HomeMy WebLinkAboutSeashore Village Residential DevelopmentCITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
April 3, 2008 Meeting
Agenda Item No. q
SUBJECT: Seashore Village Residential Development (PA2007 -100)
5515 River Avenue
• Mitigated Negative Declaration
• Tentative Tract Map No. 2007 -001
• Modification Permit No. 2007 -044
• Use Permit No. 2007 -011
• Coastal Residential Development Permit No. 2007 -001
APPLICANT: Seashore Village, LLC
PLANNER: Jaime Murillo, Associate Planner
(949) 644 -3209, jmudllo @city.newport- beach.ca.us
RECOMMENDATION
Staff is requesting that the Planning Commission continue this item to the April 17, 2008
meeting date to allow staff additional time to prepare responses to comments received on
the Mitigated Negative Declaration from Lennie DeCaro and the Department of Toxic
Substances Control (attached). The applicant is aware of this request for a continuance
and does not object.
Prepared by:
Ime Murillo, Associate Planner
EXHIBITS
Submitted by:
David Lepo, vanning Director
1. Comment Letter from Lennie DeCaro
2. Comment Letter from Department of Toxic Substances Control
3. Caltrans Letter— no comments
Exhibit 1
Lennie DeCaro Letter
Comment Letter
Phone: (949) 433 -4827
Lennie DeCaro
Owner: 5406 & 5408 Neptune
Newport Beach, CA 92663
March 13, 2008
Via email (BNiehols@city.newport- beach.ca.us)
(949) 644 -3309
Original mailed to:
City of Newport Beach
Attn: Brandon Nichols
3300 Newport Blvd.
Newport Beach, Ca 92663
Email: justice4lAcox.net
RE: 5515 River Ave. Mitigated Negative Declaration (Seashore Village, LLC)
Dear Mr. Nichols, planning department, & planning commissioners,
Lennie DeCaro, (DeCaro), in opposition to this project provides the following comments on the
mitigated negative declaration (MND) for the 5515 River project, (Seashore Village, LLC). The
opposition considers this project to have numerous significant adverse environmental impacts on the
applicant, surrounding area, and city of Newport Beach. The project will adversely impact residents
public access to the beach, negatively effecting environmental justice with displacement of low income
tenants, project will increase traffic on Neptune Ave. through the expansion and density of project, it
will negatively impact privacy, sunlight, increase noise, reduce on- street parking, and is contrary to the
goals of Newport Beach general plan. Project will heavily impact nearby residents during the
construction phase of the project in terms of air quality, noise, traffic, and negative fiscal impacts will
fall on the residents, as it will be nearly impossible to rent property to anyone that would have to put up
with at least two years of construction. There is no mention of any mitigation to property owners for
loss of rents, there is no mention as to a performance bond to the city to ensure that work would be
completed within their "goal" timeframe. Currently, "large" builders are facing having bonds called,
inability to pay subcontractors and are having projects stopped in midstream. This is a likely scenario
with this ill thought out project and the residents will ultimately pay the price.
This project would also lead to a diminution of property values, negatively impact homeowners
whose patios and frontage are on Neptune Avenue, as project seeks to turn this street into an alley. The
aesthetics of the area will be negatively affected, specifically injured are the immediate surrounding
neighbors. There is also an invalid assumption of "less traffic' based on formula using "housing type"
instead of "room count'. This incorrect assumption allowed exclusion of traffic study based on less than
300 trips per day. Project is inconsistent with stated goals of the cities, inconsistent with character of
neighborhood, study has not been presented to prove that added residents would not negatively impact
services including police, school, and library. There is an incomplete water plan that was submitted,
invalid income survey done by sellers own management company, (recently hired within the past year),
this study lacks impartiality and is doubtfully certified, but unable to review as it was not included in
this MND. There is further potential project bias from involvement with applicant architect on General
Plan/LCP implementation committee, which was intended to primarily include public input. This
committee, addressed some of the very issues challenged in this MND, and was to involve the public,
utilizing architects only as a subcommittee. Instead, this committee changed and became contrary to the
original stated intended purpose and city council resolution and included numerous architects (or related
fields); absent are detailed minutes and public input. Further, this project is contrary to Coastal
Commission goals of public access to the beach. There is inadequate study of the alternatives to this
project, which were suggested by DeCaro in the spirit of compromise. These suggestions by DeCaro
would solve the majority of the negative impacts.
Noticing was also inadequate as documents were not released online until February 28, 2008
and further, none of the 10 exhibits that are listed in the Planning Commission Agenda were attached or
available online as of 3- 16 -08. 30 Days from 2 -20 -08 would also have deadline incorrect for review
period, this would conclude on 3- 21 -08.
DeCaro asserts an environmental impact report (EIR) must be prepared, circulated and ultimately
certified, instead of the proposed MND, because there is substantial adequate evidence to support a fair
argument that the project may, and in fact will have significant adverse environmental impacts to traffic,
land use, noise, aesthetics, air quality, and safety amongst the other aforementioned issues. CEQA
requires only one issue to support a fair argument to demand an EIR; this project contains numerous
factual arguments that support a demand for an EIR.
