs, and reconverting to a level, as follows: Lc= 10log(101in + 1012!10 +...10Lana)dB where Lc = the combined level, dB Ln = individual source level, dB For example, the resultant level by adding two sounds of 40 dB each is determined as follows: Lc =10 log (10 40110 +1040tt0) dB =10 log (10,000 +10,000) dB =10 log (20,000) dB =43 dB The curve in Figure 1-6 may be used for combining two levels. If there are more than two levels to be added, a level for the first two has to be calculated, and that result then added to the next level, and so forth. Figure 1.6. Chart for adding decibel levels. Acoustics and Noise Control Handbook for Architects and Builders For example, if the levels 40, 40. and 43 dB are to be added, 40 + 40 = 43, and 43 + 43 46 dB. That is, increas- ing the acoustic energy by two times equals a 3 dB in- crease, and by four times, a 6 d13 increase. Decibel subtraction is accomplished in the same man- ner, except the antilogs are subtracted instead of added. One application of the subtraction of decibels involves meas- uring a noise source in the presence of background noise. The level of the noise source is obtained by subtracting the background noise from the total noise, as follows: Ls = 10 log (1 O t'` /to —I OL"o) dB where Ls =source level, dB Lc = combined level, dB Lb = background level, dB For example, the background noise level in a shop is 40 dB and the total level with the compressor operating is 45 dB. The level of the compressor alone is determined by LC= 10 log( 1041nO _ I0"') dB = 10 log (31,623 — 10,000) dB =10 log (21,623) dB = 43.3 dB 1.3 Temporal How a sound varies with time can be important in how it will affect the listener. Tike time - varying —or temporal — characteristics of sound can be classified into the general categories of steady, intermittent and impulsive. There are special sound descriptors that are used to help define these characteristics. 1.3.1 Steady — Intermittent — Impulsive The level of a steady sound changes very little with time. Refer to Figure 1 -7. Examples would be the noise from a fan or blower, or a waterfall. The noise produced by heavy traffic on a freeway can be fairly steady, particularly at dis- tances of several hundred feet. People are usually able to tolerate steady sounds as they are less likely to attract at- tention, unless the sound is so loud as to cause interfer- ence with some activity. Examples of intermittent sounds are trains, aircraft fly- overs, and light to moderate traffic with lulls between ve- hicles or groups of vehicles. Many machines, industrial and construction operations produce intermittent sound. Mu- sic and speech are examples of sounds which are intermit- tently loud and quiet. Such sounds are more likely to be intrusive than steady sounds because the interference they cause keeps repeating. Impulsive sounds are most intrusive because they occur without warning and may cause a startle reaction. Ex- Figure 1.7. Graphical representations for steady, intermittent and impulsive sounds. amples are gunshots, fire crackers and automotive back- fires. Some industrial and construction operations produce impulsive sounds, such as a punch press, hammering and pile driving. Some impulsive noises occur so rapidly that they may be treated as a combination of intermittent and steady, such as a jack hammer, riveting and chipping. 1.3.2 Ley— Percentiles— L.— L,l„ The temporal characteristics of a sound may be defined by selecting an appropriate sound measure or descriptor. The most commonly used descriptors currently in use are de- fined below: - L.. Equivalent Energy Level. This is the sound level which, if held constant for a specified time period, yields the same total energy-as contained in the actual sound. The Leq is probably the most useful single number for de- scribing the level of sound, and is used extensively for sound specification purposes. It is affected most by the highest. sound levels occurring during the time period, since they contain the most energy, hence it is an appropri- ate descriptor for rating noise impacts. L,,,,,,. This is the maximum level that occurs during a specified time period. It is usually of very short duration, possibly caused by an impulsive sound. It is particularly useful for evaluating sleep interference. L, This is the minimum level that occurs during a speci- fied time period. It is useful in identifying the background sound level in the absence of intermittent higher sound levels. Exhibit 2 Laguna Geoscienoes, litc. Geotechnical and Emlronmedal Consulting Sendees August 10, 2007 Mr. Todd Cardiff, Esq. Coast Law Group, LLP 169 Saxony.Road, Suite 204 Encinitas, CA 92024 Subject: Preliminary Evaluation of Conceptual Grading Plan Review Report Proposed Condominium Project 201 -205 and 207 Carnation Avenue Corona Del Mar, California Reference: Conceptual Grading Plan Review Report, Condominium Project, 201 -205 and 207 Carnation Avenue, Corona Del Mar, California, dated August 5, 2005 by Neblett & Associates. Dear Mr. Cardiff: At your request, Laguna Geosciences, Inc. (LGI) has conducted a preliminary evaluation of the above referenced report by Neblett & Associates (NA). The intent of our evaluation was to identify geotechnical engineering and geology conditions, recommendations or related issues that could affect the planning, permitting and approval process for the proposed condominium project located at 201 -205 and 207 Carnation Avenue, Corona Del Mar, California. The proposed project consists constructing a new nine unit condominium building with underground levels. The project will require demolition of an existing single family residence and a apattment building at the site. The proposed project will involve considerable excavation in the coastal bluff area of Corona Del Mar, and the proposed improvements will extend from the top of the bluff down to a low elevation of approximately 20 feet above sea level. Based on our review of the referenced report and our experience with similar projects, LGI has identified the following geotechnical engineering and geologic related issues that we believe should be considered by the project owner and governing jurisdictions in the planning, design and permitting process of the project: 1. Encroachment of Shoring Elements into Adjacent Properties — The proposed project will require substantial permanent and temporary shoring of the excavation, with retained earth heights of up to 50 feet. NA recommends that a 31642 S. Cowl Hwy., Ste. 100, Laguna Beach, CA 92651 Phone: (949) 499 -7874 Fax (9491499 -7430 August 10, 2007 Mr. Todd Cardiff, Esq. Page 2 soldier pile and lagging type shoring system he utilized, and that steel and concrete ground anchors called tie -backs be drilled and installed in the earth behind these walls. LGI has not reviewed a showing plan, but based on descriptions in the referenced report, it appears that the recommended tie backs for the soldier pile and lagging shoring system would need to be constructed into the street easement at Carnation Avenue and the adjacent property at 215 Carnation Avenue. If this is the case, it should be verified that the construction of these tie -backs on adjacent properties has been considered in the planning and permitting of the proposed project and that all required agreements between property owners are in effect. 2. Noise and Vibration Associated with Excavation of Bedrock — The proposed project involves considerable excavation in the coastal bluff area of Corona Del Mar, including removal of more than 40 vertical feet of locally.hard to very hard sandstone bedrock of the Monterey Formation. The referenced report recommends that this bedrock be excavated with hoe -ram or rock chisel equipment. This type of excavation can produce significant noise and vibration, adversely affecting nearby properties and neighborhoods. It should be verified that this noise and vibration has been quantified and considered in the planning and permitting process for the proposed project. 3. Truck Traffic Associated with Excavation —The proposed project will involve considerable truck traffic to accomplish the. proposed excavation. It should be verified that the noise, congestion and air quality effects of this truck traffic have been quantified and considered in the planning and permitting process for the proposed project. We trust that this letter provides you with the information you need at this time. Please do not hesitate to contact us if you have any questions or if we can he of further service. Please note that this evaluation is very limited and preliminary in nature and is based solely on our review of the referenced document and our experience. No investigation at the site has been performed. Professional judgments presented in this report are based on evaluations of the information available and LGI's general experience in the field of geotechnical engineering. LGI does not guarantee the interpretations made, only that the engineering work and judgment rendered meet the standard of care of the geotechnical profession at this time. Sincerely, Laguna Ge ciences Matthew F. Hunter, Principal Engineer ty 6" � E1GieNw f,QtpFsi�n�r p© N EER Na *' Exhibit 3 by Sound/Noise Carries So Well Over Water Page 1 of 3 Why Sound /Noise Carries So Well Over Water Have you ever noticed how well sound carries over open water? That's a problem for those who like to enjoy a quiet day on a lake. Experience suggests that sound, like light, travels (more or less) in straight lines. However, to the contrary, sound actually tends to curve downwards over a lake's surface. (See the bottom illustration in "Refraction /Snell's Law ".) Sound travelling along straight lines would disperse quickly into the space above the lake. Instead, sound that "should" rise up and be lost, typically curves back down to the lake /ground level. Therefore, it sounds louder than it "should. ". This is a well -known and easily demonstrated observation, measurable out there on real lakes. See, for example, "Powerboat Sound Level Engineering Report ", by the National Marine Manufacturers Association, 10/16/87. Air Temperature and the Speed of Sound In general, air varies in temperature from the surface of a lake (or the ground) on upwards. On a typical sunny summer day, the air is coldest near the lake's surface. The air temperature increases as you rise above the lake. This is because the lake water is colder than the air; the air heats up quickly in the day's sunshine. Also, it's because of the cooling that takes place with water evaporation at the lake surface. This air temperature pattern is called a "thermal inversion ". Consider