HomeMy WebLinkAbout21 - Appeal of Planning Commission Approval for The Garden Office and Parking Structure Proposed at 215 Riverside Avenue (PA2019-023) - Staff Memo and Applicant COA 63Memorandum
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
To: City Council
From: Gregg Ramirez, Principal Planner
Date: May 8, 2020
Re: Agenda Item No. 21 — The Garden Office and Parking Structure at 215
Riverside Avenue (PA2019-023)
Attached is correspondence from the applicant regarding proposed condition of
approval No. 63. Additionally, the applicant has submitted revised project plans
and a description of the revisions which are also attached.
manatt
May 8, 2020
VIA EMAIL
Seimone Jurjis
Director of Community Development
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
Susan K. Hori
Manatt, Phelps & Phillips, LLP
Direct Dial: (714) 371-2528
shori@manatt.com
Client -Matter: 63060-030
Re: 215 Riverside - City Council Hearing, May 12, 2020; Appeal of Coastal
Development Permit No. CDP 2019-003 and Conditional Use Permit 2019-
003
Dear Mr. Jurjis:
At the City Council hearing of April 28, 2020, the City staff presented six revised and
new conditions of approval that the Applicant, Laidlaw Schultz Architects ("Applicant"), had
worked on with the appellant as part of the exploration of a resolution of the appellants'
concerns. During the appellants' presentation, their attorney stated that the appellants were not
in agreement with any of the six conditions.
One of the conditions was a revision to Condition 62 that was added by the Planning
Commission at the October 17, 2019 hearing. As originally adopted by the Planning
Commission, Condition 62 limited entry to the upper level of the parking structure after 11 p.m.
The appellants had requested that that the upper level be closed at 9 p.m. to both entry and exit.
As a compromise, the Applicant agreed to closure of the upper level at 10 p.m. as part of a
package of conditions to achieve resolution of the appeal. Although these conditions did not
result in a resolution of the appeal, the Applicant remains willing to have these conditions added
— subject to the requested modification below - if the City Council approves the 215 Riverside
project.
Limiting the Upper Parking Level Hours of Entry Only
Planning Commission Condition of Approval 62 required the following:
62. Vehicles shall not be allowed to enter the upper level of the parking structure 11
p.m. through 6 a.m. daily.
695 Town Center Drive, 14th Floor, Costa Mesa, California 92626 Telephone: 714.371.2500 Fax: 714.371.2550
Albany I Boston I Chicago I Los Angeles I New York I Orange County I Palo Alto I Sacramento I San Francisco I Washington, D.C.
manatt
Seimone Jurjis, Director of Community Development
May 8, 2020
Page 2
As a compromise to appellants concerns, the Applicant agreed to limit use of the upper
level of the parking structure to 10 p.m. and that the time limit would apply to both entry and exit
from the upper level.
Given the difficulties of implementation and enforcement, the Applicant requests that the
wording of Condition 62, which was re -numbered as Condition 63 in Staff's presentation, remain
the same as adopted by the Planning Commission, but with the closure hour changed to 10 p.m.
As modified Condition 63 would read:
63. Vehicles shall not be allowed to enter the upper level of the parking structure
10 p.m. through 6 a.m. daily.
While the Applicant can prevent vehicles from entering, if a car owner does not return to
pick up their car before 10 p.m., enforcement of the rule would require the Applicant to either
tow the vehicle which would cause more disruption, or impose some gating mechanism which is
not proposed for this project.
With the exception of this request to return to the wording of this condition as adopted by
the Planning Commission, the Applicant will agree to accept the other six conditions presented
by the City staff at the April 28, 2020 hearing.
In conclusion, we urge the City Council to uphold the Planning Commission approval,
deny the appeal, and approve the 215 Riverside project with Condition of Approval 63 as
modified.
Very truly yours,
Manatt Phelps & Phillips, LLP
Sv4,c . K. Ho-rL*/
Susan K. Hori
cc: Mayor O'Neill and the City Council
Gregg Ramirez
James Campbell
Makana Nova
Yolanda Summerhill, Esq.
Aaron Harp, Esq.
Scott Laidlaw
326240486.1
From:
slaidlaw(alsarchitects.com
To:
Ramirez, Gregg; Nova, Makana
Cc:
Jurjis, Seimone
Subject:
215 Riverside
Date:
Friday, May 8, 2020 11:25:48 AM
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
Good Morning Gregg,
I wanted to provide you with revised site and floor plans for our upcoming hearing next week. These
plans show the addition of the trellis along the back side of the parking. While the location of parking
and distance from the neighbors of the parking has not changed and always been a minimum of 11',
I was able to modify the north west corner of the parking to eliminate any encroachment into the
hillside beyond what already exists. This provides a minimum 10' setback to the structure and
maintains the minimum 11' setback to the parking in this location.
I would also like to point out something which I believe is important in describing the "structure" and
significantly distinguishes it from other or future above grade structures. While we have two levels
of parking this is a one story structure, in fact the lower level parking meets the building code
definition of a basement due to the manner in which we slope down into it and the way it is cut into
the hillside (50% of perimeter of roof structure above less than 6' above adjacent grade and no part
of the roof above more than 12' above grade). I believe it is more appropriate to describe the
parking as one level of basement parking with one level of on or above grade parking.
Scott Laidlaw
LS arc-h-It*-:-cts
LAi6L^W1,CHuL72
31 1 1 Second Avenue, Corona Del Mar, CA 92625 T:949.645.9982 F:949.645.9554 W:LSarchitects.com
l
This communication may contain privileged and/or confidential information. It is intended solely for the use of the addressee. If you are not the intended
recipient, you are strictly prohibited from disclosing, copying, distributing or using any of this information. All drawings and written material appearing
herein constitute original and unpublished work of the architect and may not be duplicated, used or disclosed without the written consent of Laidlaw
Schultz architects.
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May 11, 2020
VIA EMAIL
Mayor Will O'Neill and Councilmembers
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Susan K. Hori
Manatt, Phelps & Phillips, LLP
Direct Dial: (714) 371-2528
shori@manatt.com
Client -Matter: 63060-030
Re: 215 Riverside - City Council Hearing, May 12, 2020, Agenda Item 21;
Response to Aaron Ehrlich Email dated May 7, 2020
Dear Mayor O'Neill and Members of the City Council:
This letter responds to the May 7, 2020, email that was sent to the City Council, City staff
and legal counsel for 215 Riverside applicant, Laidlaw Schultz Architects ("Applicant"), by
counsel for the appellants, Aaron Ehrlich, requesting yet another hearing continuance of the
appeal of the Planning Commission's approval of this project. The Applicant has been waiting
since November, 2019, for this appeal to be heard by the City Council and hopes that the City
Council will proceed to hold a hearing and render a decision at the May 12, 2020 City Council
hearing.
Mr. Ehrlich has requested that my client re -design the project and submit revised plans
that incorporate "a solid roof with a minimum STC rating of 55, and solid side walls, over the
entire surface area of the parking structure." The appellants also requested that the Council
postpone its hearing on this project until revised plans are submitted and an opportunity for the
public to review and comment said plans are provided. The Applicant opposes yet another
postponement of this appeal in the hopes of attempting to satisfy the appellants. As described in
greater detail below, since the April 14, 2020, City Council hearing, the Applicant has been
working with the appellants to satisfy its concerns. Yet every time we believe we have reached a
compromise, the appellants add additional conditions and move the goal line. We cannot
continue negotiations with a party that changes its demands every time we are close to reaching
agreement. For these reasons, we request the Council to deny the request for a continuance and
to proceed to hold a hearing on the appeal on May 12, 2020.
