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HomeMy WebLinkAbout11 - Back Bay Landing - CorrespondenceAgenda Item No. 11 February 11, 2014 Recieved After Agenda Printed LAW OFFICES OF ROBERT C. HAWKINS February 10, 2014 Via email (jmurillo(a),newportbeachca.eov) Rush Hill, Mayor Members of the City Council c/o Jaime Murrillo, Senior Planner Department of Community Development City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Re: Comments on City Council Agenda Item No. 11: Back Bay Landing Final Environmental Impact Report ( "FEIR ") SCH No. 2012101003 Greetings Thank you for the opportunity to comment on the captioned matter. As you know, this firm represents Stop the Dunes Hotel, an unincorporated community action group dedicated to ensuring compliance with state and local laws including the California Environmental Quality Act, Public Resources Code sections 21000 et seq. in connection with developments in and around the Back Bay and the Dunes and Friends of the Bay dedicated to protection of Upper and Lower Newport Bay. Because this Project threatens the Upper and Lower Newport Bay environment, traffic, biological resources, aesthetics and views, noise, and other resources, we offer the following comments on the DEIR/FEIR in the serious hope of avoiding these significant impacts which will seriously and adversely affect our City, our community and the Upper and Lower Newport Bay environment. Of course, these comments may seem late, but the Staff Report for the captioned Agenda Item No. 11 only came out on Friday afternoon, February 7, 2014. These comments are timely. I. Introduction: EIR Standards. An EIR constitutes the heart of CEQA, Public Resources Code sections 21000 et seq.: An EIR is the primary environmental document which: ".. serves as a public disclosure document explaining the effects of the proposed project on the environment, alternatives to the project, and ways to minimize adverse effects and to increase beneficial effects." CEQA Guidelines section 15149(b). See California Public Resources Code section 21003(b) (requiring that the document must disclose impacts and mitigation so that the document will be meaningful and useful to the public and decision - makers.) Further, CEQA Guidelines section 15151 sets forth the adequacy standards for an EIR: 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 2, February 10, 2014 "An FIR should be prepared with a sufficient degree of analysis to provide decision - makers with information which enables them to make a decision which takes account of the environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith attempt at full disclosure." Further, "the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions." Concerned Citizens of Costa Mesa. Inc. v. 32nd District Agricultural Association. (1986) 42 Cal. 3d 929, 935 (Emphasis supplied.). An agency's determination in connection with an EIR must be supported by substantial evidence. Public Resources Code sections 21168 and 21168.5. "[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." Public Resources Code section 21080(e)(1). However, "[r]elevant personal observations such as [personal observations about noise] can constitute substantial evidence." Oro Fino Gold Mining Corp. v. County of Del Oro (1990) 225 Cal. App. 3d 872, 882. In addition, an EIR must specifically address the environmental effects and mitigation of the Project. But "[t]he degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." CEQA Guidelines section 15146. The analysis in an EIR must be specific enough to further informed decision making and public participation. The EIR must produce sufficient information and analysis to understand the environmental impacts of the proposed project and to permit a reasonable choice of alternatives so far as environmental aspects are concerned. See Laurel Heights Improvement Association v. Dents of the University of California (1988) 47 Cal. 3d 376. Also, to the extent that an EIR proposes mitigation measures, it must provide specific measures. It cannot defer such measures until some future date or event. `By deferring environmental assessment to a future date, the conditions run counter to that policy of CEQA which requires environmental review at the earliest feasible stage in the planning process." Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 308. See Bozung v. Local Agency Formation Com.0975) 13 Cal.3d 263, 282 (holding that "the principle that the environmental impact should be assessed as early as possible in government planning. "); Mount Sutro Defense Committee v, Regents of University of California (1978) 77 Cal. App. 3d 20, 34 (noting that environmental problems should be considered at a point in the planning process "where genuine flexibility remains "). CEQA requires more than a promise of mitigation of significant impacts: mitigation measures must really minimize an identified impact. "Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. (Citation omitted.) On the other hand, an agency goes too far when it simply requires aproject applicant to obtain abiological report and then comply with any recommendations that may be made in the report. (Citation omitted.)" Defend the Bay v. City of Irvine (2004) 119 Cal. App. 4th 1261, 1276. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 3, February 10, 2014 H. The Project FEIR is Confused and Requires Substantial Revision. Chapter 1, Introduction, identifies the DEIR as a Project EIR. It states that "A Project FIR must examine all phases of a project, including planning, construction, and operation. Future development in accordance with the legislative actions addressed in this EIR is also addressed in this EIR, to the extent possible based on the available information. This Project EIR is intended to provide the environmental information necessary for the City to make a final decision on the requested entitlements for this proposed project. This EIR is also intended to support discretionary reviews and decisions by other agencies." FEIR, page 1 -2. Chapter 1 provides the only discussion of the purpose and type of EIR for the FEIR. Nowhere does it mention that this Project EIR will serve as the basis for subsequent environmental analysis or tiered environmental review. The FEIR contains such concepts for the first time in response to comments that the FEIR's Project Description is inadequate, because it is too vague and engages in piecemeal environmental review. In response, the FEIR for the first time states that: "The Back Bay Landing Project Draft EIR properly complies with CEQA in tiering the analysis of the project's impacts so that the City can `focus upon the issues ripe for decision at each level of environmental review. "' FEIR, page 2 -55. Guidelines section 15152 defines "tiering:" "`Tiering' refers to using the analysis of general matters contained in a broader EIR (such as one prepared for a general plan or policy statement) with later EIRs and negative declarations on narrower projects; incorporating by reference the general discussions from the broader EIR; and concentrating the later EIR or negative declaration solely on the issues specific to the later project." Unfortunately, the FEIR fails to acknowledge that the tiering analysis for the Project requires subsequent and complete environmental review such as a subsequent EIR. The FEIR fails to recognize this requirement: Relative to the commenter's suggestion that if the City does adopt the current Draft EIR as final that it commit to `doing a new or supplementary EIR at a later date prior to beginning construction,'the commenter ignores not only CEQA provisions for tiering but also the fact that several discretionary approvals are required before construction could begin. Section 9 of Chapter 2, starting on page 2 40, lists those future discretionary approvals. These include a Site Development Review by the City of Newport Beach and processing of a Coastal Development Permit (CDP) through the California Coastal Commission. As the Lead Agency, when a Site Development Review or other project specific permit applications are submitted in the future, the City must and will comply with CEQA in determining the appropriate level of CEQA review at that time, including following CEQA section 21094 to examine potential significant effects based on the Site Development Review. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 4, February 10, 2014 FEIR, page 2 -57. However, this commitment to perform the appropriate level of CEQA review at the time of subsequent approvals ignores the requirements of Section 15152: tiering requires the preparation of subsequent EIRs or Negative Declarations. There can be no tiering if there is no subsequent environmental analysis such as a Subsequent EIR. In addition, the Project is not appropriate for tiering: it is not a complicated project which covers various sites and numerous specific projects as in Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal. App. 4th 729. Rather, it is a specific development project on a single parcel of land. The FEIR should analyze the Project fully and not improperly defer analysis for some future time. The FEIR's claim of tiering came only in its Responses to Comments. The public reviewed and commented on the Draft EIR without any thought and without any word in the DEIR that there would be subsequent environmental review. FEIR makes no such commitment. The FEIR's claim of tiering violates CEQA and attempts to cover the inadequate and piecemeal Project Description. This alleged tiering is not years off. According to the February 11, 2014 Staff Report, the Site Development Approvals would be completed within two years with expected occupancy a year later in late 2016 or early 2017. The DEIR is more optimistic: "Construction of the proposed project is anticipated to commence in 2014 and take up to 24 months to complete. The first phase of the construction process would be demolition, site clearing, debris removal, and staging occurring over approximately one month; followed by excavation and de- watering over approximately two months; infrastructure installation and foundation construction for approximately six months; vertical construction for a duration of 15 months; landscaping over approximately three months; Bayside Drive roadway improvements and multi -use trail construction for approximately four months; and reconfiguration of Bayside Village Mobile Home Park over approximately six months. The proposed project is anticipated to be completed by 2016." DEIR, page 4.M -17. Given that construction is set to begin this year, there is no reason to wait for the Site Development Review and other approvals. All of this must occur now. Given this schedule, the FEIR must be revised and the entire Project must be fully described and analyzed, re- circulated for public comment and review, and then hold the hearings on the revised document. III. Section 2 of the dEIR is entitled the "Project Description." CEQA Guidelines section 15124 provides in relevant part: "The description of the project shall contain the following information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact. [¶] (a) The precise location and boundaries of the proposed project shall be shown on a detailed map, preferably topographic. The location of 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 5, February 