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HomeMy WebLinkAbout11 - Back Bay Landing - Memorandum - StaffDATE: TO: FROM: MATTER: SUBJECT: > CITY OF NEWPORT BEACH z CITY ATTORNEY'S OFFICE February 11, 2014 City Council Leonie Mulvihill, Assistant City Attorney Jaime Murillo, Senior Planner Back Bay Landing No.: Al2 -00405 "RECEIVED AFTER AGENDA PRINTED!' a•It.Ic( Correspondence Received from Robert C. Hawkins dated February 10, 2014 Included on the City Council's agenda for February 11, 2014 as Agenda Item 11 is the Back Bay Landing Project. The City received correspondence yesterday and today providing comments to the Back Bay Landing Final Environmental Impact Report. The purpose of this memorandum is to provide with our review and analysis of these comments. The comments included and identified in numerical order in Attachment No. 1. Comment 1 In correspondence dated February 10, 2014, Robert C. Hawkins states that he is providing comments on behalf of Stop the Dunes Hotel, an unincorporated community action group and "Friends of the Bay dedicated to protection of Upper and Lower Newport Bay." This correspondence states that the Project "threatens the Upper and Lower Newport Bay environment, traffic, biological resources, aesthetics and views, noise, and other resources' and that the comments are providing in the hope of avoiding significant impacts. The commenter states that these comments are timely. The comments are not timely. The City issued a Notice of Preparation (NOP) of an Environmental Impact Report (El R) for the Project on October 1, 2012, advising that the City would receive comments on the NOP through October 30, 2012. The City published a Draft EIR (DEIR) on October 4, 2013 advising that the comment period would end on November 18, 2013. Mr. Hawkins failed to submit a comment letter on Back Bay Landing February 11, 2014 Page: 2 the Draft EIR, and had more than adequate time to submit comments on the EIR during the 45 -day comment period and afterward during the Planning Commission review process. While the City Council Staff Report was posted on Friday afternoon, February 7, 2014, the material in the Staff Report is almost identical to the Planning Commission Staff Report. The only differences are that the City Council Staff Report includes updates relative to the Planning Commission process. The proposed Final EIR and the Response to Comments were available in December 2013 for the Planning Commission review. Mr. Hawkins could have reviewed the proposed Final EIR and Response to Comments in November, about three months before the Council Staff Report was posted. Although the City must respond to comments received during the comment period, CEQA does not require that the City respond to late comments. (See, Pub Res C 21091(d)(1); Gilroy Citizens for Responsible Planning v City of Gilroy (2006) 140 CA4th 911, 924 n10, 45 CR3d 102; 14 Cal Code Regs §15088(a).) These comments are provided for the record to document that Mr. Hawkins' comments, submitted months after the end of the EIR review period and the two Planning Commission meetings on the project, do not present any significant environmental issues that have not already been analyzed in the Final EIR or otherwise in the Record for this project. In accordance with CEQA Guidelines section 15088.5, none of the allegations in Mr. Hawkins' letter documents either a new significant impact or a substantial increase in the severity of an impact. Further, none of the allegations demonstrates that a "feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project's proponents decline to adopt it." (CEQA Guidelines Section 15088.5.) Therefore, the City determines that no recirculation of the EIR is required. The majority of the comments appear to repeat comments received by the City during the public review process or are misstatements and misreading of the content and statements in the EIR. Notwithstanding the fact that the City has no obligation to respond to untimely comments, City staff has reviewed the information included in the correspondence and, in an effort to ensure that the City Council fully considers the environmental consequences of its decision on the Project, provides the following information to document that the EIR is adequate under CEQA and no recirculation is required. Comment 2: This commenter's understanding of CEQA and the CEQA Guidelines does not raise any significant environmental issue. (Pub Res C X21091 (d)(2)(B); 14 Cal Code Regs § §15088(c), 15132(d), 15204(a).) CEQA does not require that the City respond to every comment that is submitted to it and it need not respond to general reference materials submitted in support of comments, comments that are repetitive of those already considered, or comments that are clearly irrelevant. Environmental Protection Info. Ctr. v California Dept of Forestry & Fire Protection (2008) 44 C4th 459 483 487 80 CR3d Back Bay Landing February 11, 2014 Page: 3 28. Responses to comments that do not raise a significant environmental question are not required. Citizens for E. Shore Parks v State Lands Comm'n (2011) 202 CA4th 549 136 CR3d 162. Comment 3: The comment is that the FEIR is inadequate because it fails to acknowledge the "tiering analysis for the Project requires subsequent and complete environmental review such as subsequent EIR." The commenter is not raising any significant environmental issue. Rather, the comments asserts an opinion as to the requirements of CEQA and the CEQA Guidelines. The City disagrees with this opinion and, as noted in the FEIR, page 2 -57 future discretionary approvals, if any, will be reviewed under CEQA and the CEQA Guidelines to determine what environmental analysis, if any, is required by CEQA and the CEQ A Guidelines. Comment 4: The commenter suggests that the FEIR fails to analyze the Project fully and that the City is attempting to "cover the inadequate and piecemeal Project Description." It should be noted by the commenter that the Project Description includes all of the approvals being requested at this time. In addition, in the Staff Report dated February 11, 2014, City