As the staff report recounts, this project was approved on October 17, 2019, by your
Planning Commission. On October 31, 2019, the appellants filed an appeal. It was the
Applicant's understanding that in order to prepare the staff report and agendize the appeal for a
City Council hearing, we should expect the appeal to be heard at the second Council hearing in
January, 2020. Since that time, the hearing has been postponed six times. Three postponements
695 Town Center Drive, 14th Floor, Costa Mesa, California 92626 Telephone: 714.371.2500 Fax: 714.371.2550
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were due to the appellants' attorney's schedule conflicts, and one due to his inability to travel in
light of the Bay Area COVID-19 orders. At the April 14, 2020, hearing, both the Applicant and
appellants agreed to continue the hearing until April 28 to see if a resolution could be achieved to
address the concerns of the appellants regarding noise and light spillage. The appellants
originally requested a trellis be extended over all parking spaces which has now evolved into a
roof with solid surrounding walls.
Given both design and location, a roof is not required to minimize either noise or light
spillage because:
• the 215 Riverside project does not generate any noise that exceeds the City
standards for day and nighttime noise levels as confirmed by noise studies, and
• the 215 Riverside project lowers the elevation of the parking lot, increases the
distance between the parking spaces and the adjacent houses, and reduces the
number of parking spaces visible to the appellants as compared to existing
conditions thus minimizing light spillage.
Even though there are no significant noise and light spillage impacts, the Applicant
agreed during the negotiations to construct a trellis over all parking spaces, agreed to heavily
foliate with vines those trellises, and agreed to limit the hours of use of the upper parking level to
address the appellants' concerns of light spillage and noise. In addition, prior to the April 28th
hearing, we worked with the appellants' attorney to address their remaining concerns including
providing appropriate protective measures for adjacent trees.
In response to our willingness to reach a compromise, the appellants changed their
conditions and requested three new and/or modified conditions, which then expanded to six new
conditions during Mr. Ehrlich's presentation at the April 28, 2020, Council hearing. And which,
based upon the May 7"' communication, has once again changed.
My client has been more than willing to work with the appellants to provide a well-
designed project that will be enhance the appearance of the property through reducing the size of
the building, not exceeding the existing developed footprint of the site, lowering the elevation of
the parking as compared to existing conditions, increase the distance between the parking and the
appellants homes, and providing additional landscaping both on and adjacent to the project. The
proposed project will be far less impactful on the community than re -tenanting the existing
building and using the existing, uncovered parking lot.
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Mayor Will O'Neill and Councilmembers
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In conclusion, we ask the Council to move forward with the scheduled May 12, 2020,
hearing and uphold the Planning Commission's approval of the 215 Riverside project.
Very truly yours,
Manatt Phelps & Phillips, LLP
S U4a-w K. Ho-ril
Susan K. Hori
cc: Seimone Jurjis
Gregg Ramirez
James Campbell
Makana Nova
Yolanda Summerhill, Esq.
Aaron Harp, Esq.
Scott Laidlaw
326256109.1
manatt
May 12, 2020
VIA E-MAIL
Mayor Will O'Neill and Councilmembers
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Susan K. Hori
Manatt, Phelps & Phillips, LLP
Direct Dial: (714) 371-2528
shori@manatt.com
Client -Matter: 63060-030
Re: 215 Riverside - City Council Hearing, May 12, 2020, Agenda Item 21;
Response to Oral and Written Comments Submitted for and at the April 28,
2020 Hearing
Dear Mayor O'Neill and City Councilmembers:
This letter is sent on behalf of Laidlaw Schultz Architects ("Applicant"), the applicant for
The Garden Office and Parking Structure Project at 215 Riverside ("Project"). The Project was
approved by the City's Planning Commission on October 17, 2019, and an appeal of the
Planning Commission's approval was filed on October 31, 2019, ("Appeal") by the four
individuals whose homes are adjacent to the Project site ("Appellants"). The City Council's
public hearing on the appeal was opened on April 28, 2020, but due to technical issues, the item
was continued to May 12, 2020. The day before the April 28, 2020, City Council hearing, Mr.
David Tanner, a consultant connected with the Appellants, submitted more than 50 pages of last-
minute correspondence opposing the Project, including an arborist report dated March 23, 2020.
Despite having been prepared a month before the hearing, it was only submitted the day before
and was not provided to the Applicant despite the ongoing negotiations between the Applicant
and Appellants that were occurring between April 14 and April 28. Unfortunately, the Tanner
correspondence included numerous factual and legal errors which we were only partially able to
address during the Applicant's presentation at the April 28th hearing, but would like to correct for
the record. In addition, Mr. Aaron Ehrlich, attorney for the Appellants, made similar inaccurate
and misleading statements during his presentation to the City Council on April 28, 2020, which
are also addressed in this letter.
I. The CEQA Class 32 Exemption: Both Mr. Tanner and Mr. Ehrlich grossly
misinterpret the statutes, regulations and case law applicable to the City's use of the
CEQA Exemption for this Project.
Both Mr. Tanner's letter and Mr. Ehrlich's presentation to Council allege that the City
has been remiss in not analyzing a myriad of impacts—ranging from light and glare,
liquefaction, views from West Coast Highway, as well as off-site impacts to an oak tree on
695 Town Center Drive, 14th Floor, Costa Mesa, California 92626 Telephone: 714.371.2500 Fax: 714.371.2550
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private property, to just name only a few. These allegations ignore the basic purpose of
categorical exemptions and the well-established rules for their implementation.
Categorical exemptions are classes of projects that the California Natural Resources
Agency has predetermined do not have a significant effect on the environment. (Pub. Resources
Code § 21084(a).) Where a project fits within the four corners of a categorical exemption, that
project is presumed to have no significant impacts, and a public agency is not required to analyze
whether or not significant impacts will occur, unless specifically required as part of the
exemption analysis. For a Class 32 Infill Development Exemption, the scope and type of
impacts that are analyzed is severely limited, as discussed below.
A. City staff properly determined that the Project fits within the four corners of
the Class 32 Infill Development Exemption; staffs determination is
supported by substantial evidence; and the Appellants have failed to show
that staffs determination is arbitrary and capricious, which is Appellants'
burden.
A project fits within the Class 32 Infill Development Exemption when it meets five
criteria. Mr. Tanner and Mr. Ehrlich agree that the Project satisfies two of the criteria, but
disagree with staff's determination that the following three criteria are met here:
■ The project is consistent with the applicable general plan designation and all
applicable general plan policies as well as with applicable zoning designation and
regulations (State CEQA Guidelines § 15332(a));
■ The project site has no value as habitat for endangered, rare or threatened species
(State CEQA Guidelines § 15332(c)); and
■ Approval of the project would not result in any significant effects relating to traffic,
noise, air quality, or water quality (State CEQA Guidelines § 15332(d)).