10, 2014 the project shall also appear on a regional map. This is [¶] (b) A statement of the objectives sought by the proposed project. A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project. [¶] (c) A general description of the project's technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities." In interpreting this requirement, the Court of Appeal emphasized long ago that: "An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." County of Ingo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193 (Emphasis supplied). The Count of lLCourt continued: "Only through an accurate view of the project may affected outsiders and public decision - makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the `no project' alternative) and weigh other alternatives in the balance." Id. at 192 -193. Unfortunately, as discussed below, the FEIR does not provide "[a]n accurate, stable and finite project description." Chapter 2 of the DEIR foreshadows the piecemeal analysis to come: "Bayside Village Marina, LLC, the project applicant, is seeking various legislative and administrative approvals for the future development of a mixed -use bayfront village, Back Bay Landing (the "proposed project ". The proposed project would lead to the development of an integrated, mixed -use village comprising of visitorserving commercial, marine services, and limited residential uses on an improved but underutilized bayfront site on 6.974 acres in the City of Newport Beach." FEIR. 2 -1 (Emphasis supplied). What does this mean: "various legislative and administrative approvals for the future development ?" What does it mean that "the proposed project will lead to the development of an integrated, mixed -use village ?" In plain terms, this means that the "proposed project" or the Project is only a part of a larger project which is the development of an integrated, mixed -use village, which is yet to be proposed or analyzed. The integrated, mixed -use village is a future project which is not analyzed in the FEIR. As the City knows well, this is improper project segmentation under CEQA. In Bannine Ranch Conservancy v. City of Newport Beach (2012) 211 Cal. App. 4th 1209 ( "City of Newport 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 6, February 10, 2014 Beach Banning]" which the City successfully defended clearly addressed the issue of improper project segmentation also known as piecemealing under CEQA. The Court noted that: "`CEQA forbids "piecemeal" review of the significant environmental impacts of a project." (Berkeley Jets, supra, 91 Cal.AppAth at p. 1358.) Agencies cannot allow "environmental considerations [to] become submerged by chopping a large project into many little ones -each with a minimal potential impact on the environment -which cumulatively may have disastrous consequences.' (Bozune, supra, 13 Cal.3d at pp. 283 -284 [EIR required when city annexed land for anticipated development].)' "The California Supreme Court set forth a piecemealing test in Laurel Heights. `We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects." (Laurel Heights, supra, 47 Cal.3d at p. 396.)' `Under this standard, the facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.' Ibid.)" Id. at 1222. The City of Newport Beach [Banning] Court recognized: "The California Supreme Court set forth a piecemealing test in Laurel Heights. `We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.' (Laurel Heights, supra, 47 Cal.3d at p. 396.) `Under this standard, the facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.' Ibid.) Id. The City of Newport Beach [Banning] Court held that the access road challenged by petitioners was not a part of a greater project but was: "But the park's access road is only a baby step toward the NBR project. Certainly it is a much smaller step than the reviewed actions in the `first step' cases. The park project does not take the major step of changing Banning Ranch's zoning to accommodate the NBR project. (Cf. Bozung, supra, 13 Cal.3d at pp. 269 -270 [annexing land for rezoning and development]; City of Carmel -by- the -Sea v. Board of Supervisors, supra, 183 Cal.App.3d at p. 244 [rezoning land for "specific development project "].) Nor is the park being built to induce Banning Ranch's development -the NBR project has already been planned. (Cf. Antioch, supra, 187 Cal.App.3d at p. 1337 [road and sewer was "catalyst" for future development].) The access road furthers the NBR project, but relatively modestly. (Cf. Laurel Heights, supra, 47 Cal.3d at p. 398 [initial relocation into one -third of building].) Expanding the park access road into Bluff Road will still require an enormous undertaking, doubling the number of lanes and extending it thousands of feet to 19th Street. And the NBR project is much more than just Bluff Road; 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 7, February 10, 2014 that road will service 1,375 new residential units, 75,000 new square feet of commercial space, and a new resort hotel. The access road is consistent with the NBR project, no doubt. But it is a stretch to say the NBR project is a consequence of the access road. Id. at 1225 -1226. Here, it is different. That is, the Project with its "various legislative and administrative approvals for the future development' "will lead to the development of an integrated, mixed - use village." This is exactly what the Court recognized as illegal piecemeal analysis under City of Newport Beach [Banning]. None of this larger project is analyzed in the DEIR/FEIR. The Project will, in the words of the FEIR, "lead to" a larger project that is not analyzed in the DEIR/FEIR. Under City of Newport Beach [Banning], that is illegal and improper piecemealing or Project segmentation under CEQA. But that is not where it ends. The Project as described includes several other segments not analyzed in the DEIR. For instance, the DEIR notes: "No land use or physical changes to this waterside portion of Parcel 3 are proposed as part of the subject entitlement applications (however, it should be noted that a future project may include a small inlet channel from the existing Bayside Village Marina to allow for boat launching at a proposed future dry -stack boat storage facility, which would be subject to Site Development Review at such time a specific project is proposed)." DEIR, 2 -1. The Site Development Review will be deferred until well after approval of the Project and certification of the DEIR. However, it is clear that the boat launching project is part of the Project. Indeed, the DEIR recognizes that this boat launching facility is already a part of the Project. "As noted above, a small water inlet with a retractable walkway bridge is proposed to provide for the launching and storage for boats housed within the dry stack boat storage facility. The design of the inlet is intended to minimize public walkway access conflicting with boat launching operations, and would provide a focal point of visitor interest." DEIR, 3 -1. Hence, the DEIR/FEIR confused and confusing: what is the status of the boat launching facility? The DEIR/FEIR must be revised and recirculated to clarify this confusion. Further, "The balance of the 6.974 -acre project site, 0.642 acres (27,966 square feet), are designated as Recreational and Marine Commercial Area (Planning Area 2) and are located under and immediately south of the Coast Highway bridge. Although this 0.642 -acre contiguous parcel is not part of the requested land use amendments, it would be developed consistent with the current Recreational and Marine Commercial General Plan and Coastal Land Use Plan designations. This 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 8 - February 10, 2014 0.642 -acre area is also included in the Back Bay Landing PCDP (PC -9) boundaries and development standards." DEIR, 2 -2. Given that the 0.642 acres will be developed as part of the Project, the FEIR must analyze the environmental impacts of this Project feature. Unfortunately, the FEIR fails to provide adequate analysis. It must be revised and recirculated for public review and comment. In addition, the DEIR describes the Project's components which include: "The proposed project consists of the requested legislative approvals (GPA, CLUP, PC Amendment) for the project site, as well as requests for administrative approvals of a LLA and Traffic Impact Analysis (TIA). Project- specific administrative approvals (e.g., Site Development Review, CDP [Coastal Development Permit], and Harbor Permit) will be processed at a future date." DEIR, page 2 -3 However, these administrative approvals are part of the Project and yet the FEIR fails to analyze these components because they are not yet certain. However, as indicated above, the FEIR incorporates the boat launching component without any approvals for this boat launching component. Indeed, the Site Development Review and the Coastal Development Permit provide Project specific information about the Project. These must be analyzed in the DEIR. Further, under existing site conditions, the DEIR recognizes that the "over 45 year old" Orange County Sanitation District ( "OCSD ") pump station is "adjoining" "the southwest portion" of Planning Area 1 also known as Parcel 3 (it gets more confusing; this is a serious flaw in an informational document such as the FEIR). Please note that Figure 2 -3 accurately portrays this adjoining use and condition: It almost bisects Planning Area No. 1 or Parcel 3. Also, the DEIR fails to recognize that, instead of an "over 45 year old" pump station, the Bitter Point Pump Station was completely rehabilitated in 2012. See Exhibit "A" which is a copy of the Notice of Completion of this work which is described as: "Total replacement of the existing Bitter Point sewage Pumping Station with a new and upsized 39.43 million gallons per day pump station. Construction of the new pumping station included a below -grade wet well and drywell. and an above -grade electrical room. Major Process equipment included installation and construction of 5 main sewage pumps, 1 generator set, 1 new chemical addition system, and civil yard piping work. Other major work included installation of a new fiber optic cable from the new Bitter Point Pump Station to OCSD's Plant No. 2." Obviously, the DEIR's characterization of the Bitter Point Pump Station as "over 45 year(s) old" is very misleading and must be revised. Moreover, the Orange County Sanitation District's comments propose that the Project's impacts require mitigation: relocating the pump station. See Comment F -2. The FEIR's response admits to the piecemeal analysis: 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - 9 - February 10, 2014 "The proposed Planned Community Development Plan (PCDP) allows for the future relocation of the pump station within Planning Area 1 as part of future project implementation; however, should this occur, the exact location ofthe relocated pump station would be determined once a specific project design is brought forth." Response to Comment F -2, FEIR, page 2 -37. What is the impact of the Project on the Bitter Point Pump Station or likewise what is the impact of the Bitter Point Pump Station on the Project including the residential users on Planning Area 1 or Parcel 3with their residential components? We will address this below in our comments on the Project's impacts on air quality