staff states that it anticipates construction in 2015. More importantly to the comment is that CEQA does not require that the City respond to every comment that is submitted to it and it need not respond to general reference materials submitted in support of comments, comments that are repetitive of those already considered, or comments that are clearly irrelevant. (Environmental Protection Info. Ctr. v California Dept of Forestry & Fire Protection (2008) 44 C4th 459 483 487 80 CR3d 28.) Reference is therefore made to FOR pages 2 -55 to 2 -57, which provides the City's commitment to ensuring that the EIR addressed the environmental impacts of all reasonably foreseeable activities and notes that 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. However, no specific development proposal has been prepared at this time. Comment 3: The commenter believes that the Project is the first step in an integrated project that must be analyzed in the FEIR and without such analysis results in improper project segmentation under CEQA. A response to this comment is included in the FEIR pages 2 -55 through 2 -57. In summary, the commenter's focus on the CEQA Guidelines' definition of "project" and on Back Bay Landing February 11, 2014 Page: 4 how the project is defined is misplaced. The DEIR analyzes the future development that could occur consistent with the requested legislative approvals. Throughout each of the topics addressed in the DEIR, the discussion included analysis of future development. That analysis is consistent with Guidelines section 15378(d)'s reference to environmental analysis of development. The DEIR analyzed the effects of future project development consistent with the proposed Mixed Use land use and Planned Community zoning designations, to the extent feasible based on available information. The fact that certain specific impacts cannot be quantified in the EIR is entirely consistent with CEQA and the CEQA Guidelines and does not mean that improper segmentation has occurred. As stated in the CEQA Guidelines Section 15146, CEQA recognizes and allows for a different level of analysis for a specific construction project and other types of actions. The commenter's attempt to characterize the Draft EIR as having been prepared "too early" ignores the entire concept of tiering and the Legislature's finding that tiering accomplishes important state goals and that EIRs should be tiered wherever feasible. Cal. Pub. Resources Code § 21093. Contrary to the comment, the Draft EIR does "examine all phases of a project, including planning, construction, and operation." The only difference is that the Draft EIR examines these phases at a level of detail commensurate with the level of detail available at this time, consistent with CEQA tiering principles (see discussion above). Although there are no specific development projects proposed at this time, and thus project- specific details of certain impacts are not available, the DEIR evaluated the potential impacts and made significance conclusions based on known information. For example, the Draft EIR concludes that "the proposed project would avoid any permanent adverse impacts to wetlands and marine resources, with the possible exception of limited impacts related to construction of a new water inlet in Planning Area 1. Further, impacts "associated with future bulkhead construction are not considered to be significant given the bulkhead wall placement outside of the ACOE and CCC jurisdiction, avoidance of eelgrass habitat, and the general lack of other high value habitat resources in the project area." (page 4.0 -42 of the Draft EIR). Moreover, mitigation measures have been included for potentially significant effects, including potentially significant biological effects. These mitigation measures, including measures C -1 through C -12 for biological resources, will mitigate potential effects to biological resources to less than significant levels but may require additional CEQA documentation to evaluate project- specific impacts to such resources Comment 6: The comment suggests that the DEIR fails to analyze or identify project components including the boat launch facility and the 0.642 acres south of the Coast Highway bridge and designated as Recreational and Marine Commercial. This is incorrect. The Planned Community Development Plan (PCDP) requires that a boat storage facility be included in future development and identifies Recreational and Marine Commercial uses as priority uses. At this time the location and design of the facility is unknown. Back Bay Landing February 11, 2014 Page: 5 Therefore, the DEIR included these components in the Project Description and analyzed potential impacts of these identified components. For example the DEIR includes visual simulations that include a conceptual boat storage facility and AQ- construction emissions and operational emissions from the boat storage facility were assumed in AQ calculations and modeling. The Biological Resources analysis in the DEIR analyzed the potential for a water inlet into the boat storage facility, which would require dredging of a small channel from the existing marina to the interior of the site. However, as stated above, without specific design of the future boat storage facility and potential inlet, it is not possible to quantify the extent of biological resource impacts. The DEIR therefore identified a number of mitigation measures to address potential impacts related to dredging if proposed in the future (See, MM C -3, 5, 6, 7, 8, 9, 10, 11, and 12) which specifically detail the actions /analysis that need to occur and performance measure to be achieved. Construction and operational noise from a boat storage facility was assumed in the noise calculations and modeling included in the DEIR. Specifically on Page 4.J -27, detailed operational noise analysis was included for the boat storage facility. Finally, the trip generation specifically associated with the boat storage facility of up to 140 boats was included in the DEIR (page 4.M -19) and analyzed in the project traffic analysis. Comment 7: The commenter confuses