City staff's determination that the three criteria have been met is based upon staff's own
analysis and interpretation of the City's policies, and the analyses and determinations provided
by technical experts in the fields of noise, traffic, hydrology, water quality, biological resources,
and wetland delineation. City staff's technical expertise, as well as the several technical studies
and reports reviewed by City staff and City Council, constitute substantial evidence supporting
staff's determination. Where an agency, such as the City, determines that a project qualifies for
a categorical exemption, and that determination is supported by substantial evidence, this is
enough to sustain application of the exemption. CEQA is clear that conjecture, statements
unsupported by fact, speculation, fear, layperson opinion, and even contrary expert opinion do
not require the City to overturn its determination that an exemption applies.
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1. The Proiect is Consistent with General Plan Policies.'
Mr. Tanner claims that the Project is not consistent with eight separate General Plan
policies, and on this ground, does not meet the criterion in State CEQA Guidelines Section
15332(a). None of Mr. Tanner's allegations have merit. In most cases, he is reading nonexistent
requirements into the City's policies that simply cannot be supported by the General Plan's plain
text. In other instances, Mr. Tanner claims that purely speculative impacts will occur and on this
basis, an inconsistency is found. In all cases, he is incorrect.
General Plan Policy L U 1.3
For example, Mr. Tanner claims the Project is not consistent with General Plan Policy
LU 1.3, because the Project will "grade into the Coastal Bluff." But Policy LU 1.3 in no way
prohibits grading. The policy requires protection of the natural setting "that contributes to the
character and identity of Newport Beach" and preservation of resources that include beaches,
parks, bluffs, preserves and estuaries. Mr. Tanner provides no evidence that the Project results in
the loss of "character and identity" or fails to "preserve" open space resources. The Project
redevelops an existing commercial building and existing paved parking lot. It is not located in a
"natural setting," but rather surrounded on all sides by urban development, including the
Appellants' own homes which are all situated on the face of a bluff. The Project also does not
grade into the bluff. There is an existing retaining wall that separates the Project site from the
adjacent properties. Project grading stops in front of the retaining wall. Mr. Tanner admits that
the site is "100% disturbed." This redevelopment will not frustrate the ability of the City to
protect its character, identity, and open space resources, which is how General Plan
"consistency" is defined. (See Families Unafraid to Uphold Rural El Dorado County v. Board
of Supervisors of El Dorado County (1998) 62 Cal.App.4t'' 1332, 1336.)
General Plan Policy L U 3.7
Mr. Tanner also alleges that the Project is inconsistent with General Plan Policy LU 3.7
because the Project will grade into a bluff, impact the root system of the adjacent privately -
owned oak tree, impact the wetland area adjacent to Avon Street, and jeopardize stability of the
slope. Yet Mr. Tanner provides no substantial evidence that any of these purely speculative
horribles will occur. As stated above, the Project will not extend beyond the existing retaining
1 Mr. Tanner also asserts that the Project is inconsistent with sections of the Local Coastal Program and
the California Coastal Act, however these allegations are out of the purview of the Class 32 Infill
Development Exemption analysis. State CEQA Guidelines Section 15332(a) asks whether the proposed
project is consistent with the agency's general plan and zoning only. Of course, these issues are relevant
to whether all appropriate findings have been made for approval of a Coastal Development Permit. See
Section IV., infra.
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wall. The only habitat area is a wetland that is characterized as "low value" (see Technical
Memorandum to Gregg Ramirez and Makana Nova, City of Newport Beach from Tony
Bomkamp, Glenn Lukos Associates, dated September 23, 2019, ("GLA Technical
Memorandum")), in which the Project "would have no potential to affect" (id.) and, in fact,
increases the distance from as compared to existing conditions. Even more, Mr. Tanner provides
no proof showing that the myriad expert technical reports concluding no impacts will occur are
wholly unreasonable, which is Appellants' burden under CEQA. Further, Policy LU 3.7 is
concerned with "protect[ing] areas with high natural resource value and protect[ing] residents
and visitors from threats to life or property." Again, the Project site is fully disturbed, and there
is absolutely no evidence that the Project will present "threats to life or property" after adherence
to the City's building code and conditions of approval.
General Plan Policy L U 5.2.2
Mr. Tanner's allegation that the Project is not consistent with General Plan Policy LU
5.2.2 is similarly unsupported. He states that because the Project will "minimiz[e] the horizontal
buffer between the proposed Project and existing residential uses" it runs afoul of this policy.
But neither Policy LU 5.2.2 nor any other general plan or zoning requirement mandate a specific
setback distance that this Project violates. In reality, the Project maintains the same horizontal
distance between the Project and the Appellants' properties as under existing conditions and
increases the vertical distance between the properties and the new parking area. The Project also
increases the distance between the Project and the adjacent wetland area by 10 feet. Further,
Policy LU 5.2.2 encourages the use of "landscape, decorative walls, enclosed trash containers,
downward focused lighting fixtures, and/or comparable buffering elements" as well as high
quality architectural design, and these types of buffering and design elements are proposed as
part of the Project, as detailed in the Staff Report.
General Plan Policy LU 6.16.5
Mr. Tanner alleges that the Project will attract homelessness, drug use, and after hour
partiers, and this is not consistent with General Plan Policy 6.16.5. But Mr. Tanner's speculative
fears are not based on any facts, and regardless, General Plan Policy 6.16.5 requires that the City
"work with local businesses" and consider "strategies" to address disruption. Nothing about the
proposed Project is inconsistent with this policy or prevents the City from working with local
businesses. And, in fact, the Applicant has agreed to conditions of approval that would limit the
hours cars can enter the upper parking level, and lighting used on the upper level.
General Plan Policy LU 6.16.6
Mr. Tanner also claims that impacts relating to lighting and noise, and an invasion of
privacy, will occur, and this is inconsistent with General Plan Policy LU 6.16.6. But putting
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such a statement in writing does not make it true. Projects that qualify for a categorical
exemption, including the Class 32 Infill Development Exemption, are presumed to not result in
aesthetic impacts. The Applicant has offered to provide a highly -foliated trellis over all parking
spaces on the upper level of parking, and has relocated the HVAC units to the lower (fully
enclosed) level of parking. Moreover, the upper level of parking will actually be farther away
from the adjacent homes as compared to existing conditions, and no trash storage or truck
deliveries are contemplated on the upper parking area. As discussed below, substantial evidence
supports City staff's determination that no significant noise impacts will occur.
General Plan Policy LU 6.19.12
To support his allegation that the Project is not consistent with General Plan Policy LU
6.19.12, Mr. Tanner claims all manner of impacts on the adjacent privately -owned oak tree, the
wetland area adjacent to Avon Street, and claims that the Project must restore the slope face with
native vegetation. But Policy LU 6.19.12 requires only that "projects locate and design buildings
to maintain the visual quality and maintain the structural integrity of the bluff faces." Staff has
explained that the Project will actually reduce the building profile from existing conditions,
lower the elevation of the parking lot and increase the distance from the Appellants' properties as
compared to the existing surface lot, and actually improve the visual quality of the site, which
currently is an outdated commercial building. There is absolutely no requirement, in either
Policy LU 6.19.12 or elsewhere, that mandates a private property owner must restore a slope face
that was developed decades ago, and then replant it with native vegetation, instead of replace its
existing commercial use with a new, but lower -profile, commercial use. Further, the
geotechnical report prepared for the Project determined there will be no loss of structural
integrity of the slope, and Mr. Tanner provides no substantial evidence showing that the
geotechnical report is unreasonable, arbitrary, or capricious.