Further, the failure of the applicant to indemnify the city for CEQA challenges to this project,
will leave the city in the position of having to absorb costs for legal challenges to the MND that may
result in substantial damages awarded to a successful challenge to the MND. The city should uphold it's
fiduciary responsibilities to the citizens and city and not grant the discretionary approvals for said
project to the applicant and demand an EIR for any subsequent project revisions. This would be the
most appropriate action that would responsibly act in a manner that is protective of the residents and city
from cost of potential litigation in a challenge to the MND.
DeCaro further asserts the MND does not adequately analyze the impacts and fails to clearly
describe the numerous impacts the project will create.
AN EIR IS REQUIRED
I request this project complete an Environmental Impact Report as the mitigated negative
declaration has not addressed the numerous issues that were raised to staff prior to release of the MND,
nor do they adequately address the issues that have been raised in the following objections to the MND.
There is no doubt that a fair argument can be made that numerous potential significant effects remain
that have not been addressed nor disclosed in the mitigated negative declaration.
The CEQA guidelines equate fair argument and substantial evidence as one in the same.
Substantial evidence consists of facts, reasonable assumptions predicated upon facts and expert
opinion supported by facts. The MND's analysis of impacts is legally inadequate, as it fails to
clearly describe the projects impacts, and offers no mitigation for the unstated impacts.
CEQA requires preparation of an EIR whenever a project may have a significant adverse
impact on the environment. (Pub. Resources Code 21151.) "If there is substantial evidence of a
significant environmental impact, evidence to the contrary does not dispense with the need for an
EIR when it can still be "fairly argued" that the project may have a significant impact." (Friends
of "B" Street v. City of Hayward (1980) 106Cal.App.3d988, 1001.) Therefore, the
appropriateness of an MND is only when, due to the nature of the project or the mitigation
measures that have been accepted by the project proponent before the CEQA review process
begins, there is not a fair argument that there may be adverse impacts.
"Mitigated negative declaration" means a negative declaration prepared for a project
when the initial study has identified potentially significant effects on the environment,
but (1) revisions in the project plans or proposals made by or agreed to by, the applicant
before the proposed negative declaration and initial study are released for public review
would avoid the effects or mitigate the effects to a point where clearly no significant
effect on the environment would occur, and (2) there is no substantial evidence in light
of the whole record before the public agency that the project, as revised, may have a
significant effect on the environment." Per Public Resources Code section 21064.5
Additionally, "the significance of an activity may vary with the setting. "(CEQA
Guidelines Section 15064 (b).) As an example, the threshold for finding negative impacts to be
"cumulatively significant" can be found, because the nature of this area and the Neptune Avenue
cul -de -sac have been a consistently quiet area and street for decades. The intense amount of
traffic, noise, and air pollution generated on Neptune avenue as a result of this project attempting
to turn Neptune into an alley, and potentially forcing over one hundred cars, (just from the
development), coupled with additional beach traffic that would use this to loop through
neighborhood in search of parking, make this an extremely significant finding. (Kings County
Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 718 -721.) Further the projects
impact on traffic analysis depends upon the existing setting. (City of Orange v. Valenti (1974) 37
Cal.App.3d 240, 249.)
The Projects significant impacts must be adequately addressed, as well as address the
identified mitigation measures that can reduce impacts and describes and compares the impacts
of the potentially feasible alternatives. If the only reason the alternative is not studied is due to a
prospective developer's profit potential, then clearly outside interests are being protected over
long time residents quality of life.
(3.1) AESTHETIC IMPACTS WOULD BE SIGNIFICANT
"Any substantial, negative effect of a project on view and other features of beauty could
constitute a "significant" environmental impact under CEQA." (Quail Botanical Gardens
Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4 h 1597,1604.) According to the
California Court of Appeal, lay opinions that articulate the basis of the opinion can constitute
substantial evidence of a negative aesthetic impact. (Ocean View Estates Homeowners Assoc.,
Inc. v. Montecito Water District (2004) 116 Cal.App.4' 396, 402.) Expert testimony on the
matter is not required because the overall aesthetic impact of a project is a subjective matter for
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which personal observations are sufficient evidence of the impact. (Id.; Oro Fine Gold Mining
Corp. V. County of El Dorado (1990) 225 Cal.App3d872, 882.)
One of the effected properties, 5408 Neptune Avenue, has a direct view of the ocean
from the living room & balcony. This view has a straight line of sight directly to the public
access opening for the beach. View corridor map (exhibit 2 p. 75 from MND) illustrates the
view corridor to my property was substantiated; yet no mitigations or discussions addressed this
issue. The current apartment building legal height is of no consequence as the building is
setback from 5408 Neptune by at least 60'. This large unencumbered parking lot offers the
uninterrupted view and is evidenced in applicant picture l la, where the large setbacks are
obvious.
Our property was purchased nearly 30 years ago based in part on the understanding of
the benefits of living next to the building with the current zoning and setbacks and we paid a
premium for this additional space next to our home. I have objected to applicant(s) and city
regarding the numerous negative impacts, yet the MND doesn't address my ocean view, nor does
MND address any mitigation. Our view is a direct line of sight to the (prox 50') open space on
the sand. However, with rooftop decking, the view would be even greater. It is inarguable that
there is a significant value placed on ocean views, amounting to hundreds of thousands of dollars
in difference between view and non -view properties. If the discretionary approvals for
modifications are approved, I would lose the ocean view in its entirety, suffer an extreme loss in
marketability and enjoyment of property, lose the privacy from new unit proximity and incur
safety, traffic, runoff drainage, and noise issues through the prospect of turning our cul -de -sac
into an alley.