the Bitter Point Pump Station which is located at 5904 West Coast Highway (Newport Shores) with the Orange County Sanitation District (OCSD) pump station located south of Planning Area 1 and identified in the DEIR. More importantly, the comment does not raise an issue of new significant impacts but rather seems to rely on the comments of OCSD suggesting that OCSD may, but is not committed to, relocating the pump stations. To this suggestion, the City responded at FEIR, page 2 -37 that the 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 of the relocated pump station would be determined once a specific project design is brought forth. Nonetheless, as discussed in Chapter 2, Project Description, Section 4.A, Aesthetics/Visual Resources, Section 4.6, Air Quality, Section 4.J, Noise, of the Draft EIR, the proposed project would not result in significant impacts relative to visual quality or character, odors, noise and vibration, or vehicle access, and therefore additional mitigation relative to the OCSD pump station is not necessary. Comment 8: The commenter is incorrect. The Family Inn was included in the Approved Project List in the DEIR in Table 3 -1 on page 3 -3. The DEIR identifies the 275 not yet built hotel rooms on the Dunes property. Back Bay Landing February 11, 2014 Page: 6 Comment 9: It is difficult to ascertain the substance of this comment, but it can be said with certainty that it does not raise any significant environmental issue that were not addressed in the FEIR. To clarify, the General Plan identifies 75 unbuilt units in Statistical Area K -1. The Project seeks to reallocate 49 of these units from the Bayside Mobile Home Park for the park, but this did not change the total allocation to K -1 under the General Plan. Comment 10: The City agrees with the comment that until Site Development Review is conducted, and subjected to public hearing and review, no development is assured or guaranteed. This statement does not change the process for the current approvals, which is consistent with state law. Relative to the public view tower, the City is not approving a specific tower design at this time. The comments recognize the City's position stated above. Namely, the fundamental CEQA principle that the level of detail is to be commensurate with the approvals being sought. Comment 11: The City is not being asked to approve a specific structure at this time but the PCDP does establishes minimum parking ratios based on peak parking demand of various permitted uses. The PCDP also includes a provision allowing for modifications to these standards based on a demonstrated complimentary peak hour parking demand analysis with the approval of a conditional use permit. Also, the comments about the height and size of the parking structure are incorrect. The parking structure was addressed in the DEIR and included in the PCDP. Comment 12: This comment notes the Conceptual Site Plan, and that the Project will undergo further refinement during the Site Development Review. The City agrees and appreciates that the commenter acknowledges this process. As noted above, and in response to most of the comments made by Mr. Hawkins, the EIR defined an impact envelope for the project based on the available information and the standards in the PCDP. If the City certifies the EIR, that impact envelope is the defined maximum impact for future implementation of the project. Any impact beyond that shown will need to be evaluated by the City and will need to comply with CEQA and California planning and zoning law prior to the next discretionary approval. The City understands that some of the text in the PCDP and some of the requirements for future plans may not appear to be "regulatory" or'standards." The provisions for future plans accomplish a number of things: they allow the applicant flexibility when going to the next level of design, and, Back Bay Landing February 11, 2014 Page: 7 they provide for City review and a discretionary decision on approval of those later more detailed plans. This is entirely consistent with City procedures and California law. Contrary to the comment, the Project Description is adequate and the City has the proper level of detail for the currently- requested approvals. No revision or recirculation of the EIR is necessary; the comments do not document any new significant environmental impacts. Comment 13: Mr. Hawkins states that the update to the General Plan, which is currently being considered for recommendations by the City's Land Use Element Committee, should be included in the list of projects identified in the Cumulative Analysis. The comment fails to understand that a Notice of Preparation for the Project was distributed in 2012 and the DEIR was circulated for public review on October 4, 2013, which was well before the NOP for the General Plan Update. The City's determination is based on an assessment of the project's incremental effects viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." 14 Cal Code Regs §15065(a)(3). See also 14 Cal Code Regs §15355(b). In San Franciscans for Reasonable Growth v City & County of San Francisco (1984) 151 CAW 61 198 CR 634, the court held that a development proposal should be viewed as a probable future project once the environmental review process for the project is underway. The court also noted that because new projects are continually being fed into the environmental review process, lead agencies may set a reasonable cutoff date for the new projects that will be included in the analysis. (San Franciscans for Reasonable Growth 151 CA3d at 74 n14.) In Grav v County of Madera (2008) 167 CA4th 1099 1127 85 CR3d 50, the court held that the lead agency's mere awareness of a proposed project is insufficient to demonstrate that the project is a probable future project. Finally, it is well established that a proposal that has not crystallized to the point that it would be reasonable and practical to evaluate its cumulative impacts need not be treated as a probable future project. (City of Maywood v Los Angeles Unified Sch. Dist. (2012) 208 CA4th 362 397 145 CR3d 567.) For these reasons, we