General Plan Policies NR 10.4 and 10.6
Finally, Mr. Tanner also alleges that the Project is not consistent with General Plan
Policies NR 10.4 and 10.6, primarily on grounds that the Project will "impact surface and
subsurface hydrology" of the wetland area adjacent to Avon Street, and the "root system and
hydrology" of the adjacent privately -owned oak tree. However, he provides absolutely no
evidence of either, let alone explains how the technical reports concluding no impacts will occur
are grossly erroneous.
plan:
Cities are given considerable deference in their own interpretation of their own general
[A] governing body's conclusion that a particular project is consistent with the relevant
general plan carries a strong presumption of regularity that can be overcome only by a
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showing of abuse of discretion. "An abuse of discretion is established only if the
[governing body] has not proceeded in a manner required by law, its decision is not
supported by findings, or the findings are not supported by substantial evidence." (Napa
Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91
Cal.App.4th 342, 357; see also Sequoyah Hills Homeowners Assn. v. City of Oakland
(1993) 23 Cal.AppAth 704, 717; City of Walnut Creek v. County of Contra Costa (1980)
101 Ca1.App.3d 1012,1021-1022.)
Further:
A project is consistent with the general plan if, considering all its aspects, it will further the
objectives and policies of the general plan and not obstruct their attainment. [citation] A
given project need not be in perfect conformity with each and every general plan policy.
[citation] To be consistent, a [project] must be "compatible with" the objectives, policies,
general land uses and programs specified in the general plan. (Families Unafraid to
Uphold Rural El Dorado County v. Board of Supervisors of El Dorado County, supra, 62
Cal.App.4th at p. 1336.)
Under these highly deferential rules, Mr. Tanner has failed to show that the Project is not
"compatible with" the general plan, or frustrates the general plan's implementation. Similarly,
Mr. Tanner has failed to show that the City's own interpretation of its General Plan policies is
wholly unsupported and an "abuse of discretion" – a very high bar to meet.
Given that the Project is consistent with the General Plan, the Project meets the criterion
in State CEQA Guidelines Section 15332(a) for application of the Class 32 Infill Development
Exemption.
2. The Proiect Site Lacks Habitat value.
State CEQA Guidelines Section 15332(c) permits use of the Class 32 Infill Development
Exemption where "the project site has no value as habitat for endangered, rare or threatened
species." Mr. Tanner's letter admits that the Project site is "100% disturbed" and "totally
disturbed" yet also argues that the Project fails to meet this criterion for the Class 32 Infill
Development Exemption. Mr. Tanner's argument seems to be tied solely to alleged (but
unsupported) offsite impacts to the wetlands areas adjacent to Avon Street and the adjacent
privately -owned oak tree—neither of which are located on the Project site. Section 15332(c) is
not concerned with off-site impacts to biological resources, generally. It is solely concerned with
the existence of (1) onsite, (2) habitat, for (3) endangered, rare, or threatened species. Mr.
Tanner points to no evidence of onsite biological resources, let alone habitat for any identified
endangered, rare, or threatened species.
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Neither the City staff, nor its technical consultants identified any endangered, rare or
threatened species or habitat on or adjacent to the Project site. In fact, the GLA Technical
Memorandum concluded that "the wetland exhibits very limited functions for wildlife, given the
immediate surroundings, larger urban environment, very high `edge to habitat area' ratio and the
general low -value of cattails as habitat for special -status plants and animals." (GLA Technical
Memorandum at p. 4.) No evidence has been provided that the oak tree is habitat for
endangered, rare or threatened species.
If Mr. Tanner believes that the adjacent privately -owned oak tree has roots that extend
beneath the Project site, even this would not trigger inapplicability of the Class 32 Infill
Development Exemption. First, there is no evidence that the oak tree has roots that extend
beneath the Project site. The oak tree is surrounded on two sides by retaining walls, and on its
third side by a private house. Moreover, subterranean roots are not "habitat" supporting
"endangered, rare or threatened species." Further, coast live oak (Quercus agrifolia) is not an
endangered, rare or threatened species. The species is not listed on the California Threatened or
Endangered Plant Species List, and the California Native Plant Society ranks the species as "S4"
indicating the species is "apparently secure" and "uncommon but not rare."2 Mr. Tanner's
opinion does not overrule the expertise of the California Department of Fish and Wildlife, or the
California Native Plant Society. "Unsubstantiated opinion or narrative" does not constitute
substantial evidence. (State CEQA Guidelines § 15384.) "Expert opinion supported by facts"
does constitute substantial evidence. (Id.)
Mr. Tanner implies that the City was required to complete "focused surveys for
endangered, rare or threatened species" and a "biological impact assessment" to determine
potential impacts. This is wholly inconsistent with the purpose and application of an exemption.
As discussed above, when a project falls within the four corners of an exemption, an agency is
not required to continue on to the assessment of potentially significant impacts. If this were
required, there would be absolutely no purpose to having categorical exemptions in the first
instance. The California Supreme Court has expressly held that interpretations of the State
CEQA Guidelines resulting in exemptions having "little purpose" must be rejected. (Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1099, 1102 ["Berkeley Hillside
r'1•)
To fall within the four corners of the Class 32 Infill Development Exemption, a project
cannot have onsite habitat for endangered, threatened or rare species, and here, Mr. Tanner
admits that the site is "100% disturbed." There is no need to complete focused endangered
species surveys of a paved parking lot and commercial office building. In reality, even though
not required by CEQA, in compliance with the Coastal Act, the City had a wetland delineation
and evaluation conducted by Glenn Lukos Associates for the only biologically sensitive area
2 The California Native Plant Society ranks plants on a scale of S1 (Critically Imperiled) to S5 (Secure).
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near the Project site. Although the focus of the GLA Technical Memorandum was the wetland
area, the GLA Technical Memorandum surveyed and made observations regarding the developed
nature of the Project site as well as the vegetation surrounding the wetland area. No endangered,
rare or threatened species were identified, and no impacts to biological resources would occur.
Mr. Tanner's conclusion that "there is a `reasonable possibility' the proposed Project will
impact habitat for endangered, rare or threatened species and therefore does not qualify for a
Class 32 exemption" fails on multiple counts. First, the Class 32 Infill Development Exemption
applies when there is no valuable habitat onsite, which Mr. Tanner admits. Second, Mr. Tanner
does not identify a single endangered, rare or threatened species allegedly impacted by the
Project—these are legal designations, assigned by the California Department of Fish and
Wildlife, and no such designation applies to coast live oak. Third, whether there is a "reasonable
possibility" of an impact is not the legal test for when an exemption can apply. Fourth, even if it
were, Mr. Tanner provides no substantial evidence, only "[a]rgument, speculation, [and]
unsubstantiated opinion" which does not constitute "substantial evidence." (State CEQA
Guidelines § 15384.)