a source of sound on a lake, say a jet ski noisily "whomping" along. A thermal inversion causes the sound generated by the jet ski to stay near the lake's surface. According to, "Fermat's Principle of Least Time" (or an acoustics /optics version called "Snell's Law of Refraction "), this sound curves back down towards the lake surface, and does not disperse much into the space above. Other explanatory factors contributing to sound's all- too -good transmission over water may include reflection off the lake surface or underwater conduction of sound. Whatever the explanation, the most important fact is that experimental measurements demonstrate it to be true. The speed of sound is not constant.; it travels faster in warmer air than in cooler air. (The speed is roughly proportional to the square root of the absolute air temperature). If a.bit of sound "wanted" to travel from one spot on a.lake (say, the jet.ski) to another spot on the lake (say, a frustrated would -be enjoyer of a quiet lake), it could travel on a straight line along the lake surface. However, this sound could get there faster by rising up to a higher level where the air is warmer (where it could travel http: / /www.mnresponsiblerec .org/previoussite /resources /sound.htm 8/l/2007 by Sound/Noise Carries So Well Over Water Page 2 of 3 faster), then travel parallel to the lake surface but at that higher level (and therefore faster), and finally descend back to the lake surface and the would -be enjoyer. Even though this roundabout route would be a bit longer in distance, it would take less time, due to the faster speed of sound at the higher level. The Principle of Least Time As bizarre as it seems, sound (and similarly, light) travels, not along straight lines, but along whatever path gets it there the fastest, even a curved path. This is called " Fermat's Principle of Least Time." It states that sound always takes the path that gets it there fastest, that is, in the "least time." This seems very strange; one should wonder, "How does sound KNOW how to do this? How does sound KNOW what lies ahead of it along different paths ?" Well, somehow it does, and much deeper physics explains why ( "stationary phase "), but we'd better not go there now. Consider this analogy. A person wants to wade in the water near 'a beach, from one place to another, at both of which the water is waist -deep. (Assume that the two places are relatively far apart from each other.).He could travel in a straight line (through the waist -deep water), but he could get there faster if he contoured into shallower water (where he could travel much faster) for most of his journey. However, this requires some planning and understanding on the part of the wader, and it's really not clear how a bit of sound can do this sort of planning. But somehow, it can and does. (Physics just gets weirder and weirder, the deeper you go. In modern quantum mechanics, particles often behave "as if they were conscious ", but of course, they're not ... we think.) Sound (and also Light) in the Desert The opposite situation holds in a desert. The air is hottest near the ground, and is cooler higher up. Thus sound travels faster near the ground, and slower higher up The Principle of Least Time predicts that sound will curve upwards in a desert. Consequently, sound dies away rapidly with distance in a hot (desert) environment. This explains why it's very quiet in a desert; the sound curves upwards into space, and is not heard by the observer on the ground. Light also obeys Fermat's Principle of Least Time; and light also travels faster in hot air than in cold air. (This is for a different reason, but that's not important here.) So, light curves upwards in a desert, or over a hot dry highway, giving rise to the well -known "mirage" phenomenon. (See the top illustration in "Refraction /Snell's Law ".) http: / /www.mnresponsiblerec .org/previoussite /resources /sound.htm 8/1/2007 by Sound/Noise Carries So Well Over Water Page 3 of 3 For further evidence that light doesn't necessarily travel in a straight line, look over a bonfire, and notice the little visual wiggles in what you see on the other side. This is due to small pockets of hot air rising from the fire, mixing chaotically with the colder air. Or notice the "bend" that light seems to take when it moves across an air -to -glass boundary; light travels much faster in air than in glass. Lenses (and eyeglasses) work by this principle. Similarly, light travels much faster in air than in water. Next time you fill a transparent tumbler with your favorite beverage, pause for a moment to observe the Principle of Least Time in action. Cheers! ---------------------- - - - - -- -end of piece Howard Shaw, Ph. D. Cheryl Jackson Hall, Ph. D, P.O. Box 1275 Gunnison, CO 81230 -1275 Phone: (970) 641 -1440 E -mail: hallshaw @gunnison.com or HShaw@alum.mit.edu http:// www. mnresponsiblerec ;org/previoussite /resources /sound.htin 8/1/2007 Exhibit 4 124 N. Bonnie Brae St. Los Angeles, CA 90026 August 10, 2007 Coast Law Group Attn: Todd Cardiff, Esq. 169 Saxony Road, Suite 204 Encinitas, CA 92024 Re: Aerie Project [PA 2005 -196], 201 -205 & 207 Carnation Avenue, & 101 Bayside Place Dear Todd: You have retained me to review the Mitigated Negative Declaration (MND) for the Aerie Project. I have reviewed all documents you have provided me, including the Conceptual Grading Plan and MND. "The Aerie" development in Corona Del Mar is an ambitious work of Civil and Coastal Engineering. With any such project there is a concomitant risk of overreach and unsatisfactory outcome. Since sufficient technical discussion of several areas of risk is not documented in the Mitigated Negative Declaration (MND), it does not appear that a MND is justified at this time. One risk area of note is the excavation and shoring requirement. This relates to Determination VI of the MND. The project presents several circumstances which in combination are unusual in Civil Engineering practice. OSHA and other agencies consider a fifty -foot excavation, such as the one here (foundation at elevation +20' MSL to road surface at +70' MSL), to be "deep ", and therefore a shoring plan is necessary, as discussed in the Conceptual Grading Plan Review Report (Section 83) and elsewhere. However, in layman's terms, the purpose of a shoring system is to provide a resistive outward force, against the soil pressure from outside the project pushing in. Normally, in inland projects, there is a substantial outside body of soil pushing inward into the excavation. But in this case, situated on a coastal bluff, in some areas there will only be a thin vertical body of sandstone substrate surrounding the excavation. Also, as rioted in the Bluff Face Development Study, some nearby properties have been constructed by excavation into the bluff, again leaving a thin vertical body of substrate between the proposed excavation and an airspace. The fact that the excavation is proposed very close to the setback lines leaves little margin for error. If the performance of the shoring system, including angled tiebacks, is not tightly. controlled — for example, during construction of the system, or during a seismic event (earthquake) — the resistive outward force could push through a thin vertical body of substrate, causing a bluff or soil failure. If a soil failure affects nearby excavated buildings, very expensive underground structural damage could result. If a bluff failure 124 N. Bonnie Brae St. Los Angeles, CA 90026 August 10, 2007 Coast Law Group Attn: Todd Cardiff, Esq. 169 Saxony Road, Suite 204 Encinitas, CA 92024 Re: Aerie Project [PA 2005 -1961, 201 -205 & 207 Carnation Avenue, & 101 Bayside Place Dear Todd: You have retained me to review the Mitigated Negative Declaration (MND) for the Aerie Project. I have reviewed all documents you have provided me, including the Conceptual Grading Plan and MND. "The Aerie" development in Corona Del Mar is an ambitious work bf Civil and Coastal Engineering. With any such project there is a concomitant risk of oven-each and unsatisfactory outcome. Since sufficient technical discussion of several areas of risk is . not documented in the Mitigated Negative Declaration (MND), it does not appear that a MND is justified at this time. One risk area of note is the excavation and shoring requirement. This relates to Determination VI of the MND. The project presents several circumstances which in combination are unusual in Civil Engineering practice. OSHA and other agencies consider a fifty-foot excavation, such as the one here (foundation at elevation +20' MSL to road surface at ±70' MSL), to be "deep ", and therefore a shoring plan is necessary, as discussed in the Conceptual Grading Plan Review Report (Section $.3) and elsewhere. However, in layman's terms, the purpose of a shoring system is to provide a resistive outward force, against the soil pressure from outside the project pushing in. Normally, in inland projects, there is a substantial outside body of soil pushing inward into the excavation. But in this case, situated on a coastal bluff, in some areas there will only be a thin vertical body of sandstone substrate surrounding the excavation. Also, as noted in the Bluff Face Development Study, some nearby properties have been constructed by excavation into the bluff, again leaving a thin vertical body of substrate between the proposed excavation and an airspace. The fact that the excavation is proposed very close to the setback fines leaves little margin for error. If the perfornumce of the shoring system, including angled tiebacks, is not tightly controlled — for example, during construction of the system, or during a seismic event (earthquake) — the resistive outward force could push through a thin vertical body of substrate, causing a bluff or soil failure. If a soil failure affects nearby excavated buildings, very expensive underground structural damage could result. If a bluff failure occurs, highly valuable public and/or private beachfrom property could be rendered unusable. The combination of circumstances — deep excavation, nearby airspaces, and highly valuable property — is unusual in Civil Engineering practice. Techniques exist to control this situation, but the MND seems to treat the shoring requirement as a routine (but complex) formality to be addressed after the MND, only during permitting right before construction. A MND should not gloss over this unusual situation. If I myself were sitting on the Newport Beach City Council, I would be very interested in a survey of nationwide past projects of similar unusual circumstances, for comparison with the