believe that the City's project list for the purpose of analyzing cumulative impacts is adequate and in compliance with CEQA and CEQA Guidelines. Comment 14: This comment repeats Mr. Hawkins claims relating to the Project Description and alleged improper segmentation. As stated above, and in the FEIR (Response to Comments) CEQA encourages "tiering," and provides that the EIR level of detail should be tailored to the level of the approval being sought. In contrast to allegations that the Back Bay Landing February 11, 2014 Page: 8 project was "segmented," the EIR properly follows CEQA tiering concepts. The "Project" is clearly stated throughout the EIR as the legislative approvals (GPA, CLUPA and PC Amendment) and two necessary administrative approvals (LLA and TPO Study) for a future mixed -use development of the site This is set forth in: • Executive Summary 1 b.a (page ES -2) • Executive Summary 1b.a(1)(d) Back Bay Landing PCDP: "the PCDP provides a vision for the land uses on 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 ...(emphasis added)." (pg. ES -5) • Introduction, Section 1.1 Purpose of the EIR: "This document analyzes the environmental effects of the proposed project to the degree of specificity appropriate to the currently proposed actions (legislative and minor administrative approvals only) as required by section 15146 of the CEQA Guidelines. • In Section II (page 4) of the Hawkins letter, the commenter quotes part of a paragraph in Chapter 1, Introduction, but omits the key portion of that paragraph which states: "The proposed actions [the "Project "] are all legislative approvals with the exception of the traffic impact study and lot line adjustment; however, no approvals which would directly allow site development are proposed at this time (Section 1, Introduction 1. Purpose (pg. 1 -2) (emphasis added). Comment 15: This comment is that the Project will have significant aesthetic impacts. Specifically, that the DEIR failed to adequately analyze these impacts and therefore leaves these impacts unmitigated. The commenter ignores one fundamental aspect of the City's required later Site Development Review process, namely that the City has discretionary review and authority over that Site Development Review process. Any changes to the impacts addressed in the EIR must be evaluated by the City as part of the Site Development Review process, which would also include the appropriate CEQA review. In addition, the commenter suggests that the Project's impacts to private views are significant. However, Section 20.30.100 of the City's zoning code specifies that it is not the intent of this Zoning Code to protect views from private property, and therefore the City's threshold for the analysis of aesthetics is based on public views not private views. The comment also makes several allegations that the EIR minimizes issues and existing conditions. But, the comment does not provide specific evidence to support those claims. In the absence of an explanation as to why the EIR is considered by the commenter to minimize certain issues, the City confirms the analysis in the EIR. The City does not agree with the commenter's statement that visual simulations are worthless. Rather, visual simulations are critical to identifying the aesthetic impacts of the Project. Contrary to the comment, CEQA does not require the use of "story poles" Back Bay Landing February 11, 2014 Page: 9 and since there is no construction project being approved at this time there would be no point in relying on "story poles" to determine the Project's aesthetic impacts. The DEIR acknowledges that future development of urban uses on the Project site pursuant to the legislative approvals has the potential to obstruct existing views of scenic resources including views from the City- designated Public View Points and Coastal View Roads (DEIR, page 4.A -25.) However, as discussed in the DEIR these impacts are considered to be less than significant. Specifically, while some foreground views from areas adjacent to the Project site, particularly along East Coast Highway just west of Bayside Drive and along Bayside Drive, as viewed by the public transitioning through the area in their cars will experience some disruption due to the Project, views of scenic resources would not be substantially altered relative to current conditions due to existing intervening topography, urban development, and landscaping. Further, foreground views of Upper Newport Bay and adjacent bluffs would generally be preserved from designated Public View Points including Castaways Park, the bluff -top trail north of Castaways Park, and Westcliff Park, as well as from the East Coast Highway Bridge. Mid -range views of Upper Newport Bay, the Upper Newport Bay bluffs, the Fashion Island shopping center, Newport Dunes resort, and Newport Harbor could be partially obstructed from designated Public View Points such as Castaways Park and adjacent bluff tops and a Coastal View Road (East Coast Highway), however views of these features would primarily be preserved with little adverse effect. Additionally, long -range views of the San Joaquin Hills, Santa Ana Mountains, San Gabriel Mountains, Pacific Ocean, Palos Verdes Peninsula, Santa Monica Mountains, and Santa Catalina and San Clemente Islands would remain unaffected by future site development, with the exception of a limited number of viewpoints at lower elevations relative to the project site. Although future development on -site could obstruct short-, mid -, and long -range views of scenic resources from some locations in the project area, such obstructions would not represent a significant portion of the overall panoramic views currently available from public viewpoints. This is because the most substantial view obstructions would occur along a limited segment of East Coast Highway immediately adjacent to the project site, such that views northward from the roadway would only be obscured for a limited time as one travels along the roadway. Furthermore, project design features such as open space areas and plazas, and the associated view corridors they