Given the above, the Project meets the criterion in State CEQA Guidelines section
15332(c) because there is absolutely no valuable habitat for endangered, rare, or threatened
species located on this "100% disturbed" and fully developed existing commercial site.
3. The Proiect Has No Traffic, Noise, Air Quality or Water Quality
Impacts.
State CEQA Guidelines Section 15332(d) permits use of the Class 32 Infill Development
Exemption where "approval of the project would not result in any significant effects relating to
traffic, noise, air quality, or water quality." Mr. Tanner alleges that the Project will result in
impacts relating to traffic and noise.3 Yet, as with his other allegations, these similarly have no
merit.
3 Mr. Tanner also alleges that the Project will result in impacts relating to lighting, views, hydrology,
safety hazards, and seismicity. However, none of these unsupported allegations are relevant to the
question of whether the Project falls within the four corners of the Class 32 Infill Development
Exemption. This is because the only impacts that an agency must consider in determining whether this
exemption applies are impacts to onsite habitat, traffic, noise, air quality, and water quality. (State CEQA
Guidelines § 15332.) This is because the legislature's intent in providing categorical exemptions in the
first place is to streamline and dramatically reduce environmental review for projects that qualify. If an
agency were required to analyze the potential for all and any impacts, before it could assert an exemption,
there would be no purpose to providing categorical exemptions at all. Such an interpretation of
categorical exemptions has been expressly invalidated by the California Supreme Court. (Berkeley
Hillside I, supra, 60 CalAth at pp. 1099, 1102.)
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City staff's determinations that the Project will not result in traffic or noise impacts are
based upon expert technical analyses, that include, but are not limited to, traffic generation
calculations and a detailed noise study. Staff's analysis, the trip calculations prepared by City
staff, and the noise studies prepared by a professional consulting firm with technical expertise in
acoustic measurements and modeling, constitute substantial evidence supporting staff's
determination that no significant traffic or noise impact will occur. Mr. Tanner does not provide
any expert testimony or point to any facts supporting the opposite conclusion, and even if he had,
this is not enough to overturn staff's conclusions. Under the substantial evidence standard,
which applies to staff's determination, Mr. Tanner must point to the evidence supporting staff's
determination and explain why it is lacking. He does not do so.
Regarding traffic impacts, Mr. Tanner complains only of vague and undefined impacts
relating to "turning movements," public safety, and construction trips. But the traffic analysis
determined that the Project would generate no more than 48 trips on a typical weekday, the vast
majority of which will occur during off-peak hours. This represents a 248 trip reduction when
compared to the existing and operating uses. As such, it is reasonable to conclude that no new
impacts associated with turning movements or public safety would occur above the existing
condition baseline. In regards to construction trips, the City's Conditions of Approval
("Conditions") address how construction trips are controlled to avoid disruption. The Conditions
require that carpooling for construction workers be encouraged, lane closures for construction be
limited to off-peak travel periods, and that construction vehicles be parked only off traveled
roadways. Further, the Conditions require an encroachment permit for all work activities within
the public right-of-way, reconstruction of any damage to public improvements occurring during
construction, and preparation of a construction management and delivery plan to be reviewed
and approved by the Public Works Department. The plan shall include construction parking
arrangements and anticipated haul routes. Finally, the Conditions require that all traffic control
and truck route plans be reviewed and approved by the Public Works Department, and prohibit
large construction vehicles from traveling narrow streets. Disruption caused by construction
work along roadways and by movement of construction vehicles shall be minimized by proper
use of traffic control equipment and flagmen.
Mr. Ehrlich's presentation at the April 28, 2020, City Council hearing claimed that the
Project's trip generation counts should have considered trips associated with the parking
structure, not just the office building. However, parking structures alone do not generate new
traffic trips—trips are generated by the commercial or entertainment uses that the parking
structure will serve. As reported in the RK Engineering Group, Inc. report, dated January 10,
2020, "[o]n their own, parking facilities are not a trip -generating land use and for this same
reason, the Institute of Transportation Engineers (ITE) Trip Generation Manual, which is the
industry standard guide for trip generation estimation of various land uses, does not have any trip
rates associated with parking facilities." (Letter from Alex Tabrizi, RK Engineering Group, Inc.
dated January 10, 2020, a copy of which is attached.) Moreover, at this time it is entirely
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Mayor Will O'Neill and Councilmembers
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speculative which commercial uses will seek to lease parking spaces in the Project's parking lot.
Thus, there could be no meaningful way to analyze traffic patterns from those uses now.
Regardless, the uses that lease space in the Project's parking lot will likely be in the near
vicinity, within walking distance. The trips those uses will generate are likely already existing
and present in the area. New uses that may choose to lease parking space in the Project's lot will
have their traffic impacts analyzed as part of their own entitlement process, as those are the uses
that generate the traffic trips. In fact, that is what the City's Municipal Code requires.
Newport Beach Municipal Code ("NBMC") Section 20.40. 100 requires approval of a
conditional use permit for any portion of required parking that is not located on the same site it is
intended to serve. If any off-site uses wish to lease spaces at the Project, the City must conduct
an analysis and find that the "use of the parking facility will not create undue traffic hazards or
impacts in the surrounding area." (NBMC § 20.40.100.13.3.)
Regarding noise, Mr. Tanner acknowledges that detailed acoustical studies were
completed, but nonetheless insists that impacts will occur, even though the acoustical studies
determined otherwise. Mr. Tanner provides no substantial evidence in support of his allegation,
instead claiming that the acoustical studies' determination was based on a flawed methodology
whereby "noise generated by the Project will be averaged over a 24-hour period (minimizing the
noise generated to less than significant levels in compliance with the City Noise Ordinance)." In
fact, the analysis applied a highly -conservative and worst-case scenario approach. The City's
Municipal Code directs that where existing noise levels are higher than the Code's base exterior
noise level standards (which do not account for existing ambient noise), the existing ambient
noise levels become the standard by which a new project must comply. Here, existing noise
levels are higher than the Code's base levels, but the study nonetheless applied the base levels as
the standard. Further, the study assumed that the Project's roof -top air conditioner units and
parking structure vehicle movements will occur 24 -hours per day, which will not be the case.
Yet, even with the more conservative approach, the study determined that no significant impact
(i.e., no noise above the standards set by the Code's base levels) will occur. The conclusions of
the technical study were reviewed by City staff, and staff, in its own expertise, concurs with the
report's findings. Staff's conclusion that no significant noise impacts will occur is further
supported by the fact that the Project will comply with all applicable provisions of the City's
Noise Ordinance.
Given the above, the Project meets the criteria in State CEQA Guidelines Section
15332(d) because it will not result in significant impacts relating to traffic or noise.
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B. Neither the cumulative impacts exception, nor the unusual circumstances
exception, apply here. Appellants' arguments directly contradict established
case law interpreting these exceptions.
Once an agency decides, on the basis of substantial evidence, that a project falls within
the four corners of a categorical exemption, that project is presumed to have no potentially
significant environmental impacts and that project is not required to undergo any further
environmental review. The only way this presumption is overturned is if one of six "exceptions"
identified in State CEQA Guidelines Section 15300.2 applies. Here, Mr. Tanner alleges that two
of the exceptions disqualify use of the Class 32 Development Infill Exemption. Neither
allegation is true and both are based on a complete misunderstanding of how the exceptions are
applied.