proposed techniques. Said survey would include not only successful projects (techniques to be emulated) but also failures (techniques to be avoided). Construction phasing and staging issues may present significant impacts. This could affect Determination XV, and others, of the MND. Large areas of material stockpiling may be necessary in order to meet the optimistic excavation schedule of 2700 dump trucks in 6 working weeks — to have quantities of material ready so that nearly 100 dump trucks can visit this residential site each day without a slowdown. Since the development plans call for excavation on nearly the entire lot, very close to the property lines, it is not clear that staging requirements by the construction contractor would avoid excessive use of public property for staging or stockpiling, during any or all phases of the project. The section on traffic mitigation appears insufficient. This could affect Determination XV, and others, of the MND. Loaded (12 cu.yd.) dump trucks of hauling sandstone will cause a bearing pressure of 16,000 lbs per axle (or more) on the site's residential roads, such as Carnation Avenue and Ocean Boulevard, which were probably only designed for primary use by passenger cars with a load of 2,000 lbs per axle. (Tbe original street design was probably too old to be designed with the more recent 1993 AASHTO Flexible Pavement ESAL's, but even if so, the point is effectively the same.) These two roads in particular are evidently distressed already, as can be seen from the many cracks and repairs visible on site or even from aerial photos (latest MND p.6, or Google Earth). The passage of up to 2700 dump trucks (latest MND p.52) will age the neighborhood roads rapidly, resulting in expensive public road repairs or replacements. Of course, damage to the existing roads by the dump trucks could interfere with the already- optimistic excavation schedule of 6 working weeks for offhaul, lengthening the duration of various unwanted impacts on the neighborhood. Also in the area of traffic impacts, the finished project will employ freight elevators to lower residents' cars 50 feet from the street level to underground parking areas. (e g., Stormwater Pollution Prevention Plan, Section 2.3) Again this is unusual in Civil Engineering practice for residential areas. I would be interested in seeing a survey of post - construction performance of residential systems of this type; during heavy traffic hours, a queue of residents waiting for the car elevator might cause long -term unmitigated impacts to air quality, traffic and parking. Although the project claims to create a net three public street parking spaces (Architect's "Aerie Project Overview" section V. part C.), this may not be enough to compensate. Considering guests and employees such as caterers or pool/spa staff for the 9 separate spas, the Air Quality Analysis conservatively expects 8 ADT's (Average Daily Trips). This may frequently result in 8 vehicles queuing for parking during peak traffic hours. The queue might block traffic on the public streets since the driveway is short. Elevator design is not discussed in the MND, but assuming six minutes for two freight elevators to load and move two cars 50 vertical feet and then return, queue conditions may persist for almost 20 minutes on an average day, during peak hours, for the life of the project. The idling cars could cause a temporary air pollution "hot spot" on a regular basis. If drivers lose patience with this queue, they will park on the public street, negating the net creation of public parking. No such analysis of the situation is presented in the NMD. Dust control may present a significant impact. This could affect Determination III, and others, of the MND. Atypical dust control. plan involves the wetting of stockpiled excavation spoils, as well as barriers to dust escaping via wind or drainage (e.g., tarps and silt fences, other Best Management Practices as noted in the Stormwater Pollution Prevention Plan). But in this project, sandstone substrate is'being ripped and excavated which must then be raised, in later phases, as high as 50 feet above the excavation surface (foundation at elevation +20' MSL to road surface at +70' MSL). Much opportunity exists for dust to arise from the tailings during their vertical journey in breezy coastal weather conditions. The work area extends nearly to the setback lines, leaving little room for separating the stockpiles from the excavation. Techniques exist to control this situation, but the MND (the Stormwater and Air Quality Analyses) cite the method of a "default" calculation of dust emissions, to be controlled with Best Available Management Practices. This unusual situation may not be suited for the "default" method, and some of the typical Best Management Practices may not apply to the project. Wetting the tailings, for example, which are being transported vertically 50 feet above the excavation surface . could produce slippery and hazardous work conditions below. It may not, therefore, be in the interests of the Newport Beach City Council to accept the NMD without more specific presentation of dust control methods. Thank you for the opportunity to comment on this interesting Civil Engineering project. Sincerely, 0. 8 Kevin A. Wohhnut, P.E. RCE # (California) C -052938 `�q� CIV11 Kevin A. Wohtmut, P.E. 124 N. Bonnie Brae, Los Angeles, CA 90026 RCE # (Callfomiaf: C-0S2938 EXPERIENCE: Sept. 2005 to April 2007: Volunteer for U.S. Peace Corps, Mexico Program. Work Assignment: COMIMSA, Saltillo, Coahuila, as a Civil Engineer. Projects include industrial risk assessment, environmental compliance, and design of innovative soil treatment/decontamination projects. Training in Spanish as well as Mexican history, culture, and business procedures. Mar. 2000 - Oct. 2003: Coastal Engineer at Moffatt & Nichol Engineers, San Diego, CA. Performed Civil and Coastal Engineering design, drafting, numerical modeling, cost estimating, data analysis and data presentation for a variety of engineering projects, mostly in California, ranging from Richmond to San Diego. Feb. 1999 - Mar. 2000: Freelance as an Engineering Technician for several firn s in the San Diego area, including Helix Environmental Consultants and Racal- Pelagos (ocean surveyors). Mar. 1998 - Feb. 1999: Staff Engineer at Moffatt & Nichol Engineers, Long Beach, CA. (Duties similar to the M &N San Diego job above.) 1997 -1998: Chief Engineer at Submersible Computer Systems, Inc., Montecito CA. As part-owner of a startup computer company, designed cases for waterproof and automobile- mounted mobile.. 1994 -1997: Civil Engineer at Moffatt & Nichol Engineers, San Francisco, CA. (Duties differed from Long Beach assignment) Designed, drafted, and performed project management duties for a variety of coastal engineering projects. 1992 -1994: Research Assistant for MMTC -OBD (Marine Minerals Technology Center - Ocean Basins Division), Honolulu, Hawaii, while attending the Masters' program for Coastal Engineering at UH. 1989 -1992: Assistant Engineer at A. L. Bliss Civil Engineering, Inc., Palo Alto, California. Executed a variety of tasks for public and private sector clients. 1988: Intern at Mainz, Germany, construction site for DeBauSie (Deutsche Ban- and Siedlungs- gesellschaft, GMbH), West Germany's largest construction firm. 1986 -1989: CADVANCE technician for Facilities Project Management at Stanford University. DEGREES: Highest Level Completed — Master of Science in Ocean (Coastal) Engineering from University of Hawaii at Manoa,1993. Bachelor of Science in Civil Engineering from UC Berkeley, 1989. Exhibit 5 Asbestos Information California Home DIR home page POSH home page Public safely page Whaf new et DOSH Contact us Cal/OSHA enforcement Emolover assistance A- Zindex InvoicelPenalty. payment options How to: • File a health and safety_ coraglai it • Develop an Inlury and Illness . prevention Program • Develop a piuMership with Cal/Osha Obtain • Anomcostpenalty free consultation ` • Educational. Products • A permit from Asbestosinfonnation CaI/OSHA Publications Division of Occupational Safety and Health (DOSH) Protects workers and the public from safety hazards through its CaVOSHA, elevator, amusement ride, aerial tramway, ski lift and pressure vessel programs, and provides consultative assistance to employers. Asbestos Information. ACRU HomePaoe Page I of 4 Friday,i Ci My CA (' Advanc Feature • Comprehensiv & health trainh insfruc on re p • Homeland. sec 1. What are the specific occupational regulations for asbestos construction work? • Asbestos4n- Construction -Tdle 8 of the California Code of Regulations (6 CCR) 1529 at www.dir.ca.00vfMe81sb4a4_html. See 8 CCR 5208 for general industry and 8 CCR 8358 for at w ww, dir .ca.gov /samples/searchlauerv:htm and search for these codes. • Federal OSHA asbestos compliance directives . and interpretations- Go to www.osha- sle.gov/S LTC /asbestosrindex.biml#Comblianos • Cal/OSHA asbestos contractor registration- Go to Asbestos Registration. • Cal/OSHA asbestos consultant certification. See 8 CCR 341.15, www.dir.ca.eov/tigeB /ch3 2sb2a2 6.html 1529(q) and the Business and Professions Code 7189.7 at www.lesliofosa.govLaLaLaw.html • Cal/OSHA asbestos training provider certification - See 8 CCR 341.16 at www.dir.ce.govltifle8 /ch3 2sb2a2 7.htm1 and 1529 (k)(B) 2.. Where is asbestos found? Asbestos is still present in many structures and is still used In some industrial processes and comme products. However some asbestos - containing products and materials have been banned. Infomeatio asbestos materials can be found at the website of the U.S. Environmental Protection Agency (EPA). Advisory committees Note: The California Business & Professions Code 7180(b) allows Contractors with AHERAcertifiec Proposed. regulations inspector training to take up to 12 samples in residential dwellings for bid preparation, employee hea or contract completion purposes. Be aware only a Cal /OSHA- Cerifed Asbestos Consultant (see bet Polley and procedures for interpret the results and provide a full range of asbestos consulting services. enforcement Young. workers 3. How can those involved in planning asbestos removal work obtain help? Title 8 regulations Anyone thinking about removing asbestos may want to contact a CaVOSHA- Certified Asbestos Con: Federal OSHA Cal/ OSHA - Certified Asbestos Consultant (CAC) can provide asbestos consultinglas defined by the Professions Code, 7160-7189.7, and triggered by the same size and concentration triggers as for re contractors). These services include building inspection, abatement project design, contract adminis supervision of site surveillance technicians, sample collection, preparation of asbestos management clearance air monitoring. Note: The Business and Professions Code sections 7180(b)(3) and 7187 prohibit • Contractors from providing professional health and safety services or performing any asbest assessment, including clearance air monitoring http:// www. dit .ca.gov/DOSFVACRU /ACRUinfo.htm 8/10/2007 Asbestos Information Page 2 of 4 • Consultants and site surveillance technicians from having any financial or proprietary interes asbestos abatement contractor hired for the same project For general information, you can call the nearest Cai/OSHA Consultation Office or the Asbestos Cor Registration and Consultant Certification Units of CalfOSHA. See "Resources" for contact informatio 4. How does one choose an asbestos contractor? CaVOSHA does not recommend specific asbestos removal contractors. For general guidance on chi contractor, seethe Contractor's State License Board 10 Tips and other guides at www.cslb.ca.aov A Certified Asbestos Consultant may help this process. In choosing a contractor, you may want to con contractor's experience, work plan, proof of training and other documentation, and compliance Nstei Cal/OSHA and U.S. EPA compliance history database www.osha.9ov19sb%ats/. Note: the U.S. EPA not include all violations issued by local air quality districts. You can also contact them directly. 