Plans for extension of "the sunset view park" will also have public views impacted that
were not addressed in the MND.
The modification permit (Chapter 20.93 establishes findings required for approval of a
modification permit. To approve the modification the following three findings must be made:
1. "The granting of the application is necessary due to practical difficulties associated
with the property and that strict application of the zoning code results in physical hardships that
are inconsistent with the purpose and intent of the zoning code."
Clearly this doesn't exist, there is no practical difficulty that revising plans couldn't
accommodate. The only physical hardship would be that the project would transfer hardships to
adjoining properties as the result of granting of this modification permit. The project has no
practical difficulty; modification need is created solely by applicant's choice of design, rather
than any innate characteristic of the lot. Adequate space exists for a scaled down version. This is
new construction and there are a number of design alternatives that could provide full utilization
of the lot while maintaining the required setbacks. The height modification can also be realized
by a different design as well. Units are not marginal in size; in fact they are quite large, easy to
scale down.
2. "The requested modification will be compatible with existing development in the
neighborhood"
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This finding cannot be made. Existing neighborhood consists of two story buildings with
majority 24' or less. Proposed project exceeds this considerably. Reducing side yard widths will
create the appearance of a huge mass project that will tower over the existing residences. The
"existing" neighborhood included the current apartment building for nearly forty years and was
to provide for a mix of uses that were planned to include an apartment building, duplexes and
single- family areas. This modification allows for buildings that are too tall, too close to existing
residences and too dense. NOT compatible.
3. "The granting of such an application will not adversely affect the health or safety of
persons residing or working in the neighborhood of the property and will not be detrimental to
the general welfare or improvements in the neighborhood."
This finding cannot be made either. This development is directly adjacent to neighbors
and directly negatively will impact them. This development is in direct view of the public. This
development will obscure views to the beach and its massing will overwhelm the area and take
away the open area that is felt with the existing setbacks of 60' and more for the current
apartment.
Other properties will also be affected by the height of the proposed buildings and the
expansion of the building envelope. MND incorrectly surrounding area residential units
are of similar height (three stories). This is incorrect. The surrounding properties are one and two
stories. 5408 Neptune, directly bordering proposed project is less than 20' ht and typical of
many homes. There are NO three -story units as the surrounding area is zoned for max.
24'.Current listings for this area, available online, all consist of one and two story units, and
aerial photos supporting that the current apartment building at prox 27'is the only building zoned
for 28'and erected in the vicinity and surrounding area units do not exceed 24', (except possibly
from a couple of homes where the architect was jailed for falsifying the heights and Newport
allowed building heights to remain): The aesthetics of this height differential will become
obvious and very negative if the height differential is accentuated due to the granting of the side
yard setback and height modifications.
This side yard modification puts project too close in proximity to the older units,
intensifying the differences in height and style. Planning commission should not allow the
discretionary approval for the setback modifications, most egregious would be to allow
encroachment into the minimum 25' setback. The building proximity from 25' to 3' will
accentuate this differential and will be obvious that it is not in keeping with the existing
neighborhood. We purchased the property in the 1970's due to the large setback from the
apartment building, the quiet, privacy, and view this entailed. The apartment building is
currently approximately 60' to 100' feet from our house and the modification is seeking to
reduce the minimum setback requirement of 25' by 88 %, (a change from required minimum of
25' to an inappropriate 3'). Properties are purchased knowing the existing zoning and setbacks,
so any modification that would be improved would be a significant impact to the rest of the
neighboring community that has abided by the restrictions.
The MND omitted mentioning this Modification permit (25' setback reduced to 3')
information altogether (p 39) under the environmental analysis and therefore, neither mitigation
nor their impacts were addressed. It should have read, "a modification permit is also requested
for a 3 -foot side yard setback where the MFR zone requires approximately 25 feet side yard
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setback based on lot width, (under discretionary approvals pg. 25). This is clearly a significant
impact and will negatively affect all surrounding properties, losing the feel and look of open
space that the reduced footprint the apartment had on the property. The omission of this
modification permit on page 39 is a significant impact that the lack of analysis of which, is
legally inadequate.
Applicant appears to want the best of both types of zoning. They would like to not only
have the building height currently 28' for MFR, but don't want the setback restrictions that
comes with this zoning. More troubling is that they appear to be trying to have it both ways.
They are looking to go even further on both height and setback through the modification
requests. These are discretionary approvals; the city should follow the vision that these
restrictions sought to protect and disallow the modification permits. If these height restriction
modifications are approved it will create a domino effect of other residences requesting the same.