1. The Cumulative Impacts Exception Is Not Applicable.
First, Mr. Tanner alleges that the Project will cause cumulatively significant impacts to
scenic resources impacting West Coast Highway and Coastal Bluffs. Mr. Tanner claims that the
City is required to consider the Project's impacts to scenic resources together with other
proposed projects within Mariners Mile, and claims that the City was required to provide a
cumulative projects list of all similar projects in the area. Mr. Ehrlich made similar comments
during his April 28, 2020, presentation to City Council, stating that the cumulative impacts of
this Project must be considered along with the impacts of the pending Newport Village Project.
Both Mr. Tanner and Mr. Ehrlich mistake the scope of the cumulative impacts exception (which
applies to categorically exempt projects) with the scope of a cumulative impacts analysis
required when an agency prepares an environmental impact report (`BIR").
The cumulative impacts exception reads: "All exemptions... are inapplicable when the
cumulative impact of successive projects of the same type in the same place, over time is
significant." The analysis of cumulative impacts under this exception is significantly different
from how cumulative impacts are analyzed in EIRs. In an EIR, a project's impacts are
considered together with those of other past, present, and reasonably foreseeable future projects.
But for purposes of the cumulative impacts exception, we follow the clear directive of the Court
of Appeal in San Francisco Beautiful v. City and County of San Francisco (2014) 226
Cal.App.4th 1012. There, the Court held that the only relevant projects are those in the exact
same location and any other interpretation would result in the exception swallowing the rule, and
vitiating any utility of the categorical exemptions in the first place. The California Supreme
Court has expressly held that interpretations that result in exemptions having "little purpose"
must be rejected. (Berkeley Hillside I, supra, 60 CalAth at pp. 1099, 1102.) Here, it is not
reasonable to assume that additional grading, additional parking areas, or additional buildings
will be constructed on the Project site, or even on the same slope. Therefore, the cumulative
impacts exception does not apply.
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2. The Unusual Circumstances Exception is Not Applicable.
Second, Mr. Tanner alleges that myriad "unusual circumstances" are present that will
result in a "reasonable probability" that a significant impact will occur. However, this is not how
the unusual circumstances exception works. In fact, the leading Supreme Court case interpreting
the unusual circumstances exception expressly holds that the unusual circumstances exception is
not satisfied by a mere "reasonable possibility" that an activity will have a significant effect on
the environment. (Berkeley Hillside I, supra, 60 Cal.4th at pp. 1098, 1102.) "Such a showing is
inadequate to overcome the [Natural Resources Agency's] determination that the typical effects
of a project within an exempt class are not significant for CEQA purposes." (Id. at p. 1105.)
In Berkeley Hillside Preservation v. City of Berkeley (2015) 60 CalAth 1086, the
California Supreme Court outlines how and when this exception precludes the use of a
categorical exemption. For this exception to apply, first, an "unusual circumstance" must be
identified. An "unusual circumstance" is "some feature that distinguishes it from others in the
exempt class." (Id. at p. 1105; see also Berkeley Hillside Preservation v. City of Berkeley (2016)
241 Cal.AppAth 943, 952 ("Berkeley Hillside If').)
Examples from case law of "unusual circumstances" include execution of a contract to
allow auto racing at a county fairground surrounded by residential uses (Bloom v. McGurk
(1994) 26 Cal.AppAth 1307, 13 12) and the presence of hazardous wastes on property purchased
by an open space district (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1149).
Examples of circumstances that a court has held to not constitute "unusual
circumstances" include construction of a house six -times larger than the average home in the
same city and on a steep hillside (Berkeley Hillside II, supra, 214 Cal.App.4th at pp. 956-958),
the use of a commercial site as a parole office (City of Pasadena v. State of California (1993) 14
Cal.App.4th 810, 826), projects with height, view and privacy impacts on only a few persons
(Association for Protection of Environmental Values in Ukiah (1991) 2 Cal.App.4th 720, 734),
residential development on a hillside (ibid), and adoption of a resident -only, permit -required
parking district (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101
Cal.App.4th 786, 801).
None of the "unusual circumstances" alleged by Mr. Tanner comport with the above-
described case law. Most of the "unusual circumstances" argued by Mr. Tanner are actually
allegations of a possible environmental effect (on the adjacent privately -owned oak tree, on the
wetland area adjacent to Avon Street, or the "possibility" of lighting impacts on residential uses).
But as clearly held by the Supreme Court, the unusual circumstances exception is not satisfied by
a mere "reasonable possibility" that an activity will have a significant effect on the environment.
(Berkeley Hillside I, supra, 60 CalAth at pp. 1098, 1102.) "Such a showing is inadequate to
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Mayor Will O'Neill and Councilmembers
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overcome the [Natural Resources Agency's] determination that the typical effects of a project
within an exempt class are not significant for CEQA purposes." (Id. at p. 1105.)
Mr. Tanner also alleges that the Project's distance from the wetland area adjacent to
Avon Street constitutes an unusual circumstance, but Mr. Tanner confuses the unusual
circumstances exception with the "location exception" of State CEQA Guidelines Section
15300.2(a), which expressly and tellingly does not apply to the Class 32 Infill Development
Exemption. Further, for all the reasons discussed above, Mr. Tanner's allegation that "there is a
reasonable possibility the Project will negatively impact the Avon Wetlands" is not enough to
invoke the unusual circumstances exception. The geographical extent of a wetland is based upon
the presence of several conditions, which include subsurface water, hydric soils, and wetland
indicator plant species — not merely the extent of water after a heavy rainfall. Mr. Tanner's
statements that he has observed the wetlands extending farther than the reaches described in the
GLA Technical Memorandum are not supported by any substantial evidence, in that they do not
describe the presence of subsurface water, hydric soils, or hydrophytic vegetation. It is unclear
how Mr. Tanner is defining "wetland," what evidence Mr. Tanner considered in applying his
definition, or what wetland delineation protocol (which is established by statute and regulation)
he applied, if any.
Mr. Tanner also claims, "It really an [sic] unusual circumstance when a city would not
require a comprehensive geotechnical investigation based on current science ...." But "unusual
circumstances" are project features, and regardless, a geotechnical study was completed for the
Project.
Finally, Mr. Tanner alleges that the presence of a parking lot next to residential
development is an unusual circumstance, but a parking lot is currently adjacent to residential, on
this exact Project site, and on several sites throughout the City. This also does not constitute an
unusual circumstance under the relevant case law.
Because no unusual circumstances are present, the unusual circumstances exception does
not apply, and the City's determination to use a Class 32 Infill Development Exemption is
supported by the law and facts.
II. In addition to the Class 32 Infill Development Exemption, the Class 2 Replacement
or Reconstruction Exemption and the Class 3 New Construction Exemption also
apply to the Project.
State CEQA Guidelines Section 15302 exempts from further environmental review the
"replacement or reconstruction of existing structures and facilities where the new structure will
be located on the same site as the structure replaced and will have substantially the same purpose
and capacity as the structure replaced." Here, an existing commercial office building is being
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replaced with a smaller updated commercial office building. While the site will accommodate
more onsite parking than the existing condition, parking is an ancillary use to the commercial
use, which will actually decrease in size. Thus, the Class 2 Replacement or Reconstruction
Exemption also applies to the Project.