5. What if there I a problem at an asbestos workslte? The Asbestos Contractor Registration Unit does not perform on- site - inspections in response to oomf concerning specific worksites. Job- specittc complaints are best dealt with as follows: • Unsafe or unhealthy working conditions - Cell the nearest CaVOSHA District Enforcement O your local phone directory under State Government, Department of Industrial Relations, Divi Occupational Safety and Health or got to htto: //www.dir.ca go mosNDisMctOtiima htm. • Environmental concerns- Contact the local air quality district, the State Air Resources Board EPA, Region 9. Look in your local phone directory under the name of your District or go to 9 Resources Board web site at wAvw.arb.ca.gov/caor&atmster.htm and hit the "Contact Us" bu "Local Air District Contact List." The State Air Resources Board has a complaint hotline at 1- Call the U.S. EPA at (415) 744 -1089 for asbestos questions. • Contract disputes or licensing violations - Contact the Contractors State License Board at 14 For information on their process, go to www.cslb.ca.nov • Wage and hours of work issues- Contact the nearest local office of the Division of Labor Ste Enforcement by looking in your phone book under "State Government, Department of Indust If you do call us directly, we will discuss your concerns. The ACRU does review the results of invest CaUOSHA Enforcement and other agencies. We may take separate administrative action, particularl display a pattern of non - compliance with asbestos and related laws and regulations. S. What are some Informational obligations of building owners, contractors and other employ The following is a summary of the major asbestos notification and Information requirements in 6 CCI 341.6 - 341.14 and the California Health 8. Safety Code. See the codes for the complete requirement Employers also have additional informational duties towards their employees under 8 CCR 1529, 15 Injury and Illness Prevention Program requirements for construction and general industry), 3204 (Ac Employee Exposure and Medical Records), as well as other Title 8 regulations. Employers performing work subject to 8 OCR 1629: • If less than 100 sq.fL of asbestos - containing construction materials and therefore not subjec asbestos registration rules, file a Report of Use with the Chief of DOSH (CaVOSHA) • Determine the location and quantity of asbestos - containing material (ACM) and/or presumes based on the criteria in 1529(k)(1); (ref. 1529(k)(3)(A)) • If at a temporary worksits, notify the nearest CaVOSHA District Enforcement Office 24 hours (ref. 1529(r) & 5203) • Any incident resulting an employee exposure in excess of the PEL and/or excursion limit by writing to the Chief of DOSH within 15 days. (ref. 1529(r) & 5203) • Through meetings or other methods, inform employees, building owner and other employers work, about the location and quantity of ACM and/or PACM, the nature of their work require pertaining to regulated areas, as well as the means to prevent asbestos air contamination; a (1) & (k)(3)(6)) . • Post a warning sign outside the regulated area that is understandable to employees working http:l lwww. dir .ca.gov/DOSIVACRU /ACRUinfo.htm 8/10/2007 Asbestos Information Page 3 of 4 .contiguous to the area fret. 1529(e)(2) and (k)(7)) As soon as possible, notify affected employees regarding the results of personal air monitori (5)) Within 10 days of completing the work, regarding the location and quantity of remaining asbr as any final monitoring results (ref.1529(k)(3)(C)) See 8 CCR 1529 for the exact requirements. There are additional notification duties to the local air q the U.S.EPA. Employers perforning.work subject to 8 CCR Article 2.5 Registration- Asbestos - Related Wort • Send notices of temporary worksites to the nearest Cal/OSHA District Office 24 hours prior t each job (ref. 341.9) • Hold a pre-job safety meeting to discuss safety program and safe work practices with emplo representatives, and the building owner or their representative (for work covered by asbesto (ref. 341.11) • Post a warning sign readable at 20 feet (ref. 341.10(a); see also 1529(e)(2) and (k)(7) for sir additional requirements)) • Before the commencement of the work, provide a copy of the registration to the prime contre employers at the site. Also, post a copy beside the CaVOSHA poster. (ref. 341.10(b)) See 8 CCR, Article 2.5, for the exact requirements. Building Owners: 4 Prior to beginning work, determine the location and quantity of ACM and /or PACM based on the , (k)(1); (ref. 1529(k)(2)(A)) • Notify in writing or by personal communication the following or their authorized representatives: (i (B) • Prospective employers applying or bidding for work and all other employers with employees or adjacent to areas with such material • The building owner's employees working in or adjacent to these areas; and . • Tenants,who will occupy areas containing such material • Nthey are owners of public and commercial buildings constructed prior to 1979 and know th, contains asbestos-containing construction materials, provide information to all occupants. Fr view the regulations of the Health & Safety Code, Division 20, Chapter 10.4 Asbestos Notific 25919.7 at www.leainfo.ca.aov /calaw.html This code is enforced by city or county jurisdiatior Cal/OSHA. • If a school district, are required by the U.S. EPA to have a management plan and surveys of asbestos Is known or presumed to be present Contact the U.S. EPA Region 9 Asbestos Re Coordinator for Information. All Employers: • Ascertain on a daily basis, the integrity of enclosures and or the effectiveness of other contra in regulated areas their employees are working adjacent to. (ref. 1529(d)(4)) • If they discover their employees are exposed to asbestos they must protect them by, for exa from the area or performing an initial exposure assessment. ref. 1529(k)(4)) • If they discover ACM or PACM they must inform the building owner and other employers of working at the work site within 24 hours (ref. 1529(k)(4)) • In cases when material they reasonably believe to be asbestos has not been rendered harts work in affected areas. See section 25914.2(c) of the California Health and Safety Code for requirements. General Contractors: • Ascertain whether the asbestos contractor is in compliance with 8 CCR section 1529(d)(5)) them to cane into compliance when necessary http:// www. dir .ca.gov/DOSH/ACRU /ACRUinfo.htm 8/10/2007 Asbestos Information Back to too of page Help I Disclaime r I Conditions of use I Privacy policy ® 2003 State of Califomia. Page 4 of 4 8/10/2007 Exhibit 6 August 3, 2007 Newport Beach City Council 3300 Newport Blvd. Newport Beach, CA 92336 RE: Aerie Project Dear Mayor Rosansky and Members of the City Council, As neighbors of the proposed condominium development, we are very concerned regarding the noise impacts such massive and long -term construction from this project will have on us, and our neighborhood. It appears it will also affect other areas of the City, as, at a past Forth of July party at. our home, the police came to our door on a noise disturbance call, which turned out to be from a party across the harbor, on the Peninsula Thus, we've personally experienced how noise is actually magnified across the bay, as we can also hear the kids playing on the public beach across from us. We appreciate your consideration of our concerns. Sincerely, Joe and Lisa Vallejo 2501 Ocean Blvd. Corona del Mar, CA 92625 ,. Washington, Lillian From: Campbell, James Sent: Tuesday, August 14, 2007 3:47 PM To: City Clerk Page 1 of 2 Subject: FW: Public Comment on AERIE /Carnation Project and Mitigated Negative Declaration (PA2005- 196) FYI From: Laura Curran [mailtn:lauracurran @mac.com] Sent: Monday, August 13, 2007 7:41 AM To: Campbell, James Subject: Public Comment on AERIE/Carnation Project and Mitigated Negative Declaration (PA2005 -196) Dear Mr. Campbell: I am writing to express my concern that the Aerie / Carnation project on the coastal bluff above Carnation Cove appears to run counter to the Coastal Act and the CLUP policies pertaining to coastal bluff protection, especially view protection, landform alteration, and public access. Please accept these comments are part of the public comment period, which closed on August 12, a Sunday. A line of development at 52 feet and preservation of the bluff face would balance development and public interests in the natural and scenic bluffs, specifically: View from Begonia Park and the Bay Sufficient scale to establish coastal bluff habitat as proposed in the Negative MND. During the LCP planning meetings and related Council meetings in 2005, there was significant discussion about Newport Beach's intent to balance development and coastal bluff habitat preservation in the future, with significant interest in preserving natural bluff faces going forward. Coastal bluffs are an irreplaceable resource which are enjoyed by all; this project is an important opportunity for Newport Beach to demonstrate that it values coastal bluffs for their scenic beauty and natural habitat. Relevant LCP Provisions: 4.4.1 -3: Design site development to minimize alteration to significant natural land forms, including bluffs, cliffs, and canyons 4.4.3 -9: Where principal structures exist along Ocean Blvd and Carnation Avenue, require all new development to be sited in accordance with existing predominant line of development in order to protect coastal views.nd construction techniques to minimize alteration of coastal bluffs to maximum amount feasible. 