create, would preserve views through the site at various locations along the affected portion of East Coast Highway, while proposed landscaping and architectural design features would improve the quality of available views across the site relative to the poor visual quality of the property under existing conditions. As such, the DEIR concludes that the Project would not have a substantial adverse effect on a scenic vista, and impacts in this regard would be less than significant. Back Bay Landing February 11, 2014 Page: 10 Comment 16: The comment suggests that the DEIR fails to adequately address the Project's impacts on Air Quality. In response, it should be noted that demolition activities are addressed in several portions of the DEIR under construction impacts. (See, DEIR page 4.13-17, 4.6 -26, and 4.13-27.) Contrary to the comment, the project is NOT adjacent to the Bitter Point Pump Station. The DEIR did however address the OCSD pump station, which is adjacent to the Project site. Specifically, the DEIR identifies the requirements of the PCDP that a future development 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. It should be noted that sewage pump stations are ubiquitous throughout suburban and urban areas. There are thousands of pump stations in and adjacent to residential areas in California; pump stations are located in and adjacent to residential areas in order to serve those areas. Bringing residents, shoppers and diners to the vicinity of such a station is not a significant impact under CEQA. The commenter overstates the nature of the issues related to the pump station and the OCSD comment letter on the EIR. The OCSD comment letter (letter F), states that "odors do occur on occasion and can be perceived by sensitive receptors as a nuisance." Further, the letter notes that relocating the pump station to create a greater distanced between the pump station and proposed uses would "diminish the probability of pump station odor being bothersome." The occasional odors from the pump station are an existing condition that nearby residents and business live with and have lived with for years. This does not translate into a significant adverse impact under CEQA. Comment 17: The comment letter fails to document any new environmental impacts that are not already addressed in the EIR. In fact, the DEIR provided a delineation of the waters of the United States. The DEIR did not provide further details of impacts to these waters because no design level details are available at this time. Mitigation is also provided for this impact, which will be further refined through the Site Development Review process. The commenter cites to CEQA Guidelines section 15144 that some degree of forecasting is required when drafting an EIR. The commenter neglected to cite to CEQA Guidelines section 15145 which states that if "a Lead Agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact." In accordance with CEQA Guidelines section 15144, the City has disclosed all that it reasonably can. Back Bay Landing February 11, 2014 Page: 11 Comment 18: The commenter states that the subterranean garage portion of the project is not feasible due to groundwater potential and also states that the garage will be high and massive. Encountering groundwater is not uncommon in the City and compliance with the recommendation included in the design -level geotechnical analysis required under Mitigation Measure E -1 serves to mitigate the risk associated with encountering ground water. The PCDP includes height limits and design guidelines to address the project aesthetics. The commenter incorrectly states that potential impact to liquefaction was not addressed in DEIR and implies solely reliance on Building Code compliance. In fact, a full analysis of liquefaction is included in Page 4.F -10 and 11 addressing the liquefaction potential, recommendations included in the Preliminary Geotechnical Study to ensure liquefaction potential is adequately addressed, and further requires a design -level geotechnical analysis based on project specifics. Comment 19 The commenter questions whether or not it is good policy to amend the General Plan as proposed by the Project Description. This is not an identification of a new significant impact or severity of an identified impact as should be the case with a CEQA comment. The impacts under land use were identified in the DIER. The commenter's suggestion that the Project is a transfer of development intensity is inaccurate. Rather, the General Plan provides for a maximum FAR for the land -side portion of the Project site north of the bridge, which equates to 131,290 square feet. The General Plan also designates the adjacent Bay Side Village mobile home park property (Parcels 1 and 2 of Parcel Map 93 -111) for multi -unit residential and limits it to 15 DUs per acre, which equates to 345 DU currently allowed. The reallocation from the RM to the Project Site is not a transfer of development rights and therefore no findings are required to effectuate this reallocation. Comment 20 The DEIR did indeed analyze noise impacts. In fact, Figure 4.J -11 highlights the noise monitoring locations to assess the existing noise environment in to determine project impacts. This analysis included monitoring of noise of the sensitive noise receptors including Dover Shores and Upper Castaways. The noise impact analysis studied project noise level increases associated with project construction and operations and Back Bay Landing February 11, 2014 Page: 12 concluded established thresholds were not exceeded. This analysis is included in the DEIR beginning on page 4.J -1. The City disagrees with the suggestion that the PCDP should include noise monitors. Rather, if noise levels identified in the City's Municipal are exceeded, established Code Enforcement remedies can be utilized. However, the PCDP does provide that future project components that may have a noise impact are conditionally permitted uses that require further review of operations to ensure consistency with the City's code and other appropriate noise standards. Comment 21 The Traffic Study was