The MND incorrectly asserts that the proposed project would allow for more public
visual open space. There is no question that the density of the project removes visual open
space. The existing apartment unit has a private pool area and an L- shaped building that is
deeply set back from River (north) as well as Neptune and Seashore (east). The setbacks are a
minimum of 60' (possibly 100'). Page 47 in the MND accurately depicts the enormous open
space between the buildings. This picture also illustrates that one can see the ocean between the
buildings. In the 1980's there was no fence blocking the view at all. In fact the street was open
from River direct through to Seashore. Again, this can be proven by the applicant's very own
documents. Please reference page 373 of Appendix D; this is an example of a historical map that
proves the area adjacent to 5408 Neptune was open as a road that was originally used to access
River Road to Seashore. It also proves that Neptune has always been a cul -de -sac.
Again, in the spirit of compromise, I have suggested a win -win for the community that
deserves serious consideration if this project wants to proceed. The opportunity for the city to
create a more pedestrian friendly development with sidewalks, on street parking, public access,
visually more open space, more aesthetically appealing than buildings sandwiched together, and
a better fit for the neighborhood is an opportunity for everyone to have their concerns addressed,
while removing many objections should be seriously considered.
The total square footage for the existing apartment building is only 48,744 square feet
(per title search, or 48,753 p.57 MND). This proposed project will actually increase to 57,906.
This equates to proposed project being roughly 19% larger than the existing apartment building
footprint. This does not take into consideration that current apartment is approximately 27' and
proposed units will be taller by an average of approx. 20 %. There is no way MND can claim
that this project is less dense, will generate less traffic or will be in any way beneficial to our
community if accepted as proposed.
MND states project as gross floor area of 57,906 with a floor area ratio of .78. Again,
these calculations are incorrect. Entire lot area is approx 63,597 square feet (orig. bldg. Permit
p.408 appendix D in MND document), which equates to .91 FAR. Again, the MND is factually
incorrect in its assertion that it would give more open area, when the facts are contrary to this.
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The MND combines both building and parking of existing apartment and is misleading.
The floor area is what should be referenced when discussing the visual open space. This project
will significantly reduce the visual open space area. The current open parking space areas, not
only allow a feeling of open space, they actually have ample parking for tenants and their guests
without the need for the tenants to use the street. This frees the street up to visitors wishing to
use the recreational amenities and park at the west side of this property that taxpayer dollars were
spent to maintain for the public enjoyment. If this development is allowed to go forth as
presented, it will be "giving" this developer the park and courts that belong to the city. The
massing will give the impression that this is a private facility and the lack of parking this
development will create will be the final straw.
3.3 AIR QUALITY IMPACTS WOULD BE SIGNIFICANT
The MND incorrectly asserts that implementation of the project would result in lower
density residential land uses than currently exist on site and emissions from construction and
operation of the project would not exceed the SCAQMD thresholds. MND states emissions
would be a net reduction due to a net reduction in residential units. The MND fails to analyze
the footprint is approximately 19% larger than existing unit and the square footage of building
goes from 48,744 sq ft to a development encompassing 57,906 square feet.
Nor has the MND factored in that the existing apartment building has had a vacancy
factor during this past year of at least 30 %, even if you were to base it on Newport Beach
average vacancy, one could safely assume that at any given time rental units are conservatively
at 10% vacancy rate. Compound this with the fact that the majority of units (40) only have one
tenant, and remaining 14 units are for two adults. Therefore, the number of people residing at
current apartment building (10% vacancy) would be approximately 49 as a maximum number.
24 residences with 12 four bedrooms and 12 three bedroom equates to 84 residents, or 71 % more
impact on the environment. I used bedroom numbers based on their presentation, as MND
drawings are illegible for detail. These additional residents from this project will not only be
using more resources, but will add to the traffic volume, and this added volume would result in
an increase in air pollutants, which is not acknowledged in the MND.
Neptune Avenue is a cul -de -sac and is narrow (30 ") compared to River (60'); it is unable
to handle traffic turning around in this narrow road. This project is suggesting Neptune as the
alley to the new development; however, this street was not designed to accommodate this and
would result in backups of the additional traffic. Further, the original ingress /egress (on River)
for the existing site was removed in order to densify this project by putting in condos where cars
had previously accessed the site.
In 1981, the public accessed Seashore through this area adjacent to 5408 Neptune,
(Appendix D map.373) this route was blocked to through traffic with the addition of a fence,
likely to avoid a prescriptive action by the public, since public had used this access for years.
The MND has not studied the negative impact of trying to turn the established Neptune Avenue
into an alley, and how this would impact traffic. The MND should study the alternative I
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suggested which is to utilize the current parking lot/setback to accommodate the developments
ingress/egress by requiring it be a road. This would put the problem that applicants are creating,
back to a more equitable solution. The project as presented puts the entire negative impacts onto
the neighbors.
MND states 42% of project would be paved, but doesn't analyze type of pavement nor
mitigations. Will alley that accesses resident driveway be comprised of asphalt? These air quality
impacts are not adequately analyzed. Asphalt batch plants emit PM, carbon dioxide, nitrous
oxides, sulfur oxides, carbon monoxide, volatile organic compounds, methane and hazardous air
pollutants. These impacts must be properly studied in the MND and then adequate mitigation
must be included.
MND states there will be short- term generation of air pollutants during construction,
primarily including exhaust from construction, dust from demo, and motor vehicle trips. The
MND claims exemption because SCAQMD has yet to establish regional emissions.