and hazards. Further, Section 2 recognizes that surrounding uses of the Project area, Parcel No. 3 also known as Planning Area No. 4, is the "recreational uses within the Newport Dunes Resort." However, this is inaccurate. As the City well knows, Parcel No. 3 aka Planning Area No. 4 is adjacent to the Dunes "Family Inn" site also known as Parcel C on the Newport Dunes Map attached hereto as Exhibit `B" from the July 22, 2012 Staff Report to the City Council, Attachment CC2. As indicated above, the Project includes several legislative actions including a General Plan Amendment, a Coastal Land Use Plan Amendment, and a zone code change or a planned community text. The DEIR states that: "The proposed General Plan Amendment would change the existing 6.332 ]acre portion of the project site designated as Recreational and Marine Commercial (CM 0.5) consisting of the proposed Mixed -Use Area (Planning Area 1), Private Marina Access and Beach (Planning Area 3), and Marina and Bayside Village Storage and Guest Parking (Planning Area 4) to Mixed -Use Horizontal 1 (MU -Hl) by reallocating unused residential density from Parcels 1 and 2 (i.e., the existing Bayside Village Mobile Home Park) to Parcel 3 of Parcel Map 93 ] 111. All three parcels are owned by the project applicant and are within the same General Plan Statistical Area (Statistical Area K -1, see further discussion and Figure 25, Statistical Area K -1 Boundary, below)." DEIR, page 2 -8. Although the existing density of the Bayside Mobile Home Park (the `BMHP ") is 270 residential units, the General Plan allows the area a higher density based upon the size of the parcels. But the BMHP does not have any vacate spaces: it is fully used. So, as discussed below regarding Project impacts including traffic impacts, this is simply a plan not existing units. As a part of the GPA, the Project creates yet another set of General Plan Anomalies: Anomaly Nos. 80 and 81. The FEIR notes that: "The purpose of Anomalies in the Land Use Element of the Newport Beach General Plan is to identify and set General Plan development limits on individual properties by capping residential unit (density) and nonresidential floor area (intensity) yield below otherwise higher density/intensity allowances." 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council _10- February 10, 2014 FEIR, 2 -8. However, this conflicts with the stated purposes of the Anomalies Table presented to the Council and submitted to the voters in 2006. The June 27, 2006 Staff Report to the City Council stated: "The draft plan also includes the Anomaly Table (A2 in the draft, although staff recommends it be moved to the body of the Land Use Element) which is necessary given the large number of site specific densities or square footage limitations. Page 5. That is, the Anomaly Table was necessary to accommodate existing site specific densities or square footage limitations, not to impose new limitations on parcels within the City. For instance, the June 27, 2006 Staff Report states: "Commercial properties with square footage limitations have generally been added to the Anomaly Table and have been identified on the map with a circled number." Page 6. Or again, "Like the Commercial designation, any specific FAR's will either be depicted on the map or in some cases be included in the Anomaly Table." Id. Again, this is existing specific floor area ratios. However, the Anomalies Nos. 80 and 81 do two things which are not existing today and not analyzed in the 2006 General Plan EIR. First, it entitles and creates the ability to transfer of 49 dwelling units (du's) to the Project. (It does not create the transfer, because, as discussed below, Newport Beach Municipal Code ( "NBMC ") section 20.46 is never satisfied with the Project.) Second, it entitles Anomaly 81, a non - Project site, with an additional 26 do's which are not existing and which are not allowed under the current General Plan. All of this is done without adequate environmental review. In addition, the Project requires an amendment to the Coastal Land Use Plan which is not warranted and is not supported by substantial evidence. The DEIR states that Section 2 of the CLUP would be amended with the Project to provide: "The site would accommodate the development of an integrated, mixed -use waterfront project consisting of coastal dependent and coastal related visitor - serving commercial and recreational uses allowed in the current CLUP CMA and CMB designation, while allowing for limited freestanding multifamily residential and mixed -use structures with residential uses above the ground floor. Residential development would be contingent upon the concurrent development of the above - referenced marine - related and visitor - serving commercial and recreational facilities, including the enclosed dry stack boat storage facility and completion of a new public bayfront promenade connecting with Bayside Drive and Newport Dunes /County trails." Page 2 -11. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - I1 - February 10, 2014 However, until the Site Development Review is conducted, and subjected to public hearing and review, none of this is assured or guaranteed. Further, the California Coastal Commission must approve this amendment with the introduction of non - visitor serving residential uses without any mitigation or off set. Moreover, the Project proposes to amend the coastal height limit of 35 feet to allow for: "A single, up to 65 -foot tall coastal public view tower, that will be ADA compliant and publicly accessible, to provide new coastal and Upper Newport Bay view opportunities where existing views are impacted by the East Coast Highway Bridge, other existing structures and topography." DEIR, page 2 -12. This raises several issues, all of which are unresolved in the DEIR/FEIR and its vague Project description. First, how wide is this 65 -foot public view tower which will have an elevator? Exactly, how tall with the structure with elevator be? Neither the Project Description nor the Project documents including the Back Bay Landing Planned Community Development Plan ( "PCDP ") and the Guidelines contained therein provide any of this detail, because that awaits the second part of the Project: the Site Development Review approval. Given that the tower extends over 30 feet higher than the height limit, the DEIR/FEIR must provide more definition and description than a 65 foot public view tower which will be ADA compliant. Second, the DEIR fails to recognize that the Project itself creates the need for this Project feature: as discussed below, the Project will impact a scenic highway and will adversely affect views to Newport Bay and from view locations to the Project site. The Project also includes a curious zone change to the Planned Community 9 (PC -9) for a little over one half acre of land. The DEIR states: "Although this 0.642 ]acre contiguous parcel is not part of the requested land use amendments, it would be developed consistent with the current Recreational and Marine Commercial General Plan and Coastal Land Use Plan designations. This 0.642 acre area is also included in the Back Bay Landing PCDP (PC -9) boundaries and development standards." DEIR, page 2 -12. It is unclear why, if the current General Plan designations remain, there is any need to change the zoning. What will change? The DEIR states that: "The purpose of the PCDP is to establish appropriate zoning regulations governing land use and development of the site consistent with the City of Newport Beach General Plan and Coastal Land Use Plan. The PCDP provides a vision for the land uses in the site and sets the development limits, allowed land uses, development standards and design guidelines that would guide the next level of approvals at the Site Development Review and Coastal Development Permit approval process, as well as the long term operation of the developed site. The regulations would also guide the future project applicant and community's expectations." 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -12- February 10, 2014 Page 2 -13. Unfortunately, nothing in the PCDP provides any detail other than suggestions regarding height, square footage, residential du's, and very general and vague standards for development. It provides no standards to guide "the future project applicant and the community's expectations." It is simply too vague to do that. For instance, probably the largest structure will be the parking structure. But none of the Project documents including the PCDP provide the number of parking spaces for that structure. It only provides the standards to calculate the parking requirements once the uses are determined. No one knows exactly how large the parking structure will be. Also, the DEIR states: "As described in the PCDP, a parking structure would be designed to allow access from the entry grade to three levels above grade, providing another opportunity for elevated coastal view opportunities of the bay and surrounding coastal vistas. Parking levels and spaces would be designated for the existing marina, enclosed dry stack boat storage tenants, and visitor - serving retail uses, as well as additional Bayside Village Mobile Home Park guest parking. The semi - subterranean parking level would be secured and designated solely for the Back Bay Landing residential units." Page 2 -14. As discussed below, this raises several problems. First, the statement that the structure will have an "entry grade to three levels above grade" is unclear. Presumably, this means that the structure will be four stories high. The FEIR regards this height and mass a benefit because it is "providing another opportunity for elevated coastal view opportunities of the bay and surrounding coastal vistas." Id. If this large structure will provide such viewing opportunities from the top floor, then it will impact views from other areas including the residential areas across the Bay and Channel. Also, the PCDP states the reason for this semi - subterranean level is "to minimize height and bulk of parking structure." PCDP, page 25. Yet, nowhere does the PCDP nor the DEIR/FEIR discuss the exact bulk of this structure which needs to be minimized. Of course, this semi - subterranean level is required only "if feasible." Given that the depth to groundwater in this part of the Back Bay is quite high, it seems unlikely that this subterranean level will be feasible. Hence, the parking structure will be huge and will have aesthetic and other impacts. However, if the subterranean level is feasible, then it likely will have impacts on hydrology because it will intercept the high groundwater in the area. Because the residential dus and commercial square footage wrap around the parking structure, the size of the entire building will have impacts. But again, the DEIR/FEIR and the DCDP provide that the Project: "would allow for coastal dependent and coastal related uses, including up to 61,534 square feet of visitor ]serving retail/ restaurant/marine boat sales, rental and service repair and recreational commercial (kayak and stand -up paddle board rentals); a new 32,500 square foot full - service enclosed dry stack boat storage with racks or bays (up to a maximum of 140 boat spaces) and launching facilities; as well as a maximum of 49 residential units within a maximum of 85,644 square feet integrated in either two