based upon a Maximum Development Scenario that was assumed for the project consistent with the development limits established in the PCDP, including the 49 residential units reallocated from the adjacent mobile home park. As a result, the traffic study evaluated the "worst -case' scenario for the project's trip making potential, estimated through the application of solid trip generation factors to specific non - residential SF (by land use type) and number of residential units. The remaining 26 units (not 21 units as described by the commenter) that remain in the mobile home park (Anomaly site 81) are not proposed to be constructed, but merely represent the remaining density potentially allowed to be constructed on the site under the General Plan designation. Therefore, analysis of the development of the 26 units on the mobile home site is not warranted in the traffic study. The comment highlights a difference between the existing conditions p.m. peak hour LOS for the intersection of Coast Highway and Dover Dr between a previously prepared traffic study for Mariner's Pointe project (LOS C) and the traffic study prepared for the Back Bay Landing project (LOS B). The difference is related to the different periods of time (baseline conditions) that the traffic counts were taken to establish existing traffic volumes at the intersection. For the Mariner's Pointe project, the traffic counts were taken in March of 2009. For the Back Bay Landing project, the traffic counts were taken in April of 2012. The DEIR explains that the existing traffic volumes were based upon 2011/2012 traffic counts for the various study intersections. It is not uncommon to have differences in traffic volumes that translate to differences in ICUs (0.718 versus 0.671) and corresponding LOS. The DEIR traffic study's conclusions on the Project having no significant traffic impacts remain valid regardless of the existing baseline differences The Commenter states that it is unclear whether or not the traffic impact analysis fully appreciated the impacts of the project, the Mariner's Pointe project, and the Dunes Hotel project in the project forecasts. However, as illustrated in Table 3 -1 Approved Projects List of the DEIR, both the Newport Dunes and the Mariner's Pointe projects were included in the cumulative project analysis and included in the traffic impact Back Bay Landing February 11, 2014 Page: 13 analysis for the project. The traffic impact analysis also included a queuing analysis to ensure vehicles turning left to enter the project site would not be impacted from anticipated traffic travelling southbound on Bayside Dr exiting the Dunes property at build -out. The Commenter states that community concern raised in Comment N -13 is relevant in assisting significance. However, the actual comment in N -13 only provides an opinion of what people may be concerned with, but does not actually address a deficiency in the DER analysis or offer an alternative significance threshold. Therefore, response to Comment N -13 is appropriate. Comment 22: The EIR was available on the City's website, at libraries and at the City. There is no requirement that the electronic files be provided in a particular format and the "locked" pdf file is a common format used by many cities in California. The City disagrees that the locked pdf file of the Project Description lessened the City's ability to review and understand the document. Several organizations and individuals reviewed the EIR and submitted comments before the end of the review period. Comment 23 and 24: Both of these comments were addressed in the City's responses to comments to the DER and are also addressed herein. [Al2- 00405] �\ �_ '' .l i _ f 1 111 '' I l � 1_ LAW OFFICES OF ROBERT C. HAWKINS February 10, 2014 Via email (jmurillo(a newoortbeachea 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• Back Bay Landing Final Environmental Impact Report "FEIIR" 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 Proje�t 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 t e serious hope of avoiding these significant impacts which will seriously and adversely affect ur City, our community and the Upper and Lower Newport Bay environment. Of course, these co ents may seem late, but the Staff Report for the captioned Agenda Item No. 1 I only came out pn Friday afternoon, February 7, 2014. These comments are timely. 1. An EMIR 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 Pas: (949) 650,1181 Rush Gill, Mayor Member of the City Council -2 - February 10, 2014 "An EIR should be prepared with a sufficient degree of analysis to provide decision - makers with information which enables themto 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]elevantpersonal 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. Regents 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.(1975) 13 Cal.3d 263, 282 (holding that "the principle that the enviromnental 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 a project applicant to obtain a biological 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 Brach, Califomia 92660 (949) 650 -5550 Fax: (949) 650 -1181 0 Rush Hill, Mayor Members of the City Council - 3 - February 10, 2014 IY. The 1Proiect FEIR is Confused and Requires Substantial Revision Chapter 1, Introduction, identifies the DEIR as a Project EIR. It states that "A Project EIR 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 I 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 I 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. I11. The Project Description is Incomplete and Engages in Unlawful Piecemeal Analysis for Important Project Features. 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 LO 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 Invo v Citv of Los Angeles (1977) 71 Cal.App.3d 185, 193 (Emphasis supplied). The County of Invo Court continued: I "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 fmite 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 wilt 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 welt, 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 1Banning]" 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.' (Bozuna, 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 5 must analyze fixture expansion or other action.' IC bid.)" J 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 Rusb 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 rBanning], 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 5 [1 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 Areallo. 