Analysis is inadequate; modeling was for a site at 82 feet from construction. This site is
closer than 82 feet to a number of adjoining residents and these figures are not adequately
studied, nor mitigations offered. In using URBEMIS2007 modeling, inputted assumptions for,
this modeling are not included. MND incorrectly asserts that the model run is included in
Appendix B. Appendix B is listed as "archaeological record search ".
Short-term impacts also negated to mention the release of asbestos and lead paint.
Property has confirmed asbestos and due to age of construction, lead is assumed as well. MND
states: CO2 emissions are likely not to be considered substantial enough to result in a significant
cumulative impact relative to GHG emissions and climate change impacts. This was not studied
adequately, and they are using assumptions instead of studies.
Long term impacts are based on faulty short term impacts and incorrect assumptions of
reduced vehicle trips as MND use ITE 2003, which has substantial variability. Further, because
MND is using the assumption there are no short-term impacts, therefore there are no long -term
impacts are incorrect. There are short-term impacts; therefore long -term impacts need analysis
as well. MND presumes operational emissions would be reduced because the number of units
are reduced. They fail to analyze based on the total square footage of buildings as compared to
the apartment, or room count. There is an obvious connection to an increase in residents and
traffic, based on size of home and rooms. This project would result in an increase not a decrease
in traffic.
Construction LSTs are not based on any grading plan, so the amount of disturbed soil is
an unknown. Further, and once again, MND inadequately studied construction LSTs and
provided the assumptions for the modeling in Appendix A. In reviewing the modeling, it
appears that in order to comply, construction was extended to 18 months and removed trenching
for utilities as well as mass grading. "Phasing" of the project was used as a tool to gain
compliance, however, cumulatively; surrounding residents are exposed to the same amount of
pollutants, only over a longer period of time. Modeling also assumed construction would take
place in the winter with 60- degree weather. Additionally, to lower emissions, model removed the
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trenching for utilities. This would be inaccurate, as each unit will need under - grounding of
utilities, trenching for foundations etc..
Additionally phasing is a poor idea, a likely scenario is that project ends up sitting for
much longer and the MND has no mitigations to guarantee this won't happen.
There are 2 areas where emissions would exceed the LSTs, PM 10 and PM2. Mitigation
measure state they will bring down pollutants to an acceptable level, however, Rule 403
measures need to be called out specifically in the mitigation, and the table is based on incorrect
assumptions.
Included below is excerpt from the Newport Beach draft EIR (5 -22 -2006) from the
Environmental Quality Affairs report, that addresses this URBEMIS modeling, (same model
used in this MND) and the associated problems.
" recommends that "projects generating or attracting vehicular trips, especially
heavy -duty diesel vehicles, perform a mobile source health risk assessment" in
accordance with California Environmental Quality Act ( "CEQA ) Guidelines published
on the CEQA website. The final EIR should include a mobile source health risk
assessment and provide the results of the analysis.
Appendix B contains Air Quality Data based on computer analysis from a
modeling program titled " URBEMIS 2002 for Windows 8.7.0. " Although Pb and PM2.5
have been previously noted as potential health hazards, they are not included in the
modeling. The final EIR should identify how the proposed Project would deal with these
hazards, and identify other possible analysis tools that could be utilized.
In this same Appendix B, the URBEMIS modeling results are potentially
confusing and contradictory. Compare the results from Appendix B, sheet #1 (marked
page: 1, 31812006, 2:36 pm) and sheet #5 (also marked page:], 31212006, 2:3 7 pm). The
titles on these pages are identical regarding on -road motor vehicle emissions
summarized in pounds /day for summer. The final EIR should explain the difference, for
example, in ROG from 2937.541bs 1day to 359.521bs 1day, and state how the City can
assure that the correct numbers are used in subsequent analyses. Also, ROG is not
defined. Is this related to the volatile organic compounds (VOC's) defined on page 4.2 -2
of the DEIR? If so, the final EIR should fully explain. If not, the analysis of VOC's
should be included in the final EIR ?" underscoring added.
3.4 BIOLOGICAL RESOURCES - INADEQUATE STUDY ANALYSIS
MND relies on only a site survey, yet doesn't provide field data sheets, nor even a written
report, signed and certified by Senior Biologist, nor is Phil Brylski listed on pg. 101 as a preparer
with The Planning Center. Data regarding biological resources on the project site should have
been obtained through a literature review that would include data on biological resources in the
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project vicinity, and applicable reference materials, with the objective of assessing and
documenting existing conditions of the onsite biological resources that may not be immediately
obvious with merely a site review. Sensitive biological resources present, or potentially present,
onsite should have first been identified and documented through a literature review using the
following resources: California Department of Fish and Game (CDFG2007), California Natural
Diversity Data Base (CNDDB 2007), and the California Native Plant Society (Tibor 2001 and
CNPSEI 2007).
A biological assessment survey to document existing conditions and to determine
potential impacts to sensitive biological resources based on current site plans should have
included notes of biological resources, such as plant and wildlife species, on field data sheets that
would also notate date, time and conditions notes were taken under. These data sheets are not
included.