08/14/2007 Page 2 of 2 4.4.3 -12: Employ site design and construction techniques to minimize alteration of coastal bluffs to the maximum extent feasible Please note: I am writing as a private citizen, and not in my capacity as an appointee to the Environmental Quality Affairs Committee (EQAC). Laura Curran lauracurran mac.com, 714 351 7379 Green is Good. Enhancing resources, revenue, ROL 08/14/2007 August 13, 2007 Mayor and City Council City of Newport Beach 3300. Newport Blvd Newport Beach, CA 92663 169 Saxony Road Suite 204 Encinitas, CA 92024 tel 760 - 942 -8505 fax 760 -942 -8515 w .coasftvvgroup.com Via Facsimile. First Class. —and Electronic Mai! (949.644.3229; jcampbell @city.newport- beach.ca.us) RE: AERIE PROJECT (PA 2005 -196) 201 -205, & 207 Carnation Avenue, and 101 Bayside Place Citizens' Comments on Coastal Development Permit Honorable Mayor and City Council: Coast Law Group LLP (CLG) submits this letter on behalf of Lisa and Joseph Vallejo, residents of 2501 Ocean Blvd., and Kathleen McIntosh, resident of 2495 Ocean Blvd., Corona Del Mar. On behalf of our clients, we urge you to deny the above - referenced project on the basis that it is inconsistent with Newport Beach's Coastal Land Use Plan (CLUP). The AERIE Project (Project) is fatally flawed in that it does not comply with the CLUP's Policies protecting natural landforms because it extends down to 30.5 feet above mean sea level on a 70 foot bluff, and will require excavation of 32,000 cubic yards of bluff material.' A. The CLUP Must Be Liberally Interpreted in a Manner that is Most Protective of Significant Coastal Resources. The Coastal Act must be liberally construed in light of its resource protective nature. (Pub. Res. Code § 30009.) "The highest priority must be given to environmental consideration in interpreting the. statute." (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal. App. 4th 493, 506). While the Coastal Act is designed to allow reasonable private development along the coast, the right to new development is subordinate to protection of significant coastal resources. Specifically, new residential development in the Coastal Zone not considered a significant coastal resources. Local Coastal Programs (LCP), must be consistent with the Coastal Act. While an LCP can be more restrictive and more resource- protective than the Coastal Act, it cannot be less protective. (Yost v. Thomas (1984) 36 Cal. 3d 561, 572.) For example, Coastal Act section 30251 states: Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. ' The AERIE Project also violates the parking provisions of the CLUP. Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 2 of 10 In this case, Newport Beach's CLUP is consistent with the Coastal Act, protecting views of coastal bluffs and minimizing alterations of natural Iandforms. (CLUP Policy 4.4.1.)2 These bluff protection policies can be found throughout the CLUP. For example, Policy 4.4.1 -1 of the CLUP states that the purpose of the CLUP is to "Protect and, where feasible, enhance the scenic and visual qualities of the coastal zone, including public views to and along the ocean, bay and harbor and to coastal bluffs and other scenic coastal areas." (CLUP Policy 4.4.1 -1, emphasis added.) Policy 4.4.3 specifically identifies the coastal platform occupied by the Corona Del Mar ranges and notes that "The bluffs, cliffs, hillsides, canyons and other significant natural Iandforms are an important part of the scenic and visual qualities of the coastal zone and are to be protected as a resource of public importance.' (CLUP Policy 4.4.3.) Thus, the purpose of the CLUP is to protect not only views of the ocean, but views of the natural bluffs as an import coastal resource. In order to protect the bluffs from development, the CLUP mandates that developers, "Design and site new development to minimize alterations to significant natural Iandforms, including bluffs, cliffs and canyons.' (CLUP Policy 4.4.1 -3.) Policy 4.4.3 -12 states that the City shall "Employ site design and construction techniques to minimize alteration of coastal bluffs to the maximum extent feasible..." Thus, the CLUP must be broadly interpreted to provide paramount protection for the bluffs, while specific policies must be interpreted in a manner that minimizes alterations of the bluff to the maximum extent feasible. Even policies which expressly permit bluff face development must be interpreted such that "development on the bluff face is controlled to minimize further alteration." (CLUP Policy 4.4.3 at p. 4 -76.) AERIE claims the CLUP only amounts to "guidance" because Newport Beach must prepare an implementation plan to have authority to issue coastal development permits. (Manatt, Phelps and Phillips Corresp., March 28, 2007 at 2.); See also Pub. Res. Code § 30600) Indeed, the Coastal Commission has stated that the CLUP should be considered guidance and not binding on the Coastal Commission. (CCC App. 5 -06- 035, at 1.) However, identifying the CLUP as "guidance" simply means the development must comply with both the Coastal Act and the CLUP. Because implementation ordinances have not been prepared, the Coastal Commission retains original permit jurisdiction and will review the project "de novo" for consistency with the Coastal Act, instead of appeal jurisdiction which reviews the Project solely for consistency with the LCP. (Pub. Res. Code 30600.) While such procedural issues may affect the standard of review for the Coastal Commission, it will not affect how the City reviews the AERIE Project. The Project still must be found to be consistent with the CLUP. Further, the Coastal Commission will not 2 Many of the CLUP policies were written by Coastal Commission Staff in consultation with the City Staff. (Coastal Commission Staff Report NPB -MAJ -1,04, at 8.) However, it was the Coastal Commission staff that wrote the CLUP Policies controlling development on bluff faces. (Id.; See also, CLUP, Appendix A, "Findings for Approval with Suggested Modifications" at 3.) Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13,2007 Page 3 of 10 approve development that may interfere with a local government's preparation of a certified LCP. (Pub. Res. Code § 30604.) Thus, the Coastal Commission will not approve any project it believes is inconsistent with the CLUP. The City must realize any conflicts between the Coastal Act and the CLUP will be resolved in a manner that is most protective of significant coastal resources. (Pub. Res. Code § 30200.) Thus, to be consistent with Public Resources Code section 30251, and minimize alteration of natural landforms, the Coastal Commission will likely deny any project which exceeds the strictest interpretation of the predominant line of existing development. And the converse is equally true, for the Project to be approved by the Coastal Commission, it must comply with both the policy to minimize alteration of the bluff and the PLOED, assuming that the PLOED even applies. As discussed below, because the AERIE Project will excavate, obscure and destroy a large portion of the natural bluff, it cannot be considered consistent with the CLUP. According to the building plans, the natural grade of the existing bluff corresponds to an elevation of 70 feet above mean sea level (MSL).3 The proposed Project will build down 50 feet to 20 ft. MSL. (Neblett and Assoc., Conceptual Grading Plan Review Report, at 15.) This means that more than 50% of the natural bluff will be obscured by condominiums, the space for which will be created by excavation of more than 32,000 cubic yards of bluff material. Notwithstanding assertions to the contrary by the Applicant and its attorneys, the Project is plainly inconsistent with the intent of the CLUP to protect views of the natural landforms and minimize alteration of natural landforms. B. The Coastal Land Use Plan Does not Permit the AERIE Project to Extend onto the Bluff Face. According to one of the early Staff Reports for the Project, "The site is a steeply sloping coastal bluff and cliff and is subject to marine erosion." (Staff Report, Feb. 22, 2007 at p. 3, emphasis added.) Despite this unequivocal statement that the bluff at the AERIE Project is "subject to marine erosion ", the MND and Staff Report all but ignore the policy implications of this fact. There is no mention nor analysis of Policy 4.4.3 -3, which controls development on bluffs subject to marine erosion. Such lack of analysis was of specific concern to the ' It is unclear whether the "natural grade" identified on the building plans is actually existing grade (which was excavated during the previous construction) or the true natural grade. The exact elevation of the natural grade at the top of the bluff is not specified on any of the conceptual drawings. (See MND A -10, A -11, A -12, A -13, A -14, A -15.) However, Applicant's Environmental Information Form identifies the bluff top at 70 feet above MSL. (P & D Consultants, "Environmental Information Form' August 2005, at 3.) Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 4 of 10 Coastal Commission. (Coastal Commission Comments, dated May 14, 2007 at 2.)