1 or Parcel3. 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, I generator set, I 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 Corporare Plaza, Suire 120 Newport Beach, California 92660 (949) 6506550 Fm (949) 650-1181 l►/J 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 I as part of future project implementation; however, should this occur, the exact location of the 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 theNewport 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 aplanned 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, Suire 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650 -1181 J 9 M 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, anon - Project site, with an additional 26 du'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: 3 "The site would accommodate the development of an integrated, mixed -use i waterfront project consisting of coastal dependent and coastal related visitor- serving commercial and recreational uses allowed in the current CLUP CM A, 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, Suire 120 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.118 t Rush Hill, Mayor Members of the City Council - 11- 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 DEIRlFEIR 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 tern 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 Far (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 dos and commercial square footage wrap around the parking structure, the size of the entire building will have impacts. Butagain,theDEIR/FEIRandtheDCDP 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, Suire 120 Newport Beach, Califomia 92660 (949) 650 -5550 Fax: (949) 650 -1181 Rush Hill, Mayor Member 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 Z 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 imperniissible 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 Projectin 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. ffi. 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 Analvsis," Is Seriously Flawed and Requires Substantial Revision and Recirculation of the FEIIR. A. Introduction: the Proiect Description Undercuts the Impacts Analvsis. 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) 650.1.181 12 13 11 rM Rush Hitt, Mayur Members of the City Council - i5- 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 hqp://www.dot.ca.Qov/hq/LandArch/seenic/schwv.ht . 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. y 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 Ht11, Mayor Members of the Ciry Council - 16, Febwary 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 11 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 ofproposed 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. Citv 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. Asnotedabove, 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. H Corporate Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650 -11.81 I 15 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 Proj ect 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 of terrestrial 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 DEIRIFEI'R 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 4.13-33. 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) 6541181. Rush Hill, Mayor Members of the City Council - 1S - 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. The Project Will Significantly and Adversely Affect Biological Resources Which Must be Miti ag ted. 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 UpperNewport 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 -1151 Rush Hilt, 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 EIR 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 comment." 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 11 Rush Hill, Mayor Member.; 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 DEIWFEIR, 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 Geology and Hydrology of the Project Site Result in Substantial Project Impacts Which Require Mitigation. 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 Introduction of Residential Uses at the Project Site Will Have Significant Land Use Impacts Which Must Be Analyzed and Mitigated. 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 Proj ect 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 1.0, 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 du's to the site? The DEIR does not answer these questions. Indeed, Comment C -2 recognizes that residential du'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: G A. The reduced density/intensity on the donor site provides benefits to 1 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) 6501181 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. I 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 theperhneter of the Project site with 2� 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 Fas: (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 du's not currently existing. Nowhere does the traffic analysis discuss these new 21 du'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 forpublic review and comment. Finally, we must note Response to Comment N -13. Continent 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 Comments 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 Corporare Plaza, Suite 120 Newport Beach, California 92660 (949) 650 -5550 Fax: (949) 650.1181 Ruafi Ifill, Mayor Fvhruar} 10, 2014 �kmbcr ni nc, Ciq Council VL Conclusion Respectfully, the City Council cannot certify the FElRforthe above discussed reasons. The Project Description is incomplete and is piecemcaled 