levels of residential over ground floor commercial uses, wrapped around a 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -13- February 10, 2014 parking structure with three levels above ground and one semi - subterranean level, or in a three level flat configuration adjacent to the northwest bayfront." Page 2 -13. Although neither the DEIR/FEIR nor the PCDP provide for a limit on the square footage of this retail, residential, parking structure, it will be massive. As discussed below, this bulk will have significant impacts. The DEIR provides as Figure 2 -6 a "Conceptual Site Plan." This means that it is simply the concept; it is not regulatory at all. The Project requires much more specification so that the public, public officials and the developers all share the same vision and expectations. Of course, this Conceptual Site Plan is nothing but a plan. It may change with the other part of the Project: the Site Development Review approvals. This should all be analyzed in the DEIR/FEIR: it is a part of this Project. The DEIR suggests that: The PCDP establishes various development standards regulating setbacks, building heights, residential units, parking, landscaping, seawalls/bulkheads, diking and filling /dredging, bayfront promenade /trail, vehicular circulation, lighting, signs, utilities, sustainability features, and public improvements. The various development standards are discussed individually below. Page 2 -16. Unfortunately, various little of these standards are regulatory. For instance, the DEIR explains the landscaping standard: "A detailed landscape and irrigation plan prepared by a licensed landscape architect will be required for future development on -site and submitted as part of a future Site Development Review application." Page 2 -21. This is not a standard: it is impermissible deferral of this crucial Project feature. Regarding parking, the DEIR states: "The conceptual parking plan for the future development of the site is illustrated below in Figure 28, Parking Plan. Page 2 -20. It continues: "Off- street parking requirements provided in Table 2 -3 above may be reduced with the approval of a Conditional Use Permit based upon complimentary peak hour parking demand of uses within the future development." Id. Again, a conceptual parking plan with a parking management plan where parking may be waived. All of this is part of the Project. CEQA requires that all of this be analyzed in the FEIR. The DEIR/FEIR fails to provide sufficient details for full environmental review. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -14- February 10, 2014 The DEIR discusses the `Bayfront Promenade." The Promenade is located next to Newport Bay, but neither the DEIR/FEIR nor the PCDP discuss the materials and drainage for this waterfront feature. The materials must be pervious so that drainage is not discharged into the Bay. The Project Description is inadequate: it improperly segments the Project in several different ways; and it lacks specifics so that elected officials, the public and the developers /applicant can understand the nature and extent of the Project. The DEIR/FEIR must be revised and recirculated for public comment and review to correct these deficiencies in the Project Description. III. The Cumulative Impacts Projects are Incomplete and Must be Revised. Chapter 3 is entitled "Basis for Cumulative Analysis." CEQA Guidelines section 15130 discusses the requirements of the cumulative impacts analysis. It requires two methods of analyzing cumulative impacts of the Project and other projects: a list of past, present and probable future projects; or a summary of projections contained in the General Plan. The DEIR uses a combination of both methods. Unfortunately, the list does not include the future project that is the update of the Land Use Element for the City. This project began in the summer of 2013, months before the release of the DEIR for the Project. Chapter 3 and the DEIR/FEIR must be revised to list this present project, conduct a full cumulative impacts analysis for the DEIR/FEIR and recirculate the document for public review and comment. IV. Chapter 4, the "Environmental Analysis," A. Introduction: the Project Description Undercuts the Impacts Analysis. As discussed above, the Project Description is the key to any EIR. Unfortunately, the DEIR/FEIR's Project Description is segmented, vague and overly general, and fails to comply with the requirements of CEQA. Because Chapter 4 assesses the impacts of this inadequately described Project, Chapter 4 fails to provide a thorough and adequate assessment of the impacts of the Project. B. The Project's Substantial Aesthetics Remain Unanalyzed and Unmitigated. Section 4 A addresses the Project's Aesthetic Impacts. Unfortunately, it is misguided and incomplete analyze, and leaves significant aesthetic impacts without mitigation. In discussing the Environmental Setting, the DEIR ignores important aesthetic considerations and fails to recognize important aesthetic restrictions for the Project Site. First, under the Regulatory Framework, the DEIR recognizes that the Project is in the Coastal Zone. The DEIR states: "The California Department of Transportation (Caltrans) defines a scenic highway as any freeway, highway, road, or other public right -of -way, that traverses an area of exceptional scenic quality. Suitability for designation as a State Scenic Highway 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -15- February 10, 2014 is based on vividness, intactness, and unity. There are no officially designated scenic highways within the City of Newport Beach." DEIR, page 4.A -1. This is true. The only designated scenic highway in Orange County is the beautiful stretch of highway 4.2 miles long from State Route 55 to east city limit of Anaheim. See http: / /www.dot.ca. og v /hq /LandArcti/seenic /schwa . One wonders why this stretch of highway with views of the Santa Ana River channel is scenic when the views from Coast Highway over the Project site to the upper and lower Newport Bay is not so designated. Nonetheless, although the FDIR fails to recognize it in the discussion on page 4A -2, the City's General Plan officially designated much of Coast Highway as a Coastal View Road including the stretch of East Coast Highway from Bayside Drive to Dover Drive which is in the vicinity of the Project. In its discussion of existing conditions, the DEIR recognizes that this portion of East Coast Highway is a Coastal View Road. See DEIR, page 4A- 6. In addition, although the DEIR recognizes that the Project site is under utilized, Section 4.A states that the Project site has nighttime lighting including street lights and building facade lighting. This is an exaggeration. The Project site contains little lighting compared to the Project's lighting, glare and spill. In order to analyze the aesthetic impacts of the Project, the DEIR uses visual simulations of the Conceptual Plan which is merely a painting; it is not regulatory as discussed above. This undercuts the accuracy of the DEIR's analysis of the Project's aesthetic impacts. More importantly, the mass and height of the buildings will impact views. The Applicant should provide a story pole analysis of the Project dimensions. In Response to Comment I -2, the FEIR states: "For example, the analysis presented in Section 4.A, Aesthetics/Visual Resources, of the Draft EIR relies in part on visual simulations that were prepared for a conceptual project based on the development standards and design guidelines contained in the proposed PDCP, which are considered representative of a future project given the allowable density, setbacks, building heights, architectural styles, and other design elements that would be implemented as part of future development." FEIR, page 2 -55. However, the City well knows the limitations of such conceptual plans. In 2011, the City adopted a conceptual plan for Lido Village and later adopted Guidelines for that development. All of this occurred without environmental review. Further, in December 2012, the City released an italicized original of the Mitigated Negative Declaration for a similarly vague project, the City Hall Re -Use Project. The Planning Commission was very critical of the vagueness and recommended that the City wait until it had a developer and a precise project. However, Staff never responded to all comments on the DMND, never issued a Final MND (only a Final Draft MND), never took the MND to the City Council, and of course, it was never certified. Now, the concept plan is gone, and the City has decided go forward with the Lido House Hotel which has begun environmental review. The Applicants and the City would do well to follow this example: the FEIR cannot be certified. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -16- February 10, 2014 Because conceptual plans for the Back Bay Landing, like the conceptual plan for Lido Village, are not regulatory, they mean nothing. They can change on a whim. Environmental review based on such concept plans is worthless. Aesthetic analysis is particularly bad because the concept plan does not show actually how the mass and size of the structures including the parking structure, the view tower, the residential structures and the retail space. In Response to Comment N -18, the FEIR states: "As stated on pages 4.A 10 and 4.A I 1 in Section 4.A, Aesthetics/Visual Resources, of the Draft EIR, effects on private views are not considered significant under CEQA, though the Draft FIR does acknowledge that future development of proposed uses could partially obstruct private views at some locations." FEIR, page 2 -93. However, the Court of Appeal has disagreed: "Thus, aesthetic issues, such as public and private views, are properly studied in an EIR to assess the impacts of a project. (§ 21100, subd. (d); Ocean View Estates Homeowners Assn., [493] Inc. v. Montecito Water Dist. (2004) 116 Cal.AppAth 396, 402 -403 [10 Cal.Rptr.3d 451].)" Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal. App. 4th 477, 492 -493 (Emphasis supplied). Because the FEIR admits that the Project will have unmitigated aesthetic impacts, it must identify these impacts, propose adequate mitigation, and be recirculated for public review and comment. In Response to Comment N -19, the FEIR discusses the lighting requirements for the tower as set forth in the PCDP and notes that there will be subsequent Site Development Review. This means several things. First, the PCDP does not really regulate lighting. It simply defers the analysis. Second, again, the FEIR admits the project segmentation. Moreover, the Project is below and around many residences. These residences will be affected by any nighttime lighting of the tower or other features of the Project. The FEIR should be revised to discuss these impacts, propose mitigation and be recirculated for public review and comment. Impact No. 4.A -1 asks if the Project will have an impact on scenic vistas. The DEIR minimizes the scenic character of East Coast Highway in the vicinity of the Project. As noted above, the simulations are worthless. A superior method to assess aesthetic impacts are the use of story poles which the City should require for this Project. Nonetheless, assuming that the simulations are somewhat accurate, Simulation No. 7 shows that the Project will impair views of the Bay from East Coast Highway, a scenic roadway. This is a significant aesthetic impact which must be analyzed and mitigated. Further, Comment C -4 noted that the tower which exceeds the Shoreline Height limits will affect coastal views. As indicated above, the PCDP contains no limitation on the breadth or mass of the tower. As indicated in the FEIR, its analysis is the worst case scenario: on the worst case scenario, a broad and high tower will significantly affect coastal views. As Comment C -4 urges, the FEIR must be revised to include an alternative with the tower within the current height limits. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -17- February 10, 2014 The Project will have significant aesthetic impacts. The DEIR/FEIR must be revised to analyze such impacts, must propose mitigation and alternatives to avoid such impacts, and must be revised and recirculated for public review and comment. C. Section 4.B of the DEIR attempts to address the Project's impacts on Air Quality. It fails. First, as indicated above, given that the exact character of the Project remains unclear, it is impossible to assess the construction impacts or the operational impacts of the Project on Air Quality. Second, the DEIR throughout characterizes the Project site variously: sometimes it regards the Project site a underutilized. Other times, it regards it as: "Given the developed nature of the project site and the absence of native habitat or sensitive species on the site, the evaluation ofterrestrial biological resources focused on potential impacts to nesting migratory birds due to tree removal in association with construction activities." DEIR, page 4.0 -13. If the site is developed, then demolition activities will be significant and will likely generate substantial air quality impacts. However, Section 43 does not seem to appreciate the developed character of the site and erroneously concludes that such activities will not generate Air Quality impacts. Third, as noted above, the Project is adjacent to the OCSD's Bitter Point Pump Station. The presence of the Project next to this sewage pump station will have Air Quality impacts, because it will expose Project residents, shoppers and diners to offensive odors. The DEIWFEIR fails to provide a full analysis of this impact. Impact No. 4.B -5 addresses whether the Project will "create objectionable odors affecting a substantial number of people." The DEIR concludes that the Project will not create such odors. Regarding the Bitter Point Pump Station, which as indicated above was completely rehabilitated in 2012, the DEIR states: "Since the project site is adjacent to the OCSD wastewater pump station, the PCDP requires that the future development project be required to install odor filters, such as activated carbon filters or similar, to filter the indoor air in air conditioned spaces within the development and alleviate any potential odors associated with the facility. This requirement would reduce the potential for nuisance odors in indoor air to a less than significant level." DEIR, page 4.B -33. However, a requirement to filter indoor air does nothing to mitigate the impact caused by the Project bringing residents, shoppers, and diners including outdoor diners in the vicinity of a sewage pump station. The Project will create air quality impacts which are not mitigated. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -Is- February 10, 2014 As indicated above, in Comment F -2, OCSD expressed concerns about these impacts and about the problems these will cause for its operations. Response to Comment F -2 noted that relocation of the pump station is allowed but not required by the PCDP. This creates several problems. First, the PCDP and the FEIR recognize that this is a serious impact which requires mitigation. Second, because the PCDP does not require relocation of the pump station, the impact remains unmitigated. The FEIR should be revised to address this serious air quality impact: No one likes being near a sewage pump station. Placing residential, retail, and outdoor restaurant uses in the vicinity creates a significant impact which requires mitigation. Because of these unaddressed impacts on Air Quality, the DEIR/FEIR must be revised and recirculated for public review and comment. D. Section 4.0 of the DEIR addresses Biological Resources. The DEIR recognizes that the area has a wealth of biological resources. The Project Site is partially within the Upper Newport Bay Marine Conservation Area ( "MCA "). Comment I -3 noted that Project construction would likely adversely affect eelgrass resources in the area and recommended instituting a monitoring program during construction so that any construction impacts could be minimized. Response to Comment I -3 states: "The buoy locations will be based on the results of the pre construction eelgrass survey completed during the eelgrass growing season (generally March through October) and in compliance with the Southern California Eelgrass Mitigation Policy (SCEMP), or other applicable plan. Additional monitoring may be coordinated with the regulatory agencies during the project' entitlement process, but at this time no additional eelgrass surveys are being proposed during construction." DEIR, page 2 -58. This is curious language: the DEIR is part of the entitlement process and the City is a regulatory entity for this Project. What needs to be coordinated? Obviously, the Project with its new launching facility and bulkheads has the potential to damage eelgrass resources during construction. The City has an active eelgrass management program. The City as a regulatory agency should require additional monitoring during construction to avoid construction activities damaging scarce eelgrass resources. Comments E -3 through E -4 notes that the DEIR fails to identify precisely Project impacts to waters of the United States and wetlands. Response to Comments E -3 to E -4 simply states that it is too early to identify those resources because this awaits the further entitlement process: it awaits the other piece of the Project. Again, the FEIR's piecemealing of the Project undercuts the impacts analysis. Moreover, given that the FEIR states that it is analyzing the worst case scenario, Response to Comment I -2, FEIR page 2 -55, then the FEIR must be revised to assume maximum Project impacts to wetlands and jurisdicational waters. These will be extreme given the water front development, substantial additions of hardscape, the construction of the bulkheads and the boat launching facility. The FEIR must be revised to study the impacts of the full Project in the worst case scenario, analyze the severity of those adverse impacts, and propose adequate mitigation. Of 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council _19- February 10, 2014 course, in order to do this, the FEIR must be revised and recirculated for public review and comment. Comment E -5 expresses concerns about the construction impacts on coastal resources and shellfish; Comment E -6 asks about the impacts of the dredging and other construction activities given existing pollutants in the Bay. As before, Response to Comment E -5 states that this must await further Project specification; Response to Comment E -6 states: "Given that the various offshore habitats are subject to ongoing natural processes that change the extent and location of each habitat type over time, as well as the lack of specific information about future development on site, it is not appropriate to speculate on the specific potential effects of the future project on such resources in the EIR." FEIR, page 2 -32. This is incorrect. The DEIR/FEIR is analyzing the "worst -case scenario." The FEIR does not engage in speculation on such an analysis; the analysis is incomplete because it is not performed. Further, Guidelines section 15144 provides: "Drafting an FIR or preparing a Negative Declaration necessarily involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can." The City must do the appropriate forecasting of impacts. The problem here is that the FEIR fails to conduct the appropriate studies regarding resources and pollutants in the vicinity of the Project. Moreover, since the FEIR uses the worst case scenario analysis, it must assume maximal impacts to shellfish and pollutants in the Bay, and then propose adequate mitigation measures. Comment I -4 addresses the need for a 100 foot buffer between the Project and jurisdictional wetlands. Response to Comment I -4 is unusual: "The facts documented in the Draft EIR demonstrate that no significant wetland impacts will occur and there will be no significant impacts to organisms using the wetlands. Therefore, no additional buffer is required to protect the biological integrity of the wetlands and the project is consistent with the purposes of the buffer articulated in the guidance document attached to the continent." FEIR, page 2 -59. Given that throughout when pressed with details about protecting biological resources and wetlands, the FEIR states that it is too early to determine because the exact character of the Project is not known. But here the Project is known, the "facts" are known and there is no reason for a 100 foot buffer. Response to Comment I -4 continues in this unusual vein: "The project is consistent with Coastal Land Use Plan Policy 4.2.2 3, which provides that smaller wetland buffers may be allowed where it can be demonstrated that a 100 foot wide buffer is not possible due to site specific constraints and the narrower 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -20- February 10, 2014 buffer would be amply protective of the biological integrity of the wetland given the site specific characteristics of the resource and of the type and intensity of disturbance. Given the developed nature of the project site and existing proximity to potential wetland resources, the associated lack of undeveloped land adjacent to the waterfront that could be utilized for a buffer area, the limited nature of project related physical impacts to the majority of the waterfront (aside from the proposed water inlet), and the fact that providing such a buffer would render the project infeasible, it is determined that a 100 foot wide buffer is not biologically required nor is it possible to implement such a buffer and meet the project objectives, due to site specific constraints." Id. Since the exact character of the Project is unknown to the drafters of the DEIR/FEIR, it is unclear how any site specific constraints could affect the Project and be used as a justification for cutting the need for the 100 foot buffer. This cuts the exact opposite of the way indicated in the DEIR/FEIR. Given the uncertainty of the Project and the fact that the FEIR uses the "worst- case" scenario, the 100 foot buffer is necessary because the Project may endanger wetlands and it is unclear that there are any site specific constraints that will justify cutting back on the buffer. E. The Project Site has a high groundwater table which varies due to tidal influences. The Study indicated that depth to groundwater was as high a six feet below ground surface. The partially subterranean garage is not feasible at these depths and should be eliminated from the Project. That is, the Project's parking structure will be high and massive and will sit at grade. In addition, due to this high groundwater, the Project site will be subject to liquefaction. This is an impact on geology and soils. The DEIR indicates that the Project will comply with building standards for such hazards. Nonetheless, the DEIR/FEIR does not include a full study of such dangers. It should be revised to include such a study. In order to address both of these issues, the DEIR/FEIR must be revised and recirculated for public review and comment. F. The DEIR admits that, because the Project will require amendments to the General Plan, the Local Coastal Plan and Zoning Code, the Project is not consistent with current land use requirements. However, it maintains that, because it seeks to amend these requirements, the Project will be consistent with the amended regulatory requirements. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -21- February 10, 2014 This puts the cart before the horse. The question is: is it a good idea to amend the General Plan, the Local Coastal Plan and Zoning Code, and to allow the transfer of residential do's to the site? The DEIR does not answer these questions. Indeed, Comment C -2 recognizes that residential do's in the Coastal Zone are a lower priority than other visitor serving uses and suggests that other visitor serving uses including vacation stay or hotel be considered at the site. The Response to Comment C -2 ignores this suggestion and again relies on its familiar refrain that it is too early to tell. The City should take Comment C -2's suggestion seriously and revise the FEIR to include an alternative with visitor serving hotel uses rather than residential uses. Moreover, the question raised here is: is it good policy to grant all of these changes to allow limited residential du's together with retail and restaurant. Similar uses adjacent to each other have caused conflicts all over the City including the Balboa Peninsula. In addition, neither the FEIR nor the DEIR discuss the findings necessary for such a transfer. Section 20.46.050 of NBMC requires the following findings for such transfers: "When approving a transfer of development intensity the Council shall make all of the following findings: A. The reduced density /intensity on the donor site provides benefits to the City, for example: 111. The provision of extraordinary open space, public view corridor(s), increased parking, or other amenities; "2. Preservation of an historic building or property, or natural resources; "3. Improvement of the area's scale and development character; "4. Reduction of local vehicle trips and traffic congestion; and "5. More efficient use of land. `B. The transfer of development rights will not result in any adverse traffic impacts and would not result in greater intensity than development allowed without the transfer and the proposed uses and physical improvements would not lend themselves to conversion to higher traffic generating uses; "C. The increased development potential transferred to the receiver site will be compatible and in scale with surrounding development and will not create abrupt changes in scale or character; and "D. The receiver site is physically suitable for the development proposed taking into consideration adjacent circulation patterns, protection of 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -22- February 10, 2014 significant public views and open space, and site characteristics, including any slopes, submerged areas, and sensitive resources." The City cannot make any of these findings. Creating the two new General Plan Anomalies, Nos. 80 and 81, will increase the densities on both sites, not decrease densities. It will not protect a historic building, reduce traffic on the sending site (it will increase traffic). It will not improve the area's scale and developmental character: the proposed Project is out of character with the surrounding uses; none of them is at 35 feet with the exception of the new project at the corner of Coast Highway and Dover Drive known as Mariner's Point. This project itself shows how out of character the Project will be. Traffic will get worse with the transfer. The increased development potential at the Project site will create abrupt changes and scale and character. As discussed above, the FEIR maintains that a 100 foot buffer is not necessary because of site specific constraints. However, the transfer creates these constraints, and therefore the Project does not quality for the transfer. To allow the transfer will violate the NBMC and will create substantial and unanalyzed land use of impacts. The DEIR/FEIR to analyze these impacts, provide mitigation and /or alternatives. Because of these land use impacts which remain after mitigation, the DEIR/FEIR must be revised to consider and analyze fully the Project's land use impacts, to propose necessary mitigation and/or alternatives, and to receive additional public review and comment. G. The Introduction of Residential Uses, Retail. Restaurant and Other Commercial Uses at the Project Site Will Create Significant Noise Impacts. The City has already experienced significant noise impacts as a result of commercial and restaurant activities at the Dunes Resort site which is adjacent to the Project Site. The City knows that the Project has the potential to create noise impacts at residential areas in Dover Shores and in Upper Castaways. Neither the DEIR nor the FEIR deal with these sensitive receptors and the potential for the Project to adversely affect these off site residents. The DEIR does provide for a sound study later and noise attenuation for Project residents. This is insufficient. The PCDP should require noise monitors be installed at the perimeter of the Project site with a person or guard who is charged with monitoring off site noise. The PCDP should require that if noise rises above levels allowed by the NBMC, that noise source shall immediately cease. Future violations would give rise to a prohibition of noise generation at the site. Also, the PCDP should prohibit amplified music and entertainment on the Project site and prohibit all live entertainment. H. The Project Will Create Significant Traffic Impacts Which Undercut the Entire Project. As noted above, the FEIR retreats when asked specifics about the Project. Unfortunately, the Traffic Analysis requires specifics in order to forecast Project traffic and trips. The Project includes various legislative approval including the creation of two General Plan Anomalies Nos. 80 and 81. As indicated above, this is an incorrect approach: creating Anomalies for new uses was not contemplated by the 2006 General Plan. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, Mayor Members of the City Council -23- February 10, 2014 Nonetheless, although the Section 4.M and the Traffic Impact Analysis, Appendix K discuss the traffic impacts of Anomaly No. 80 on the Project Site, they ignore the traffic generated by the new Anomaly No. 81 with its additional 21 do's not currently existing. Nowhere does the traffic analysis discuss these new 21 do's and the traffic that will be generated by those units. Moreover, Appendix C for the Mariner's Pointe Mitigated Negative Declaration entitled "Traffic Impact Analysis" shows that the existing traffic at Dover and Coast Highway function at Level of Service ( "LOS ") "C" during afternoon peak hour trips whereas the Traffic Impact Analysis for the Project indicates that it functions at LOS B. Exhibit "C" attached hereto is an excerpt from the Traffic Impact Analysis for the Mariner's Pointe MND. This discrepancy must be resolved. Moreover, it is unclear whether the DEIR or the Traffic Impact Analysis fully appreciated the impacts of the Project, the Mariner's Pointe Project, and the new Dunes Hotel project in its traffic forecasts. With two new projects bringing traffic onto a small street such as Bayside Drive and Mariner's Pointe down the way, traffic improvements on Coast Highway and Bayside Drive must occur. Unfortunately, neither the DEIR nor the FEIR provide any basis for such improvements. This cannot be right. The FEIR must be revised to address the full traffic impacts of the Project, provide mitigation or alternatives, and recirculate the document for public review and comment. Finally, we must note Response to Comment N -13. Comment N -13 raised community concerns about traffic during construction activities. Rather than politely say that the Project is not yet finalized, so we don't know the exact character of such activities, the FEIR flatly states in Response to a comment by a City Committee: "The community's degree of concern regarding project related traffic is not germane to the EIR. This comment does not raise any environmental issues or specific comments on the Draft EIR. As such, no further analysis is required." FEIR, page 2 -93. This raises several issues. First, the degree of community concern is a relevant fact in assisting in determining significance. Second, but more importantly, the tone of this Response to Continents does not serve the informational character of the FEIR. Please advise consultants to refrain from such comments. V. As noted throughout, the Project Description is the key to the DEIR, to any EIR. Section 2, the Project Description, for this DEIR had restrictive formatting: the .pdf file was locked. It was the only part of the entire DEIR/FEIR that was locked so that it was difficult to access and impossible to search. In the past, the City has published environmental documents which were published in their entirety in italics. Although this DEIR was not in italics, locking the document to prohibit searching is inappropriate and lessens the public's ability to review and understand the document. Please refrain from such formatting errors in the revised EIR. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 Rush Hill, MaSor February 10, 2014 Members of the Ciry cuuncll -24- VI. Conclusion Respectfully, the City Council cannot certify the FEIR for the above discussed reasons. The Project Description is incomplete and is piecemealed in violation of CEQA requirements. The DEIRNEIR leave unanalyzed several impacts including aesthetics, air quality, geology and hydrology, noise, land use, traffic and others. Further, these impacts are unanalyzed and unmitigated. The FEIR must be revised to include a complete Project Description and to address and propose mitigation or alternatives for these unaddressed impacts. We look forward to this rejection. Thank you, again, for the opportunity to comment on the captioned Project. Please provide us with notice of any responses to these comments and with notices of any and all hearings on the captioned project. Further, this is also a written request for notices pursuant to the California Environmental Quality Act, specifically, Public Resources Code Section 21092.2. Specifically, pursuant to Section 21092.2, we request that you provide us with a copy of any and all notices required pursuant to Public Resources Code Section 21080.4, 21083.9, 21092, 21 108 and 21 152 relating to the captioned Project. Of course, should you have any questions, please do not hesitate to contact me. Sincerely, FF C S O awk RO C. HAWKARobert INS C. Hins RCH /kw Enclosures /Exhibits as indicated cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only) 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 6505550 Fax: (949) 6501181 Recording Requested By: ORANGE COUNTY SANITATION DISTRICT (OCSD) This docUroen+ is recorded for the benefit of OCSD and Is exempt from fees (Government Code Section 27383', When Recorded Mail To: Name oranga county sanitaftDism NOTICE IS HEREBY GIVEN THAT: Exhibit "A" Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder IlllllllIIIIIlllllllllllllllllllllllllllllllll111111llli NO FEE *$ 8 0 0 0 5 3 1 4 3 1 7$* 201200068542011:52 am 11/07/12 62 417 N12 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 NOTICE OF COMPLETION C 0 N F 0 R M E D COPY (CA CH Code § §s18oA190,8100.8118,9200.9208) Not Compared with Original 1. The undersigned is an owner of an interest of estate in the hereinafter described real property, the nature of which interest or estate is: In Fee (e.g. fee, leasehold, joint tenancy, etc.) 2. The full name and address of the undersigned owner or reputed owner and of all co -owners or reputed co- owners are: Name Sheet and No. City State Orange County Sanitation District 10844 Ellis Avenue Fountain Valley Califomia 92708.7018 3. The name and address of the direct contractor for the work of improvement as a whole is: l0ewlWass, A Joint Venture 10704 Shoemaker Avenue, Santa Fe Springs, CA 90670 4. This notice is given for (check one): 0 Completion of the work of improvement as a whole. ❑ Completion of a contract for a particular Portion of the work of improvement (per CA Civ. Code § 8186). 