° New development on the bluff face is permitted only when the bluff is not subject to marine erosion. This is reflected in the CLUP, which states: Require all new bluff top development located on a bluff subiect to marine erosion to be sited in accordance with the predominant line of existing development in the subject area, but not less than 25 feet from the bluff edge. This requirement shall apply to the principal structure and major accessory structures such as guesthouses and pools. The setback shall be increased where necessary to ensure safety and stability of the development. (CLUP § 4.4.3 -3, emphasis added.) Thus, the first issue to be considered is whether the bluff is subject to marine erosion, not where the predominant line of existing development (PLOED) is located. If the bluff is subject to marine erosion, all new development must maintain a 25 foot setback from the bluff edge regardless of where the PLOED is located. The City's lack of analysis of Policy 4.4.3 -3 is incomprehensible in light of proposed mitigation measures directly recognize the impacts of marine erosion. For example, the Project must accept a waiver of future shoreline armoring during the economic life of the structure (75 years). (MND at 44 -45.) A coastal hazard study was required of the applicant. (MND at 44.) In fact, the MND analyzes the Project for compliance with Policy 4.4.3 -4 of the CLUP, which only applies to bluffs subject to marine erosion. According to the MND, the AERIE Project complies with the CLUP because "No new accessory structures are proposed." (MND at 47.) The analysis further recommends that existing accessory structures be removed if threatened by erosion, instability or other hazard. (Id.) If Policy 4.4.3 -4 applies to accessory structures for the Project, the City certainly cannot claim that 4.4.3 -3 does not apply to the principal structures. In light of the clear evidence that the bluff is subject to marine erosion, the AERIE Project must comply with Policy 4.4.3 -3.5 The Project, as proposed, does not " Coastal Commission Staff specifically questioned why there was no analysis of CLUP Policy 4.4.3 -3, yet no explanation has been forthcoming The Commission specifically noted in the CLUP, "Mhe Commission does not regulate development differently depending on whether or not the site has been previously graded." (CLUP, Appendix A, at 3.) Whether there is existing development on the bluff face is irrelevant to the Coastal Commission's analysis. ' The City Attomey has stated that the more general policies such as 4.4.3 -3 are subordinate to the more specific policies such as Policies 4.4.3 -8 and 4.4.3 -9 which specifically identify bluff development on the bluff face of Camation Avenue. (Planning Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 5 of 10 comply with the 25 foot setback required under the CLUP for new development along bluffs subject to marine erosion, and, therefore, must be denied.' C. The AERIE Project Cannot Extend onto the Bluff Face. The MND puts forth the argument that general policies protecting the natural bluff faces in the CLUP, such as Policies 4.4.1 -1, 4.4.1 -2, 4.4.1 -3 and 4.4.3 -12 are subordinate to CLUP Policies 4.4.3 -8 and 4.4.3 -9. (MND at pp. 46 -47.) The MND states, "CLUP Policy 4.4.3 -8 expressly allows 'private development on coastal bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar determined to be consistent with the predominant line of existing development. "' (MND at p. 27.) Therefore, the MND reasoning concludes, the Project may extend down the natural bluff face in line to the predominant line of existing development (PLOED). (MND at 27 & 47.) However, City Staff misquotes the CLUP. Properly interpreting CLUP Policy 4.4.3 -8, even assuming the City can ignore the requirement for a 25 foot marine erosion setback on Carnation Avenue, the Project still may not extend onto the bluff face. CLUP § 4.4.3 -8 states, in its entirety: Prohibit development on bluff faces, except private development on coastal bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar determined to be consistent with the predominant line of existing development or public improvements providing public access, protecting coastal resources, or providing for public safety. Permit such improvements only when no feasible alternative exists and when designed and constructed to minimize alteration of the bluff face, to not contribute to further erosion of the bluff face, and to be visually compatible with the surrounding area to the maximum extent feasible. (Emphasis added.) Commission Minutes, May 17, 2007) However, a policy which specifically identifies Carnation Avenue, and a policy which identifies bluffs which are subject to marine erosion are equally specific. Further, if possible, policies must be interpreted in harmony with each other. (Conway v. City of Imperial Beach (1997) 52 Cal. App. 4th. 78, 84.) If it is impossible to resolve the conflict through harmonizing the policies, conflicts must be resolved in a manner that is most protective of significant coastal resources. (Pub. Res. Code §§ 30007.5, 30200.) Luxury condominiums are not significant coastal resources. The CLUP identifies the natural coastal bluffs as a significant coastal resource. ' New development must be brought into conformance with the regulations of the district in which such property is located. (Newport Beach Municipal Code § 20.62.080.) Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 6 of 10 Thus, improvements on the bluff face of Camation Avenue may be properly permitted when there are no feasible alternatives other than building on the bluff face and such development is consistent with the PLOED. There is no indication in the record that it is infeasible to locate new development entirely on top of the bluff. In fact, the existing structure is entirely on top of the bluff (assuming the bluff was not excavated to accommodate the structure originally). The existing structure does not extend down the bluff, and thus it is entirely feasible to approve new development within the previous footprint of the building. City staff has argued that the second sentence of Policy 4.4.3 -8, "Permit such improvements only when no feasible alternative exists..." only applies to public improvements. (Planning Commission Meeting minutes, May 17, 2007, at p. 8 of 20.) However, the second sentence's language, "Permit such improvements" indicates that the prohibition on bluff development was intended to apply to all improvements, not to only public improvements. Omission of the word "public' demonstrates improvements has a different meaning. (See, Cornette v. Dep't of Transp.(2001) 26 Cal. 4th 63, 73:; People v. Gardeley (1996) 14 Cal. 4th 605, 621, indicating the court will not add nor omit words from a statute.) If the drafters of the CLUP intended to limit such requirement solely to public improvements, then it would have included specific language in Policy 4.4.3 -8, especially considering that the previous sentence distinguishes between public improvement and private development. Because it did not make such a distinction, "improvements" must mean all improvements, public and private. The AERIE Project may not extend down the bluff face unless there are no feasible alternatives. D. The Predominant Line of Existing Development Limits the House to the Existing Foot Print. City Staff correctly states that the specific Policies of 4.4.3 -8 and 4.4.3 -9 permitting bluff face development must be interpreted and applied in a manner that is harmonious with more general policies requiring new development to minimize alterations of the natural bluffs. (Staff Report, May 17, 2007, at 3; See also, CLUP Policies 4.4.1 - 1,,4.4.1 -3, 4.4.3, 4.4.3 -12, 4.4.3 -15.) For example, Policy 4.4.3 identifies Carnation as one of the places where continued development along bluff faces is permitted. "However, development on the bluff face is controlled to minimize fu her alteration." (Policy 4.4.3 at 4 -76, emphasis added.) The CLUP's stated intention to minimize "further" alteration, despite permitting continued bluff face development,' strongly indicates that the drafters of the CLUP wished bluff face development to remain in its existing footprint and not further extend down the bluff. As noted in the April 5, 2007 Staff Report, limiting the proposed development to within the footprint of the existing development "would minimize alteration of the bluff to the greatest extent." (Staff Report, April 5, 2007 at 4 of 10.) Thus, to be most consistent with the policies of the CLUP, the City Council should limit such footprint to the existing building. Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 7 of 10 According to the Staff Report, the elevation of 201 -205 Carnation is 52 feet MSL. (Staff Report, May 17, 2007 at 4.) Staffs original PLOED calculation of 52 feet MSL essentially limited the development to the existing development's footprint. (Staff Report, April 5, 2007 at 6.) City Staff later revised the PLOED analysis to include a house at 2495 Ocean Blvd, which extends down to 30.5 feet. Thus, Staffs recommendation is that the City Council adopt a PLOED for the Project at 50.7 feet above MSL, which is the mean height of development along Carnation Avenue and the adjacent houses along Ocean Boulevard. The Planning Commission's approval of the Project permitted the visible portion of the development to extend down the bluff face to 30.5 feet MSL and 59 feet above MSL at the North East Corner of the development. (Meeting Minutes; at p. 15 of 20, May 17, 2007.) However, this takes into account both Carnation Avenue and Ocean Boulevard Development, which are separate streets, and operating under separate rules. In addition, as noted in the April 5, 2007 Staff Report, such PLOED does not minimize the alteration of the bluffs. Both the Applicant and the Planning Commission make a fundamental mistake by. including buildings along Ocean Boulevard in their analysis of the PLOED. The AERIE Project is located entirely along Carnation Avenue, not Ocean Boulevard. Ocean Boulevard has a completely different set of requirements for bluff face development designed to protect the public view along Ocean Boulevard. The CLUP states, "Prohibit projections associated with new development to exceed the top of curb on the bluff side of Ocean Boulevard." (CLUP Policy 4.4.2 -4.) Thus, historically, bluff face development was more intensive along Ocean Boulevard, because such development was designed to maintain the view along Ocean Boulevard. Including development along different streets completely skews the PLOED analysis. For example, the Applicant's calculation included development such as the Channel Reef development, which is sitting on the beach below the bluff, and houses on Bayside Drive located in front of the Carnation Avenue bluff, to argue that the PLOED is actually 10 feet above MSL. (MND at 28; See also, MND figure A -19.) Thus, under the Applicant's interpretation of the CLUP, only the bottom ten feet of the bluff must be protected in order to comply the CLUP. Clearly such interpretation does not comply with the CLUP's stated goal of minimizing alteration of the natural bluffs, as there would be essentially no visible natural bluff left. (CLUP Policy 4.4.3.; See also, Pub. Res. Code § 30251.) The applicant cannot take advantage of the development patterns along both Carnation Avenue and Ocean Boulevard, yet refuse to comply with the height limits along Ocean Boulevard. The development is entirely on Carnation Avenue, and therefore may only consider existing development along Carnation Avenue for determining the PLOED. The PLOED as calculated solely using Carnation Avenue development, and as originally calculated by City Staff, is 52 feet above MSL.. Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 8 of 10 Further, the City Council will be setting a precedent on how to interpret the CLUP in this decision. If the City Council permits the PLOED to be determined by averaging the lowest extent of development within 250 feet, including those developments that are actually at the base of the bluff, then the CLUP is essentially meaningless. The public views of the natural bluff from Balboa Peninsula and the waterway leading to Newport Bay would be completely destroyed. Finally, The City must interpret the calculation of the PLOED in a manner that can be applied to all bluff face development in all situations. The PLOED cannot be re- interpreted on a case by case basis, otherwise it becomes the essence of arbitrary and capricious decision making. The most logical and enforceable way to interpret the PLOED is to limit the line to the mean sea level elevations of the development along the street where the development is located. Any other interpretation would result in a lack of enforceable standards for bluff face developments and prove an endless source of controversy and trouble to the City. E. The AERIE Project Must be Denied Because it Violates the Parking Policy in the CLUP. CLUP policy 2.9.3 -1 states that the City must: Site and design new development to avoid use of parking configurations or parking management programs that are difficult to maintain and enforce. (See also General Plan CE 7.1.1) Despite this clear policy statement against unorthodox "parking configurations," the AERIE Project is designed to have 18 resident parking spaces and 7 guest parking spaces, the majority of which will be solely accessible by the use of two vehicle elevators. (MND Figure A -4.) Parking will occur on all lower levels, with the lowest parking stalls at 31.5 feet MSL in elevation. (MND figure A -13) Thus, the elevators must potentially lift a car 40 feet in elevation. There is no analysis of the time it takes for one of the elevators to fully travel from the street level to the lowest parking level, and then return to the street level for another car. There is no analysis of the success of similarly designed parking configurations. This concern was discussed in the April 5, 2007 Staff Report which noted that "if the elevators are in use and someone desires to access them from Carnation, they will be forced to wait within the public right -of -way for the elevator possibly inconveniencing the public." (Staff Report, dated April 5, 2007 at 5.) The Staff Report continues, "Additionally, residents and their guests and service providers might be more inclined to park on the street when it is more convenient to do so. They will take on- street parking away from visitors to the coastal zone, which would negatively impact public access. (Id.) The Staff Report concludes that the parking configuration may be inconsistent with Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 9 of 10 CLUP Policy 2.9.3 -1. Despite this direct commentary on the parking problems associated with the Project, the final MND talks glowingly of the scheme simply because the Project . exceeds minimum requirements. (MND at 54.) Additionally, because the Project reduces the curb cuts the MND goes so far as to claim the Project will create a beneficial impact in this popular beach destination area. (MND at 54.) Interestingly, discussion of Policy 2.9.3 -1 was left out of the draft resolution for the Planning Commission and is not analyzed in the MND. The parking configuration further fails to take into account the realities of the life- styles of the very wealthy, for whom this project is clearly tailored. The City Council should anticipate each of the units will require service personnel requiring additional parking spaces. Seven guest parking spots for nine 5,000 to 7,000 square foot condominiums borders on absurd, and it is not credible that these spaces will serve both guests and workers expected to service the luxury condominiums. Parking will be greatly impacted in an area that is already described as a "popular beach destination area." (MND at 54.) The parking should be designed in such a manner that it is convenient to use and will accommodate the actual number of cars residing at and visiting'the complex. The currently proposed parking configuration is neither convenient nor adequate and will be impossible to enforce. Residents, guests, visitors and employees will be parking on the street to avoid such inconvenient parking. The AERIE Project does not comply with CLUP Policy 2.9.3 -1, and therefore the Project must be denied. CONCLUSION A Project Cannot Be Approved Which Does not Comply with the CLUP. The applicant for the AERIE Project desires a number of exceptions to the CLUP in order to maximize the size, scale and bulk of the AERIE Project. The applicant cannot take advantage of certain parts of the CLUP Policy without accepting the disadvantages of such Policy as well. As noted above, the applicant wishes to take advantage of the PLOED along Ocean Avenue, which limits new construction to below curb height, but wants to take advantage of the 30 foot height limit on Carnation Boulevard. This defies logic and reasoning, is not sound public policy, and legally cannot be done. The Project is entirely on Carnation Avenue and must be limited to the PLOED of those buildings — 52 MSL. Citizen CLUP Comments RE: AERIE Project (PA 2005 -196) August 13, 2007 Page 10 of 10 The CLUP is extremely clear. Even if the PLOED does apply, it must be applied in a manner which minimized further alteration of the bluff face. (CLUP Policy 4.4.3) Excavating approximately 32,000 cubic feet of bluff cannot be considered "minimizing" the alteration. The Project is inconsistent with the language, intent and spirit of Newport Beach's Coastal Land Use Plan. The AERIE Project must be denied. Sincerely, COAST LAW GRO LLP Marco A. Gonzalez Todd T. Cardiff CC: Karl Schwing, Orange County Area Supervisor California Coastal Commission James Campbell, Senior Planner, City.of Newport Beach Ocampbell @city. n ewport- beach.ca. us) AERIE PROJECT COASTAL ACT AND CEQA CONCERNS City of Newport Beach City Council Hearing August 14, 2007 Marco A. Gonzalez, Esq. Coast Law Group LLP EOA Fundamentals The App /icant's Wager • Mitigation Measure IX -5. The project shall be revised such that principal building is within the predominant line of existing development. • MND invalid if City Council PLOED determination limits development more than Planning Commission CEOA Fundamentals Deferral of Studies, Mitigation • The Goal of CEQA is to inform decision makers and the public in advance of project approval • Failure to require appropriate studies before MND Certification violates CEQA — common sense and case law • Overturning MND is a very low evidentiary threshold — "fair argument" standard CEOA Flaws Traffic and Noise • Construction Traffic and Excavation Disposal — How does City ensure mitigation without info? — Limited ingress and egress • 32k yds3 export = 3.5 — 4 months of hauling • Thousands of truck trips • Road is already worn, intersections already impacted — Staging impacts unmitigated • Noise impacts exemption does not equal mitigation — Question is not whether the activity will violate the municipal code, but whether it will significantly affect the surrounding environment ndamenta Rules from Statute and Cases • CA and CLUP must be liberally construed in a manner most protective of significant coastal resources. - CA Sec. 30009; Bo/sa Chica Land Trust v. Superior Court 71 Ca1.App.4th 493, 506 • Conflicting provisions balanced in favor of protecting significant coastal resources. - CA Sec. 30200, 30007.5 Coastal Act Section 30251 & CLUP • Visual qualities shall be considered and protected as a resource of public importance. — CLUP sec. 4.4.1 -1 • Development shall be designed to protect views to and along scenic coastal areas — CLUP sec. 4.4.1 -2 — "designed and sited" Coastal Act Section 30251 & CLUP • Development shall minimize the alteration of natural land forms — CLUP 4.4.1 -3 • Where feasible, restore and quality in visually degraded CLUP sec. 4.4.1 -1 enhance visual areas • Visual compatibility with surrounding — CLUP 4.4.3 -8 &9 — PLOED PLOED CLUP Sec. 4.4.3 -8 o Does section 4.4.3 -8 even apply? Sec. 4.4.3 -3 can't just be read out — limitations on bluffs subject to marine erosion apply, setbacks — If at all possible, olicies must be interpreted in harmony with each other. Conway v. City of Imperial Beach 52 Cal.Appl4th 78, 84) — If impossible to harmonize conflict must be resolved in manner most protective oFsignificant coastal resources — CA sec. 30007.5, 30200 • Bluffs are significant coastal resources • Residential development specifically is not PLOED CLOP Sec. 4.4.3 -8 • Interpreting 4.4.3 -8 "Permit such improvements only when no feasible alternative exists and when designed and constructed to minimize alteration of bluff face ... and to be visually compatible..." PLOED CLUP Sec. 4.4.3 -5 1. "Such improvements" includes "development on bluff faces" in first sentence of 4.4.3 -8 - Note failure to use the word "public" in second sentence of 4.43-8 2. "Development" and "structures" used interchangeably. 4.43-5 & 6 3. "Improvements" used interchangeably with "structures" and "development" in 4.4.3 -6 and 4.4.3 -9 4.4.3 -5. Require all new bluff top development located on a bluff not subject to marine erosion to be set back from the bluff edge in accordance with the predominant line of existing development in the subject area. This requirement shall apply to the principal structure and major accessory structures such as guesthouses and pools. The setback shall e increased where necessary to ensure safety and stability of the development. 4.4.3 -6. On bluffs not subject to marine erosion, require new acc structures such as decks, patios and walkways that do not require structura foundations, to be set back from the bluff edge in accordance with the predominant line of existing acc development. Require accessory structures to be removed or relocated landward when threatened by erosion, instability or other hazards. 4.4.3 -9. Where. principal structures exist on coastal bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar, require all new development to be sited in accordance with the predominant line of existing development in order to protect public coastal views. Establish a predominant line of development for both principle structures and accessory improvements. The setback shall be increased where necessary to ensure sa ety and stability of the development. 