The California Department of Fish and Game (CDFG) administers the state Endangered
Species Act. The State of California considers an "endangered" species one whose prospects of
survival and reproduction are in immediate jeopardy, a "threatened" species is one present in
such small numbers throughout its range that it is likely to become an endangered species in the
near future in the absence of special protection or management, and a "rare" species is one
present in such small numbers throughout its range that it may become endangered if its present
environment worsens. "Rare" species applies to California native plants. State threatened and
endangered species are fully protected against take, as defined above. Species of Special
Concern is an informal designation used by CDFG for some declining wildlife species that are
not state candidates. This designation does not provide legal protection, but signifies that these
species are recognized as sensitive by CDFG and no determination of impacts can adequately be
assessed by on hearsay. Because the community is near to wetlands and dunes, further
confirmation from the CDFG is required.
The California Native Plant Society (CNPS) has developed an inventory of California's
sensitive plant species (Tibor 2001). This inventory summarizes information on the distribution,
rarity, and endangerment of California's vascular plants. The inventory is divided into four lists
based on the rarity of the species. In addition, the CNPS provides an inventory of plant
communities that are considered sensitive by the state and federal resource agencies, academic
institutions, and various conservation groups. Determination of the level of sensitivity is based
on the number and size of remaining occurrences as well as recognized threats. Sensitive habitats
are natural communities that support concentrations of sensitive plant or wildlife species, are of
relatively limited distribution, or are of particular value to wildlife (CNDDB 2007).
Sources used for the classification of sensitive resources that should have been notated
and reviewed are as follows: Plants - California Department of Fish and Game (CDFG 2007),
California Natural Diversity Data Base (CNDDB 2007), and California Native Plant Society
(Tibor 2001 and CNPSEI 2007);Habitats - CNDDB (2007), Holland (1986)
Wildlife - CDFG (2007), CNDDB (2007). Sensitive plant communities occur near the vicinity
of the project site. 4.0 of Newport Beach Coastal Resource Protection, 4.1.1 There are
terrestrial, (non - marine) natural communities that are known to occur within the coastal zone in
the city of Newport Beach and its sphere of influence. MND offered inadequate analysis.
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There also appear to be large trees, species and potential nesting of birds not addressed.
MND states trees are classified as "small ", however photographs suggest otherwise. No photos
are included in the MND classifying landscaping. Historical research photos (2004) illustrate
three large palms. Page 41 of Appendix D you can also see the tops of the trees including one of
the palms. MND appears to have purposefully omitted pictures that show the apartment in a
positive light. This is quite contrary to pictures that I have. Further, page 46 shows different
trees behind the parking. This entire area behind the wall is landscaped.
The project may violate the city of Newport's tree ordinance as it fails to identify if the
existing trees are covered by this G -1 -G -3 policy. Newport Beach defines landmark trees based
on size, age, and type. Historical photos of subject site show three extremely large palm trees
that could qualify based on size, age or species. However, the MND has no documentation
presented, except to state two small ornamental pine trees exist on property. This is ambiguous
and clearly inaccurate based on photo from 2004, and there is no study to confirm if this would
be a negative impact to the community to remove trees that have been in the community since
1972.
Mitigation for removal of the trees are uncertain. The MND does not provide any
mitigation for the loss of the mature palm trees. The MND must analyze how trees would be
replaced.
MITIGATIONS ARE IMPROPERLY DEFERRED. The courts have held it is a
violation of CEQA to approve a project based on a negative declaration without first resolving
how adverse impacts will be mitigated. (Sundstrom v. County of Mendocino (1988) 202
Cal.App.3d296.) The courts found that the development and implementation of mitigation
measures after project approval was a violation of CEQA. (Id. At 306 -308; see also Gentry v.
City of Murrieta (1995) 36 Cal.App.4`h 1359, 1396.) Courts have prohibited the deferral of
mitigation because "There cannot be meaningful scrutiny of a mitigated negative declaration
when the mitigation measures are not set forth at the time of the project approval." (Oro Fino
Gold mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872,884.)
There are a number of mitigation measures for potentially significant effects that are
mitigated only by statements that future plans would provide mitigation, without specifying the
mitigation measures or requiring that the plans be submitted prior to project approval. This issue
is throughout the MND. Plans need to be completed and submitted as part of the CEQA review
process, and prior to the approval of any environmental review document. (Pub. Resources Code
Section 21080(c)(2).)
MND states that it will provide more landscape than existing and this will make it more
pleasing than the existing building because landscaping is doubled, but without a detailed plan,
the mere coverage of area doesn't make it more attractive. The project could be removing many
large shrubs or tall trees only to be replacing them with small planters, but that use more area.
The impact would be substantial and negative to have the mature landscaping removed.
The numerous trees surrounding the property, (neighborhood trees) could be considered
"special trees" giving character to the community. Per city code, Special Trees shall be retained,
unless there are overriding problems. Prior to consideration for any removal of a Special Tree(s),
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the General Services Director, or designee, shall prepare a report identifying and implementing
specific treatment to retain the tree(s). If specific treatment is unsuccessful or impractical in
retaining a tree(s) then a full staff report shall be made to the Commission before any further
action considering removal is taken. Prior to any removal of Special Tree(s), the City must
comply with the noticing provisions of the Removal of City Trees section set forth in this Policy,
unless a Special Tree is considered hazardous that necessitates an emergency removal. Any such
removal must be recommended by the General Services Director and the Risk Manager and
approved by the City Manager.