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 Proect 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 continents 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. SpcciFically, pursuant to Section 21092.2, we request that you provide its with a copy of any and all notices required pursuant to Public Resources Code Section 21080.4, 21053.9, 21092, 21 108 and 21 152 relating to the captioned Project. Of course, should you have any questions, please do not hesitate to contact Inc. Sincerely, PF C= Oins C. HAWKINS Robert C. Haw RCHIkw i EnclosureslESllibits as indicated cc: Leilani Drown, City Clerk (Via email [LDrowii@ilewportbeachca.gov] Only) 14 Coryronac Plaza, Suit, 120 Newpmr Beach, Ctfrornin 92660 (949) 650.5550 I',= (9-19) 650- t 181 Recording Requested By: ORANGE COUNTY SANITATION DISTRICT (OCSD) This document Is recorded for the benefit of OCSD and Is ex&mpt from fees (Government Code Section 27383 When Recorded Mall To: Name OrangeCou*SanttattonDfaidd Attn: Clerk of the Board Sheet Address 10844 Ellis Averm City & Fountain Valley state CA 92708&7018 NOTICE IS HEREBY GIVEN THAT: ]Exhibit "A" Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder NO FEE * $ R 0 0 0 5 3 1 4 3 1 7 8 n 201200068542011:52 am 11/07/12 62 417 NI12 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 NOTICE OF COMPLETION C O N F O R M E D COPY (CA CM1 Code gga1808190 ,a1gae118,9209 -9M) 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: (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 cD owners are: Name Street and No. City State Orange County Sanitation District 10844 Ellis Avenue Fountain Valley California 92708.7018 3. The name and address of the direct contractor for the work of improvement as a whole is: KewibWlass, 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: NIA 6. The name and address of the construction lender, N 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, 240, Floor, Los Angeles, CA 90071 and/or Union Bank, Corporate Trust Departrnent,120 South San Pedro St, Suite 400, Las Angeles, CA 90012 acting as Trustee. 7 On the 60, 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 work of improvement as provided in CA Civ. Code § 8186) a general description of the work provided: 8. The real property herefn referred to is situated in the City of Newport Beach . County of Orange State of Cardomia, and is described as follows: Contract No. 5.49 Replacement of Bitter Point Pump Station 9. The street address of said property 1s: 5904 West Coast Highway, Newport Beach, CA 926M 10. if 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 pedury under the laws of the State of California that the foregojng is true and correct Date: ��' L��— Z o s'� By, gnature of Owner of Owner's A th rized Agent James D. Herberg Print Name Page 1 of 2 Revision 102312 VERIFICATION I, James D. Hedberg , state: I am the Assistant General Manager ('Owner, 'President, 'Authorized Agent, °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 he 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 11-0-7 247— .(date), at Fountain Vail f (city), California. gnature of Owner or Ownees Aterized Agent PROOF OF SERVICE DECLARATION I, declare that I served copies of the above N0710E OF COMPLETION, (check appropriate box): a. ❑ By personally delivering copies to (name(s) and title(s) of person served) at (address), on (date), at .m. (time) b. 0 By Registered or Certified Mall, Express Mall or Overnight Delivery by an express service carer, addressed to each of the parties at the address shown above on f V(311 teg- `f -161A (date). C. ❑ By leaving the notice and ma ling a copy in the manner provided in § 415.20 of the Cal fornia Cade of Civil Procedure for service of Summons and Complaint in a Civil Action. I dedare under penalty of perjury that the foregoing Is true and correct. Signed at Fountain Valley (city), California, on %i6j113R h o20 (� (date). (Signaturd of Person Melding Service) YAI PHONGMEKHIN Commission rit 1885193 < -m Notary Public - California i Orange County My Comm. Expires Apr 8. 2014 STATE OF CALIFORNIA COUNTY OF ORANGE On November? 2012 (date), before me, Yet Phongmekhin ' Notary Public (name and He of officer) personally appeared James D. Hedberg who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islere subscribed to the within instrument and acknowledged tome that helsheMey executed the same In hisilieFffiell r authorized capac tykes), and that by hislherltiheir signature(s) on the instrument the person(a), or the entity upon behalf of which the persons) 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 correcL Witness my hand and official seal. yj,, 9 ® wri^�tk�� Signabire Page 2 of 2 Revision 102312 Phongmekhin, 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 v ' foryau. ILA Memorandum DATE: August 25, 2010 TO: James D. Ruth General Manager FROM: Marc Dubois Rl 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 M Ruth, General Manager Date cc: Jim Herberg, Lorenzo Tyner, Tod Haynes, Cindi Ambrose, Chris Cervellone, Michael Dorman, Christina Stanford Exhibit "B" City Council Attachment CC15 Newport .. 41 42 w on CN SO m to K. �n ca cc cc y - y G CL co b V � avok logs.r U 'f ca m LL a a; . 'CR r 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..ThIe draft plan -also 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 Marine ✓t Pointe Project Initial Stialy City of Neauhort Beach Existing Conditions Peak Hour Traffic Volumes To determine the existing operation of the study intersections, this study utilizes 200912010 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: A Dover Drive /Cliff Drive; and 9 Balboa Bay Club DrivewayNVest 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 Dr 0.543 —A 0.661 — B 2 Irvine Ave /17'" St 0.496 — A 0.690 — B 3 Dover Dr/Westcliff Dr 0.368 —A 0.414 —A 4 Dover Dr /16r' 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 — B 0.715 — C 8 Tustin Ave/W. Coast Hwy (SR -1) 0.660 — B 0.580 — A 9 Balboa Bay Club DwyAN. Coast Hwy (SR -1) 0.659 — B 0.694 — B 10 Dover DrAN. Coast Hwy (SR -1) 0.639 — B 0.718 — C 11 Bayside Dr /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.