5. If this notice is given only of completion of a contract for a particular portion of the work of improvement (as provided in CA Civ. Code § 8186), the name and address of the direct contractor under that contract is: WA 6. The name and address of the construction lender, If any, is: All or a portion of this construction project may have been financed from proceeds with US Bank, Corporate Trust Services, 633 W. Fifth St, 24th Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Department 120 South San Pedro St, Suite 400, Los Angeles, CA 90012 acting as Trustee. 7. On the 6th day of November 2012, there was completed upon the herein described property a work of improvement as a whole (or a particular portion of the I'work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided: 8. 10. The real property herein referred to is situated in the City of Newport Beach . County of Orange State of California, and is described as follows: Contract No. 5-49 Replacement of Bitter Point Pump Station The street address of said property is: 5904 West Coast Highway, Newport Beach, CA 92663 N this Notice of Completion is signed by the owner's successor in interest, the name and address of the successor's transferor is: James D. Herberg, Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, CA 92708 -7018 1 certify (or declare) under penalty of perjury under the laws of the State of California that the foreg� true and coned Date: By: gnature of Owner of Owners A th rized Agent James D. Herberg Print Name Page 1 of 2 ReAsion 102312 Attn: Clerk ofthe Board Street Address 10894 Eats Avenue City & Fountain Valley State CANT08-7018 NOTICE IS HEREBY GIVEN THAT: Exhibit "A" Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder IlllllllIIIIIlllllllllllllllllllllllllllllllll111111llli NO FEE *$ 8 0 0 0 5 3 1 4 3 1 7$* 201200068542011:52 am 11/07/12 62 417 N12 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 NOTICE OF COMPLETION C 0 N F 0 R M E D COPY (CA CH Code § §s18oA190,8100.8118,9200.9208) Not Compared with Original 1. The undersigned is an owner of an interest of estate in the hereinafter described real property, the nature of which interest or estate is: In Fee (e.g. fee, leasehold, joint tenancy, etc.) 2. The full name and address of the undersigned owner or reputed owner and of all co -owners or reputed co- owners are: Name Sheet and No. City State Orange County Sanitation District 10844 Ellis Avenue Fountain Valley Califomia 92708.7018 3. The name and address of the direct contractor for the work of improvement as a whole is: l0ewlWass, A Joint Venture 10704 Shoemaker Avenue, Santa Fe Springs, CA 90670 4. This notice is given for (check one): 0 Completion of the work of improvement as a whole. ❑ Completion of a contract for a particular Portion of the work of improvement (per CA Civ. Code § 8186). 5. If this notice is given only of completion of a contract for a particular portion of the work of improvement (as provided in CA Civ. Code § 8186), the name and address of the direct contractor under that contract is: WA 6. The name and address of the construction lender, If any, is: All or a portion of this construction project may have been financed from proceeds with US Bank, Corporate Trust Services, 633 W. Fifth St, 24th Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Department 120 South San Pedro St, Suite 400, Los Angeles, CA 90012 acting as Trustee. 7. On the 6th day of November 2012, there was completed upon the herein described property a work of improvement as a whole (or a particular portion of the I'work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided: 8. 10. The real property herein referred to is situated in the City of Newport Beach . County of Orange State of California, and is described as follows: Contract No. 5-49 Replacement of Bitter Point Pump Station The street address of said property is: 5904 West Coast Highway, Newport Beach, CA 92663 N this Notice of Completion is signed by the owner's successor in interest, the name and address of the successor's transferor is: James D. Herberg, Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, CA 92708 -7018 1 certify (or declare) under penalty of perjury under the laws of the State of California that the foreg� true and coned Date: By: gnature of Owner of Owners A th rized Agent James D. Herberg Print Name Page 1 of 2 ReAsion 102312 VERIFICATION I, James D. Herbem . state: I am the Assistant General Manager (°Owner, "Pretidenr, °Authorized Agenr, °Partner°, etc.) of the Owner identified in the foregoing Notice of Completion. I have read said Notice of Completion and know the contents thereof, the same is hue of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Executed on 11 ,o ?-`o1Z , (date), of Owner or PROOF OF SERVICE DECLARATION Agent (city), Caffomia. 1 t{!� {' l tc)JG M E�Fkt�N declare that I served copies of the above NOTICE OF COMPLETION, (check appropriate box): a. ❑ By personally delivering copies to (name(s) and titles) of person served) at (address), on (date), at .m. (time) b. By Registered or Certified Mall, Express Mail or Overnight Delivery by an express service cancer, addressed to each of the parties at the address shown above on NoveA-'o- 7 -261A (date). C. ❑ By leaving the notice and mailing a copy in the manner provided in § 415.20 of the California Code of Civil Procedure for service of Summons and Complaint in a Civil Action. I declare under penalty of perjury that the foregoing is true and coned. Signed at Fountain Valley W, Callfamia, on I�)6,4 M-R i ao U (date). (Signior# of Person Making Service) YAI PHONGMEKH14 Commission # 1885193 I -o Notary Public • California z z Orange County My Comm. Expires Apr 8. 201a r STATE OF CALIFORNIA COUNTY OF ORANGE On November 7 2012 (date), before me, Yai Phonomekhin , Notary Public (name and title of officer) personalty appeared James D. Herbern who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in hisfAeNtheiF authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct Witness my hand and official seal. q� %J 9 1 Signature I� Page 2cf 2 Revision 102312 Phongmel(hin, Yai From: Phongmekhin, Yai Sent: Wednesday, November 07, 2012 1:35 PM To: Ayala, Maria; Dix, Martin; Cuellar, Raul; Dake, Yvonne; Stanford, Cristina; Hernandez, Kenneth Cc: Prater, Gary; Lapus, Ludwig; Ambrose, Cindi; Rogers, Lisa; Kleinman, Randall; Herberg, Jim; Haynes, Tod; Fisher, Dean; Halverson, David (O &M); Larkin, Mike; Millea, Kathleen; Bauer, Wesley; Lapite, Elizabeth; Spengler, Michelle; Kardos, Julie Subject: 5 -49 & 5 -50 Notice of Completions Attachments: 5 -49 Notice of Completion.pdf; 5 -49 Letter to Contractor & Trustee Banks Sending Copy of NOC.pdf; 5 -50 Notice of Completion.pdf; 5 -50 Letter to Contractor & Trustee Banks Sending Copy of NOC.pdf Good Afternoon, The Notice of Completions for Contracts 5 -49 & 5 -50 were filed with the Orange County Clerk Recorder today. • Contract No. 5 -49 /Replacement of Bitter Point Pump Station filed at 11:52 am, ID# 2012000685420 • Contract No. 5 -50 /Replacement of the Rocky Point Pump Station filed at 11:52 am, ID# 2012000685421 Maria, The original Notice of Completions will be mailed to your office from the Orange County Clerk Recorder. Notes: The letter to Contractors with copies of the conformed NOC were mailed to Kiewit /Mass, A Joint Venture via certified mail today. In addition, we also sent letters to the Trustee Banks (US Bank & Union Bank) with copies of the NOC via certified mails according to NOC item #6. Please see the documents attached for your record. Yai Phongmekhin Contracts, Purchasing & Materials Management Division Extension 7841 ig We're here fory0LL ORANGE COUNTY SANITATION DISTRICT Memorandum DATE: August 25, 2010 TO: James D. Ruth General Manager FROM: Marc Dubois JP- Contracts & Purchasing Manager SUBJECT: Removal of the Closeout Agreement Requirement Issue background: As part of the ongoing effort to streamline and optimize existing processes and resources Contract Administration and Engineering staff have reviewed the Public Works projects Administrative Closeout Process. The review included an analysis of the current policies and procedures, solicitation documents, current OCSD practices and project controls systems which have been implemented in the most recent years. The findings and recommendations of OCSD staff were further reviewed by OCSD General Counsel. Counsel has concluded that OCSD can dispense with the Closeout Agreement without affecting the District's legal rights because OCSD rights will remain protected under the General Conditions of the current solicitations documents and /or state law. Recommendation: Therefore, it is staffs recommendation to immediately implement elimination of the closeout agreement as redundant. Implementation of this recommendation will result in an immediate reduction of administrative costs and project schedules as they relate to the closeout process. Staff is seeking the General Manager's concurrence with this recommendation. Proposed Path Forward: Pursuant to the General Manager's concurrence with the above referenced recommendation, staff intends to proceed with the removal of any references to the Closeout Agreement which will result in the modifications to the following documents: - Delegation of Authority - Invitation for Bid (IFB) boilerplate (GC -45- and 48) - Construction Agreement - Closeout procedure Once these documents are modified by staff, they will be presented to OCSD management for final approval. The document modification and approval process is anticipated to take 2 -3 months from the date of this memo. Page 2 August 25, 2010 Furthermore, pursuant to the General Manager's concurrence with the recommendation in this memo, staff intends to remove any references to the Closeout Agreement from all current construction contracts which have been let to date by submitting a change order for the General's Manager's approval. Concurred MD:NKD:ms EDMS: 003921769 do cc: Jim Herberg, Lorenzo Tyner, Tod Haynes, Cindi Ambrose, Chris Cervellone, Michael Dorman, Christina Stanford Exhibit "B" City Council Attachment CC2 Newport Dunes Map 41 42 Newport Dunes W—Mfvnow��, - im n rv. nraoN roo - �NCe r_- g Parking TpWN�' WP _ -- -- eayside Village —MHP ;TON CIR ( Y1P `oo r A �A o0 i ^� r Future Restaurant Site (Parcel B -2) Marina Clubhouse Family Inn Site (Parcel C) RV Park Back Bay Science Center Boat Storage _ -Beek Coney Bay Island Bistro Boat Launch J Pedestrian Bridge Interim Dry Boat Rtmmna R Boat / Trailer Parking Hyatt Regency Newport Beach 191, / rr 9p Parking �o i? }'� r RV Support Bayview Landing Center senior Apartments Back Bay View Park cr 0 925ft Exhibit "C" General Plan Update June 27, 2006 Page 5 considerable amount of time on this analysis, and Urban Crossroads needs to finish the peak hour trip analysis, so that the City Council can discuss and decide on ballot language. While staff certainly understands that the public hearings are still open, and the Council should continue to listen to the public and entertain requests for changes, we want to emphasize that additional changes to the plan should be made only if deemed absolutely necessary. 