Special Trees may be considered for removal under the provisions of this Section
provided a special report by the General Services Director is provided to the Commission
detailing the necessity of removal and any specific previous treatment of the tree. After receipt of
the application, a Tree Inspection Report shall be prepared by the City's Urban Forester
(Attachment 2) to determine if the tree(s) meets the criteria outlined in the above All Other City
Trees section for consideration for removal. Simultaneously, the Urban Forester shall provide a
notice of the proposed tree removal to the adjacent property owner (if not the applicant), the
private property owners immediately adjacent to the applicant's property, and the appropriate
community association if applicable, (not applicable to the emergency removal of hazardous
trees under Item C nor to trees that meet the criteria of Item E in the preceding All Other City
Trees section).
The Urban Forester shall determine whether in his/her judgment additional specific
treatment can be initiated to retain the tree provided the costs are reasonable. If a tree(s) is to be
removed, the tree(s) will be posted at least 30 days prior to the removal with a sign notifying the
public that they have the right of appeal. The sign shall also note a staff contact. Once a
recommendation is made by the Urban Forester and the Parks and Trees Maintenance
Superintendent to the General Services Director and the General Services Director or designee
concurs, then the applicant, the adjoining owners, private property owners on either side of the
street within 500' in each direction of the tree location and a legally established community
association, if applicable, shall be notified of the decision to remove or retain the tree within 30
days of the proposed removal. A legally established community association is responsible for
notification of all association members pursuant to their established procedure.
The General Services Director, or a designee, shall prepare a staff report for a regularly
scheduled PB &R Commission meeting of all trees recommended for removal, except for those
trees categorized in Paragraph C. (dead, diseased, or dying trees) or Paragraph E (claims and
safety issues) in the preceding section on All Other City Trees. Only an applicant, an
adjoining property owner, or a legally established community association, the City Manager, a
PB &R Commissioner, or a Councilmember may appeal the decision of the General Services
Director not to remove a tree to the Commission. The Commission, in considering any appeal,
shall determine whether the removal meets the criteria outlined in this Policy, as well as any
unique factors which may be pertinent to the removal or retention of tree(s). The decision of the
Commission will be considered final unless called up by at least one Councilmember or the City
Manager.
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The General Services Department will delay any tree removal(s) for at least 14 calendar
days following the date of the Commission decision in order to allow time The General Services
Department will delay any tree removal(s) for at least 14 calendar days following the date of the
Commission decision in order to allow time for a Councilmember or the City Manager to call the
item.
3.5 CULTURAL RESOURCES - INSUFFICIENT STUDY OF POTENTIAL
IMPACTS AND MITIGATIONS
MND misrepresents the importance of findings from Archaeological data. MND states
records search was conducted and no archaeological evidence on or near the site was found. The
MND neglected to state that the prior studies that were done did not include this area; therefore
there were no sites that could be found if they were never studied. Of the areas studied, including
within one - quarter mile, records check found a minimum of 11 archaeological sites within one
mile of project.
MND states sites are not "expected" to extend into project area. However, study further
states that area and surrounding properties were developed without the benefit of an
archaeological investigation and therefore, no data is available to ascertain the general level of
sensitivity for similar resources to be present. The McKenna study concludes, the Newport
Coastal area is generally considered sensitive for prehistoric archaeological resources, and
should be considered moderately sensitive for both historic and prehistoric archaeological
resources.
MND admits only a limited archaeological records search was conducted by McKenna et
al. However, the findings are significant. It continues to state area is moderately sensitive for
historic archaeological resources regarding the historic railroad alignment. MND has not been
surveyed for cultural resources and potential for subsurface evidence remains. Mitigations must
include defined archaeological monitoring program.
Archival research has indicated it is sensitive for the presence of prehistoric period
archaeological resources within the project area. Surface survey is an inadequate method for defining
and evaluating these resources, and even that wasn't performed. Mitigations for this potential impact
would be to implement a program of subsurface testing, utilizing traditional or remote sensing
methods, designed and implemented by a Registered Professional Archaeologist. Testing would
determine the nature and extent of archaeological deposits. if deposits were located, they would be
evaluated according to the eligibility criteria of the California Register of Historical Resources. If
eligible for listing on the California Register of Historical Resources, measures to mitigate the effects
of the project on archaeological resources would be designed and implemented. Avoidance is the
preferred method of mitigation. If, however, avoidance is not feasible, alternative methods may be
developed. If alternative mitigation includes data collection excavations, these must be conducted
according to CEQA Guidelines Section 15126.4.
Per notice from the Native American Heritage Commission dated March 5, 2008 and
received Mar 10, 2008 (available at city 3- 17 -08), they recommended that a records search of
recorded sites be done (CHRIS) and that the record search would determine: if a survey is required to
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determine whether previously unrecorded cultural resources are present. Study consultant performed
search but did not state whether a survey would be required.