State CEQA Guidelines Section 15303 exempts from further environmental review the
construction of new, small facilities or structures. The exemption expressly applies to up to four
office buildings not exceeding 10,000 square feet in floor area on sites zoned for such use. Here,
only one office building is proposed, and it will contain only 2,744 square feet. The Project is
consistent with the site's zoning. Therefore, the Project also clearly falls within the four corners
of the Class 3 New Construction Exemption.
III. Mr. Tanner's request that the City delegate its decisionmaking authority to an
"independent third party" violates CEQA.
Mr. Tanner requests that the City hire an "independent third party to determine if the
Project qualifies for a Class 32 exemption" and this third parry shall have "no connection what so
ever to the City...." Yet CEQA mandates that decisions made under CEQA be made by the lead
agency for a proposed project—a lead agency may not delegate this authority to any third parry.
Thus, Mr. Tanner's request should be rejected.
IV. The Project is Consistent With Applicable Coastal Act and Local Coastal Program
("LCP") Policies.
In addition to presenting unsupported allegations of General Plan policy inconsistency
and CEQA compliance, Mr. Tanner's correspondence also raises questions regarding the City's
compliance with Coastal Act policies — specifically, Section 30240 of the Coastal Act that
addresses environmentally sensitive habitat areas or "ESHAs". Because many of the Coastal Act
policies are reflected in the City's General Plan policies, we incorporate by reference our prior
analysis addressing Mr. Tanner's allegations regarding General Plan consistency.
Section 30240(a) of the Coastal Act provides that "[e]nvironmentally sensitive habitat
areas shall be protected against any significant disruption of habitat values, and only uses
dependent on those resources shall be allowed within those areas." As all have acknowledged,
there are no ESHAs on the Project site. Under the Coastal Act, wetlands may be considered
ESHA if determined by the Coastal Commission. No such determination has been made, but
even if the wetlands were treated as ESHA, the Project is not inconsistent with Section 30240.
The Project avoids any impact to the wetlands and will not disrupt or disturb its limited habitat
values, and increases the distance between the Project development and the wetlands by 10 feet
over existing conditions thus addressing the subsection (b) of Section 30240 as well. Neither the
oak tree nor the existing bluff area — on which the Appellants' houses are built — have been
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Mayor Will O'Neill and Councilmembers
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designated ESHA under the City's LCP. As discussed previously, the Project development will
not impact the oak tree, and will not impact any portion of the bluff not already impacted by
existing development. By staying within the existing footprint of development, the Project has
been sited and designed to prevent impacts to the oak tree, bluff and wetland — even though none
of those features are designated as ESHA.
Coastal Land Use Policy 4.2.2.3 and LCP Section 21.30B.040. C
Coastal Land Use Policy 4.2.2.3 and LCP Section 21.30B.040.0 both pertain to wetland
buffers. Generally, new development should be sited a minimum of 100 feet away from a
wetland whenever possible. Exceptions allowing a smaller buffer are permitted when a 100 foot
buffer is not possible due to site-specific constraints and the smaller buffer would be amply
protective of the biological integrity of the wetland given site-specific characteristics of the
resource and type and intensity of disturbance. The Project's consistency with both the policy
and LCP Section are addressed in the GLA Technical Memorandum.
The existing parking lot is approximately 29 feet from the mapped edge of the wetland
which is created as a result of a low point at the foot of the slope and the improvements on Avon
Street, i.e., curb and gutter. The proposed Project will "pull back" from the edge of the wetlands
by an additional 10 feet creating approximately 39 feet of separation between the edge of
development and the wetlands. Increasing the amount of separation is not physically feasible as
it would limit use of a significant portion of the Project site which is already developed, and
given the existing site specific conditions (i.e., adjacency to Avon Street and existing
development, and the low value habitat) the proposed 39 foot buffer would provide greater
protection than the existing condition. The GLA Technical Memorandum concluded that the
"39 -foot set back in the final configuration would provide more than adequate protection of the
wetland, given that it is of low value and within one or two feet from Avon Street for the entire
length." (GLA Technical Memorandum at page 5.) The Project — during construction and
operation — "would have no potential to affect the wetland directly through dredging, filling, or
other alteration [and] has not [sic] potential to adversely affect the Avon Street Wetland." (Id.)
The Project is consistent with Coastal Land Use Policy 4.2.2.3 in that the 39 -foot buffer is not
possible due to site-specific conditions and is protective of the biological integrity of the
wetland.
V. There is No Evidence that the Project Affects the Oak Tree on Private Property.
The Arborgate Letter Was Based on Inaccurate and Misleading Information.
Mr. Tanner's correspondence also alleges impacts to the root zone of the oak tree on the
adjacent private property. In support of his arguments, he has attempted to classify it as an
ESHA under the Coastal Act and LCP, which it is not. He has also implied that it is habitat for
endangered, rare and threatened species, which it is not. Lastly, he cites the March 23, 2020,
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Mayor Will O'Neill and Councilmembers
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letter prepared by Arborgate Consulting, Inc. ("Arborgate Letter") for one of the Appellants, Mr.
Hal Woods regarding the oak tree on the adjacent Staub property.
Unfortunately, the Arborgate Letter is based on a number of inaccurate and unsupported
assumptions and therefore, its conclusions are similarly flawed and lacking in factual support.
The Arborgate Letter acknowledges that its findings may not be wholly accurate as it concludes:
"This consultant was not given access to the site. All measurements are estimated or by others."
By its own admission, the author of the Arborgate Letter acknowledges that he has not verified
any of the information in his letter, nor has he inspected the site or examined the oak tree, its
actual condition, and its setting first hand. The conclusions and findings in the Arborgate Letter
are therefore — by the author's own admission — suspect.
First, the Arborgate Letter mischaracterizes the existing setting of the oak tree. The
Arborgate Letter observes that the tree's root zone is compressed on three sides because of the
retaining wall on the east that separates the Staub property from the City right of way and
sidewalk, and the house foundations on the north and west. What the Arborgate Letter fails to
disclose is that the only side of the tree and its root zone that is not constrained directly by the
Staub's wall or foundation is the southern edge that lies adjacent to 215 Riverside. Although
there is a retaining wall that separates the 215 Riverside Project site from the Staub property,
there is also a landscaped area that lies between the edge of the oak tree's south -facing canopy
and the 215 Riverside retaining wall.
The second factual misstatement in the Arborgate Letter concerns the impacts of Project
construction on the tree roots. The Letter states that the Project proposes the cutting of tree
roots. The Project does not propose, nor have any Project documents contemplated cutting of the
oak tree's roots. This assumption is clearly inaccurate and not based upon anything in the
Project's application. Third, the existing retaining wall that separates 215 Riverside from the
Staub property will remain as is and not be removed or otherwise affected by Project
construction. The Arborgate Letter mistakenly assumes that a new wall approximately 15 feet
from the trunk of the oak tree will be constructed by the Project. Again, this is wholly
inaccurate. While the Project will construct a new wall, it will be south of the existing retaining
wall, i.e., further away from the tree than the existing retaining wall, and approximately 42 feet
from the tree trunk. Lastly, the Applicant has agreed to have an arborist on site during work near
the perimeter of the Project site to ensure that measures are taken to avoid impacting City
protected trees. The arborist will also be available to observe the work in the vicinity of the
retaining wall that abuts the Staub property.