7. Land Use Categories Table and Map The goal of the draft land use map is to portray the allowed land use intensities and densities graphically as much as possible and create a planning tool that is useable to both City staff and the public. The Land Use Map and accompanying Land Use Categories table have been devised to depict both graphically and descriptively the land uses recommended by the City Council up to this point. The City's vast array of distinctive neighborhoods, villages, commercial districts and newly proposed mixed -use areas has created many special circumstances. The consequence is the need for a multitude of land use categories that accurately state the regulations recommended by the City Council. For example, though both the Corona del Mar commercial area and Fashion Island are dominated by retail and service commercial uses, they are very different functionally and in their scale, design and character. Similar differences in scale and character can be found in residential, office and mixed -use areas. In order to better illustrate the designations, the map has been broken down into twelve 11 x 17 area maps. The draft plan also includes the Anomaly Table (A2 in the draft, although staff recommends it be moved to the body of the Land Use Element) which is necessary given the large number of site specific densities or square footage limitations. Residential Designations The residential designations have been revised from the original density categories, traditionally used in general plans, to a system that maintains the status quo for those areas not specifically identified for change by the City Council. In order to achieve this, a policy similar to one that applies to the majority of the residential districts in the existing general plan will be added that prohibits subdivisions resulting in additional dwelling units. As their names imply, Single Unit designations will allow one unit and Two Unit designations will allow two units. Multiple Unit designations will allow either a specific density or a specified number of units. The density or dwelling unit cap will be indicated directly on the map. Exhibit "D" Appendix Appendix C. Traffic Impact Analysis C� Mariner's Pointe Project Initial Study City of Newport Beach Existing Conditions Peak Hour Traffic Volumes To determine the existing operation of the study intersections, this study utilizes 2009/2010 a.m. and p.m. peak hour intersection movement counts provided by City of Newport Beach staff. Additionally, a.m. and p.m. peak hour intersection movement counts were collected at the following two study intersections: • Dover Drive /Cliff Drive; and • Balboa Bay Club Driveway/West Coast Highway (SR -1). An annual growth factor of 1.00% on primary roadways, based on the City of Newport Beach TPO, was applied to 2009 traffic counts as appropriate to reflect growth from the count year to year 2010 conditions. The counts used in this analysis were taken from the highest hour within the peak period counted. Detailed traffic count data is contained in Appendix A. Exhibit 4 shows existing conditions a.m. and p.m. peak hour volumes at the study intersections. Exhibit 5 shows existing study intersection geometry. Existing Conditions Peak Hour Level of Service Table 2 summarizes existing conditions a.m. and p.m. peak hour LOS of the study intersections; detailed LOS analysis sheets are contained in Appendix B. Table 2 Existing Conditions AM /PM Peak Hour Intersection LOS Int. No. Study Intersection AM Peak Hour PM Peak Hour V/C —LOS V/C —LOS 1 Irvine Ave /Dover Or 0.543 —A 0.661 — B 2 Irvine Ave /17m St 0.496 — A 0.690 — B 3 Dover Dr/Westcliff Dr 0.368 —A 0.414 —A 4 Dover Dr /16'h St 0.588 — A 0.493 —A 5 Dover Dr /Cliff Dr 0.545 — A 0.492 — A 6 Newport Blvd SB Ramps/W. Coast Hwy (SR -1) 0.839 — D 0.646 — B 7 Riverside Ave/W. Coast Hwy (SR -1) 0.658-8 0.715 — C 8 Tustin Ave/W. Coast Hwy (SR -1) 0.660 — B 0.580 —A 9 Balboa Bay Club Dwy/W. Coast Hwy (SR -1) 0.659 — B 0.694 — B 10 Dover Dr/W. Coast Hwy (SR -1) 0.639 — B 0.718 — C 11 BaysideDr /E. Coast Hwy (SR -1) 0.601 — B 0.571 —A 12 Jamboree Rd /E. Coast Hwy (SR -1) 0.560 —A 0.679 — B Note: V/C = volume to capacity ratio; SB = southbound. As shown in Table 2, the study intersections are currently operating at an acceptable LOS (LOS D or better) according to City of Newport Beach performance criteria. LAW OFFICES OF ROBERT C. HAWKINS February 11, 2014 Via email (jmurillo@newportbeachca.gov) Rush Hill, Mayor Members of the City Council c/o Jaime Murrillo, Senior Planner Department of Community Development City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Re: Comments on City Council Agenda Item No. 11: Greetings: Agenda Item No. 11 February 11, 2014 Recieved After Agenda Back Bay Landing Final Environmental Impact Report ( "FEIR ") SCH No. 2012101003 Thank you for the further opportunity to comment on the captioned matter. As you know, this firm represents Stop the Dunes Hotel, an unincorporated community action group dedicated to ensuring compliance with state and local laws including the California Environmental Quality Act, Public Resources Code sections 21000 et seq. in connection with developments in and around the Back Bay and the Dunes, and Friends of the Bay an unincorporated association of persons dedicated to protection of Upper and Lower Newport Bay. We offer the following further comments on the captioned Project and DEIR/FEIR. First, as we indicated in our February 10, 2014 comments and as is stated in the DEIR, the visual simulations in the DEIR and FOR to assess aesthetic impacts are based on the conceptual model which shows the parking structure as semi - subterranean. As indicated in our February 10 letter and the DEIR/FEIR, the semi - subterranean parking structure will interfere with the shallow groundwater. The DEIR and the PCDP state that the structure will be subterranean only if feasible. Given its interception of groundwater, it will not be feasible. Because the simulations were based on the Conceptual Plan with the semi - subterranean parking structure, the simulations are inaccurat and do not reveal the true aesthetic impacts of the Project and the at grade parking structure. Because of this inaccuracy, the DEIR/FEIR must be revised and recirculated for public review and comment. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Pax: (949) 650.1181 Rush Hill, Mayor Members of the City Council - ? - February 11, 2014 In addition, we incorporate all comments made in this public review and comment process which are consistent with our concerns that the Project will adversely impact the City, the community, the Upper and Lower Newport Bay and the environmental in its entirety. Thank you, again, for the opportunity to comment on the captioned Project. As before, please provide us with notice of any responses to these comments and with notices of any and all hearings on the captioned project. Further, this is also a written request for notices pursuant to the California Environmental Quality Act, specifically, Public Resources Code Section 21092.2. Specifically, pursuant to Section 21092.2, we request that you provide us with a copy of any and all notices required pursuant to Public Resources Code Section 21080.4, 21083.9, 21092, 21108 and 21152 relating to the captioned Project. Of course, should you have any questions, please do not hesitate to contact me. Sincerely, FFICES OF ROBZRT C. HAWKINS Robert C. Hawki] s RCH/kw cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only) 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650.5550 Fina (949) 650 -1181 LAW OFFICES OF ROBERT C. HAWKINS 0GRAL February 11, 2014 Via email (Imurillo .newportbeachca.gov) Rush Hill, Mayor Members of the City Council c/o Jaime Murrillo, Senior Planner Department of Community Development City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 ' HEiVED AFTER AGE140A P1M4 EU' Itt l ( a. t(. Re: First Supplemental Further Comments on City Council Agenda Item No. 11: Greetings: Thank you for the further opportunity to supplement our comments on the captioned matter. As you know, this firm represents Stop the Dunes Hotel, an unincorporated community action group dedicated to ensuring compliance with state and local laws including the California Environmental Quality Act, Public Resources Code sections 21000 et seq. in connection with developments in and around the Back Bay and the Dunes, and Friends of the Bay an unincorporated association of persons dedicated to protection of Upper and Lower Newport Bay. We offer the following further comments on the captioned Project and DEIR/FEIR. As we discussed in our February 10, 2014 comments, the DEIR/FEIR engage in piecemeal environmental analysis which violates the letter and spirit of the California Environmental Quality Act, Public Resources Code sections 21000 et seq. In addition to the reasons set forth in our earlier comments, the DEIR/FEIR engage in Project segmentation and piecemeal analysis with the creation of Anomaly No. 81 without any discussion of the location and use of those additional 26 residential dwelling units (du's). The location and use of those additional and new du's is itself another project under CEQA; the DEIR/FEIR fails to analyze the impacts of that other project. Anomaly No. 81 is fully built -out; there is no opportunity for mobile home sites at that location. Hence, these new du's will be located elsewhere, for instance, at the Family Inn located at the Dunes Resort. 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650.1151 Rush Hill, Mayor Members of the City Council - 2, February 11, 2014 Because of this further piecemeal analysis, the DEIR/FEIR must be revised and recirculated for public review and comment. Thank you, again, for the opportunity to continent on the captioned Project. As before, we incorporate our requests for notices of environmental documentation including notices of determination for the captioned Project. Of course, should you have any questions, please do not hesitate to contact me. Sincerely, FFICES OF ROBVkT C. HAWKINS PRo C. Hawkins RCHlkw cc: Leilani Brown, City Clerk (Via email [LBrown @newportbeachca.gov] Only) 14 Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650-1181