4.4.3 -8. Prohibit development on bluff faces, except private development on coastal u aces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar determined to be consistent with the predominant line of existing development or public improvements providing public access, protecting coastal resources, or providing for public safety. Permit such improvements only when no feasible alternative exists and when designed and constructed to minimize alteration of the bluff face, to not contribute to further erosion of the • "Development and "improvement" mean the same thing. PLOED CLOP Sec. 4.4.3 -8 • Must construe liberally • Must harmonize the statutes • Must read most protective of significant coastal resources, especially if apparent conflict • Conclusion: Can only permit development to PLOED when no feasible alternative exists and must be designed to minimize alteration of bluff face PLOED CLOP Sec. 4.4.3 -8 • Visual compatibility to the maximum extent feasible — project design and PLOED location • Staff got it right the first time • PLOED = N 52ft MSL — You have discretion to accept staffs reasoning — You aren't bound by the Planning Commission — Coastal Commission Conclusion. • Mitigated Negative Declaration violates CEQA Coastal Commission will not likely approve this development Simply can't fit a square peg in a round hole Redesign is necessary DAWSON & DAWSON JOHN HARLAN DAWSON A PROFESSIONAL CORPORATION TELEPHONE (949) 720 -9414 41907-1907) ATTORNEYS AT LAW 2660 EAST COAST HIGHWAY KEITH ABBOT DAWSON CORONA DEL MAR, CALIFORNIA 92625 TELECOPIER (949) 759.9144 August 10, 2007 Honorable Mayor of the City of Newport Beach a Members of the Newport Beach City Council 3300 Newport Boulevard c-7 Newport Beach, CA 92663 J= Ti Re: Aerie Project 1� Greetings: _- a I became a proud resident of Corona Del Mar in 1971. In 1976, I was fortunate enough to be able to purchase a home here. Twenty years later in 1996, my wife and I purchased an office building on Pacific Coast Highway in Corona Del Mar. We actually walk to.work in the morning. There have been.many changes in,Corona del Mar in the last 35 years. Like me, most would say that the changes have been for the better - others would disagree. But then, there are always those who will disagree..Either way,.like it or not, nothing ever stays the same. As a long -time resident of this charming community, I wish to express my unqualified support for the Aerie Project. I have taken the time to familiarize myself with the technical aspects of the project, and I am aware that a project of this size is bound to have an impact on the community during construction just as any significant project would. However, in my experience, the bark is always much worse than the bite. We learned that lesson when we all girded for the traffic nightmare that was supposed to occur when the medians were improved in Corona Del Mar. We all dealt with the inconvenience and I, for one, am glad we did. The Aerie Project will remove an eye -sore at the entrance to our harbor and replace it with a precious jewel, and it will do so within existing zoning and parking requirements. Everyone has their own personal preferences and some have their own agendas. However, property rights are just that - property rights. To my knowledge, there is nothing relative to zoning of the property or any local ordinances or restriction that would prevent your approval of the project. Mayor of the City of Newport Beach Members of the Newport Beach City Council August 10, 2007 Page 2 As you know, the Planning Commission carefully scrutinized all aspects of the Aerie Project and several public hearings were held. The only Planning Commissioner who voted against the project did so because he thought that the parking plan was "inconvenient ". Although everyone is entitled to their opinion, the Aerie Project exceeds the parking requirement - a refreshing rarity in Corona Del Mar. The applicant has played by the rules every step of the way, and he has modified the design of the project based on the recommendations of the Planning Commission. The design of the Aerie Project complies with all existing zoning and ordinances. The applicant has the right to develop the property within existing guidelines, and I urge you to approve the Aerie Project on August 14tH Very Truly Yours, DAW ON & D�WSON, Irofessio l Corporation h A°." Daws KAD /jj JOHN H. CUMMINGS 2600 OCEAN BOULEVARD NEWPORT BEACH, CA 92663 (949) 752 -5181 August 7, 2007 The Honorable Steven Rosansky Mayor -City of Newport Beach 3100 Newport Boulevard Newport Beach, CA 92663 Re: AERIE CONDOMINIUM DEVELOPMENT OCEAN BOULEVARD AT CARNATION Dear Mayor Ronsansky: ZT7 tL ;G 16 M 96 08 Our family resides at 2600 Ocean Boulevard, Corona del Mar, and we have been residents of Newport Beach for 25 years. We also have homes in Ford Road and on Balboa Island and have seen countless developments in these areas presented for consideration to the City of Newport Beach. We are very aware of the proposed development presented to the City by. Mr. Richard Julian, known as AERIE. Many of my neighbors have attended meetings sponsored by Mr. Julian wherein we have been allowed sufficient time to question the scope of the development and its impact on our individual neighborhood and to the City. The vast majority of my neighbors are very impressed and support this world class development and how this development will enhance both values and the aesthetics here in Corona del Mar. Over the years, we have constantly been annoyed with the transitory tenancies that seem to have been the norm at the existing apartment complex. I believe there are 14 mini - studio apartments that have historically been occupied by transient tenants who live in the area for a short period of time and often have the party scene as their major activity while residing in this old, dated apartment building. My wife and I support this project without reservation and sincerely hope that you and the City Council give Mt. Julian sufficient approval to move forward with this exciting project. I am also aware that several of our neighbors have expressed interest in purchgsA" home in the AERIE development. Jr. Don Webb Leslie Daigle K. Curry R. Julian lr 017/ - Our family resides at 2600 Ocean Boulevard, Corona del Mar, and we have been residents of Newport Beach for 25 years. We also have homes in Ford Road and on Balboa Island and have seen countless developments in these areas presented for consideration to the City of Newport Beach. We are very aware of the proposed development presented to the City by. Mr. Richard Julian, known as AERIE. Many of my neighbors have attended meetings sponsored by Mr. Julian wherein we have been allowed sufficient time to question the scope of the development and its impact on our individual neighborhood and to the City. The vast majority of my neighbors are very impressed and support this world class development and how this development will enhance both values and the aesthetics here in Corona del Mar. Over the years, we have constantly been annoyed with the transitory tenancies that seem to have been the norm at the existing apartment complex. I believe there are 14 mini - studio apartments that have historically been occupied by transient tenants who live in the area for a short period of time and often have the party scene as their major activity while residing in this old, dated apartment building. My wife and I support this project without reservation and sincerely hope that you and the City Council give Mt. Julian sufficient approval to move forward with this exciting project. I am also aware that several of our neighbors have expressed interest in purchgsA" home in the AERIE development. Jr. Don Webb Leslie Daigle K. Curry R. Julian .y •eel I 3 N.:. b.l r n • Y^ Yr •11 ^ -n- 4 - LK - .' 414u I 1 1 +'3 t. .. •. � 11 �. 1 � •.1 l i' •r - Ic-rr Y -• w «1, 's I. 'u•' - • _•I-i f - s n •a' WI Y! �4 - t \JrU .♦ 1. _ _ • - Y •.1 - .• • .• R • R• Ire•' .11 dim OW-1114 Oil • - .I -• • f r i• -Y \ • I h Met ervative poGry &I le and i don't think that i9 *e W*W t hese poixies. You aye looking fix reasanableiiess in setting t tine of deveioprtlettt based on tte other structures. ilck Adian, ate, gave an ovendew of his project noting t *dritecturai features, the twsdarg will not exkmd darn to the wafer and I PW 5 of23 C. '-2j JA FVeteja appeared in OWDairort referring to pnlir3es 4.4.1 -1. 4A. 4.1-3 and read her fetter Ow became part or the admwdsLrafim mcord. M ♦ ;01V WA ♦ ;1 r. Campbell arhawered there are two fine& that Could be looped at an this Cones properly wilt taro bluff Laces intersecting et the project site. The be a rational to develop one kndtt or predominant firse m Carnation SN d a separate one on the other side. You could do R either way. Jotter Toerge noted his concerns as they relate to the Declaradion (MND): Public view at to comer of Oceans Boulevard and Carrutdon - it rrty contenton tlW it is not to responatttay of this Parbord developer to male that view wider or bigger. but I also feet it is in approvable to allow that view corridor to be made sawler. I Qhatdted the app5cant for the proposed modfhcatons tonight tt respeu tt�t �: Air Quality - proposed haul route is krWortant to consider ghren magnitude of excavation and the amaxd of trucks csCub through the area for the next few years. the public needs to see and be given an opportunity to mvmw, He asked that the Construction Management Plant. ParkhV Plat haul route be brought b th to the Planning Conwrassion so the p has the opportunity to See It Page 9 of 23 D.&I AERIE 0*2oo5-195) AWO M. 2W7. Page 4 1 OP LL N"6 The view of the site ft in Begonia Park was also considered. A depiction of to project from to upper part of the park was included to tie draft MND. AWXWh to project will be in that view and a portion of De view of the water and harbor enbarm vA be atiecfed, the Tending is. OW d does not Tree to the level of a aqmTmM enrirorwnerttal kroad nor is it kwoonsWent vdth poky to probed pubic views. The view of the coasts( MO. a public coastal resource, is also considered a pubic view . Pmt to the CLOP. The project wiH extend furflKw down Om b4Af than erring devetoprnenk however, there is no signHiamt Wgmd to #m view provided the project does not exfertd beyond the predominant fine of existing development. 1 :•t.: :'n r' a r: •. - , • r. }I I '1 i 7 . I:b• . r • -. Lo- :v - ti' r f ._ c• «- '.ice. a.. - :. 7M 111111 • 'l l r• I - s•"':yY 1. � .• y L 1 r - 1 r.'✓.: r ^. .r f :;1. r: (.- ♦. ter. �. _ •: �f: •_ ♦. _. �:r�• '1 1 � .• +v � -r.: _ •• I - t 1 •. a. • it 7- • AERIE (PA2945-19M August 14.1947. 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