The Arborgate Letter then makes unsupported assumptions regarding the activities of the
contractors and possible leaks or spills. Again, these statements are not based upon any facts or
information in the application, let alone simple logic. The Arborgate Letter expresses concern
that contractors operating on a "confined site" will take advantage of "whatever space they can"
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Mayor Will O'Neill and Councilmembers
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for equipment storage. Although the Project site is not large, it is hardly confined once the
existing structures are demolished. As the existing retaining wall will remain unaffected by the
Project, there is no reason to believe that contractors would attempt to store equipment or
materials on the Appellants' properties in a manner that would impact the oak tree. Nor would it
make sense to store equipment or materials on the slope where the oak tree is located when the
Project site is open and flat. The recommended measures are therefore inapplicable and
unnecessary.
The oak tree's root zone is heavily constrained on the west, north and east by the
foundation for the Staub residence and the Staub retaining wall facing Riverside Drive. The only
side of the tree that is not directly constrained by a wall is the southern edge abutting 215
Riverside where there is a landscaped area between the tree's canopy and the existing retaining
wall. Since the existing retaining wall will remain unchanged, impacts to the oak tree or its root
zone are not anticipated. Clearly, the Arborgate Letter was written based upon false and
misleading information provided to the consultant — none of which are at all reflective of the
Project application. No root cutting is proposed; no new wall within 15 feet of the trunk is
proposed; no impacts to the oak tree are anticipated; and the Arborgate Letter's conclusions and
recommendations must be disregarded.
VI. Mr. Ehrlich's Testimony Was Based on Inaccurate Project Facts.
At the April 29, 2020, City Council hearing, Appellants' attorney, Aaron Ehrlich, made
several statements during his presentation that mis-states the Project's facts. First, Mr. Ehrlich
stated that the "proposed parking structure for this project gets within five feet of my clients'
properties." Mr. Ehrlich showed a photo with a yellow line drawn to represent the "Project
Site." While the yellow line may be a rough approximation of the property line, it does not
represent the actual footprint of development. As the attached exhibit depicts, the existing
retaining wall (which will not be changed by the Project) is approximately 11 feet from the
property line and approximately 39 feet from the closest habitable space (Mr. Woods' house).
However, given that the Appellants' homes are developed on property that is sloped — or on a
bluff face as their consultant would describe it — it is important to look not just at the "horizontal'
separation between the property line and retaining wall, but the vertical separation as well. As
the enclosed exhibit depicts, the upper level of parking will be 37 feet below the foundation of
the adjacent residence. The actual distance, line of sight from the property line to the closest
parking space is 32 feet, and 65 feet from the residence. Mr. Ehrlich's testimony implied that a
car would be parked 5 feet from the Appellants' house — this is simply not true.
Mr. Ehrlich also stated that there is no precedent for having uncovered parking adjacent
to single family homes, and warned against setting such a precedent. This again is simply
untrue. The existing building and parking lot at 215 Riverside places an uncovered parking lot
adjacent to single family homes — and at an elevation higher and closer than the proposed
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Mayor Will O'Neill and Councilmembers
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Page 18
Project. There are a number of uncovered parking lots that abut adjacent residences along
Pacific Coast Highway in the Mariner's Mile area, including the City's lot at Avon and Tustin.
The parking structure at Dover and Pacific Coast Highway was identified by the
Appellants as an example where the City required a roof on the top level of parking. That
project (Mariner's Pointe), however, is vastly different from the 215 Riverside Project.
Mariner's Pointe required a General Plan Amendment to increase the floor area ratio from 0.5 to
0.7 indicating a much more intensive development than allowed under the General Plan. Prior to
its development, the site was occupied by two, 1 -story commercial/retail buildings that had been
vacant for a number of years. Mariner's Pointe also required approval to exceed the height limit
from 31 feet to 40 feet, with the height of the roof structure on the upper level of parking at 35
feet. In contrast, the 215 Riverside Project is consistent with both the General Plan and zoning.
The maximum height of the building is less than what is allowed under the Zoning Code.
Instead of intensifying development, the 215 Riverside Project reduces the intensity of
development and lowers the elevation of the parking lot as compared to current conditions.
Finally, despite not having any significant noise or light impacts, the 215 Riverside Project will
cover the parking spaces with a foliated trellis structure to provide covering over the parking
areas. The two projects cannot be compared.
VII. Conclusion.
In conclusion, the Applicant requests the City Council to uphold the Planning
Commission approval of the 215 Riverside Project. The Project proposes the redevelopment of a
site that is currently occupied by a commercial office building and surface parking lot with a
smaller, more well-designed building and parking lot that is compatible with both the
surrounding residential area and commercial development and furthers the City's goals and
policies with respect to redevelopment and revitalization of the Mariner's Mile area.
Very truly yours,
Su4a4'vK. }fovv
Susan K. Hori
Enclosures
Cc: Seimone Jurjis
Gregg Ramirez
Jim Campbell
Makana Nova
Aaron Harp, Esq.
Yolanda Summerhill, Esq.
Scott Laidlaw
engineering
group, Inc.
January 14, 2020
Ms. Kaitlin Crowley
MOBILITIE
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
traffic engineering & design
transportation planning
parking
acoustical engineering
air quality & ghg
Subject: 215 Riverside Avenue Response to Comments - Parking Structure Trip
Generation
Dear Ms. Crowley:
RK ENGINEERING GROUP, INC. (RK) has been requested to assist in responding to a
comment regarding trip generation associated with parking structures relating to the
proposed project at 215 Riverside Avenue in the City of Newport Beach.
Parking structures and facilities on their own are not a trip -generating land use. Parking
facilities are constructed to serve the vehicles and trips associated with other surrounding
land uses nearby.
For instance, if a parking facility is constructed in the middle of the desert with no
surrounding land uses, there would be no trips or vehicles utilizing that parking facility.
Parking facilities support and absorb the trips and vehicles associated with and generated
by other land uses nearby such as retail, residential, industrial, etc.
On their own, parking facilities are not a trip -generating land use and for this same reason,
the Institute of Transportation Engineers (ITE) Trip Generation Manual, which is the
industry standard guide for trip generation estimation of various land uses, does not have
any trip rates associated with parking facilities.
Vehicles utilizing any parking facility are associated with trips that are being generated by
other land uses near the facility. These are trips that would be generated from the nearby
land use, regardless of the existence of the parking facility, or not. The parking facility only
provides parking spaces for those vehicles and on its own is not the generator of the trips.
4000 westerly place, ste. 280
newpert beach, ca 92660
(949) 474-0809
® rkengineer.com
MOBILITIE
RK 15729
Page 2
Additionally, through the use of access gates, keycards, and other means, access to parking
facilities can be limited to certain users or land uses, if needed.
RK appreciates the opportunity to assist on this project. If you have any questions
regarding this letter, please call us at (949) 474-0809.
Respectfully submitted,
RK ENGINEERING GROUP, INC.
Alex Tabrizi, PE, TE
Associate Principal
rk 15729. doc
®engleearint
group, Inc.
rkengineer.com
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