The NAHC also recommends that project applicant contact the Native American Heritage
commission for a Sacred Lands file search of the project. MND study shows no evidence of
contact or results of this recommendation.
I contacted the Native American Heritage Commission and confirmed that the project site
is in close proximity to previously discovered prehistoric burial sites and is believed to hold
numerous Native American cultural resources. They suggest early consultation with Native
American tribes in the area as the best way to avoid unanticipated discoveries once a project is
underway. They also state that lack of surface evidence of archeological resources does not
preclude the existence of archeological resources. Lead agencies should consider avoidance, as
defined in Section 15370 of the California Environmental Quality Act (CEQA) when significant
cultural resources could be affected by a project. (3 -19 -08 Dave Singleton)
The existing paved area currently in the setback of 60', if used as the driveway, as it
presently is used, could help to mitigate the impacts by avoiding the excavation for foundation
footings that will be required in order to support the three story condos.
3.6 GEOLOGY AND SOILS - INSUFFICIENT STUDY OF POTENTIAL IMPACTS AND
MITIGATIONS
MND states EGA consultants prepared an investigation included in Appendix B. This
mislabeling of where to find the documents is confusing. Appendix B addresses archaeological
Records Search. Geotechnical Investigation is found in Appendix C. This document also has
been marked with purple highlighter. It is unclear if this is to emphasize or to delete.
As stated in McQueen v. Board of Directors of the Mid - Peninsula Regional Open Space
District (202 Cal.App.3d 1136, 1143; 249 Cal.Rptr. 439), "An accurate project description is
necessary for an intelligent evaluation of potential environmental effects of a proposed activity ".
A vague or ambiguous project description will render all further analyses and determinations
ineffectual. It is critical that the project description be as clear and complete as possible so that
the issuing agency and other responsible agencies may make informed decisions regarding a
proposed project.
While an MND provides a general description of the project, key elements are either
missing or yet to be decided. For example, there is no indication as to how much grading will
occur. This is a key factor in addressing other impacts including, but not limited to, traffic on
haul routes, noise, vibration, and air pollutant emissions. Vibration will occur to the land
immediately adjacent to the property during construction. Mitigation measures that could be used
include: using augers and providing buffer zones between residences and the use of vibratory
equipment. Mitigation could also include alternative ways of compaction within these buffer
zones that does not create excessive vibration.
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EGA completed a preliminary investigation. They requested grading and foundation plan
be reviewed and approved prior to construction. There is no mention of the appendix C in their
contract or study and may not be site specific.
There is also an issue for inadequate drainage runoff could impact surrounding properties
as water table is found at 6'-8" below grade. There is no grading/specific drainage plan to
determine depth and disturbance of soil. Soil records also show water table at 1' below surface
on records check for area soils.
3.7 HAZARDOUS MATERIALS
Study found 17 of 44 samples testing positive for asbestos. No lead based paint was
tested for. 1972 was during time when lead was commonly found in paint. Study stated that
prior to demolition, it may require a lead based paint survey to be performed. Again, MND is
deferring possible mitigations, because they have not done a conclusive study.
New development could "uncover previously undiscovered soil contamination as well as
result in the release of potential contaminants that may be present in building materials (e.g.
mold, lead, etc.). This could result in a significant impact. Lead was not tested for, and the
mitigation is therefore deferred, mold and other toxics were not addressed.
Mitigations should include detailed means of enforcement and the agencies /departments
of enforcement of the City's proposed policies should define the timelines and response times for
enforcement of each regulation and policy. Most importantly, all impacts — whether potential or
definite — should be analyzed in light of the response, clean up, and remediation times attendant
to the regulations /policies and enforcement cited by the City as the factors that render all impacts
less than significant.
3.8 HYDROLOGY/ WATER QUALITY IMPACTS WOULD BE SIGNIFICANT
The plan as submitted appears as an incomplete boilerplate report. Plan describes that by
filtering directly into the ground, this avoids the need for regular maintenance, however
acknowledges that drains would require general property maintenance. The long -term operation
and maintenance requirements for the Treatment Control BMPs are not defined adequately as
they state that there will be no common maintenance control, that instead, individual investors
will be caring for their individual areas. It doesn't identify the entity that will be responsible for
long -term operation and maintenance of the Treatment Control BMPS, and does not describe the
mechanism for funding the long -term operation and maintenance of the Treatment Control
BMPs.
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Section VI is entirely missing, as well as language either omitted or accentuated by use of
colored marker. Page 10 is blank, Page 11 checks box for common area landscape management
as both "included" and "N /A ". States "N /A" regarding a spill contingency plan based on "Small
SFD development" (sic).
Plan is inadequate as it states common area litter control is N/A as "common areas
minimal and maintained by individual home owners ". There is guest parking, alley way and
paved walkways that are private and shared by the development. They identify no one being in
charge to clean or maintain these areas, nor do they state who will be responsible for street
sweeping of parking lots or maintenance of broken irrigation systems that would be used for the
trees they have depicted in artist rendering of proposed development. These trees will require
pesticides, fertilization and watering, far greater than zeroscape plantings. The application is
inadequate in that it does not state who will provide common area catch basin inspection. It has
marked both included and "N /A" under Uniform fire code implementation. Plan should also
consider sand filtration prior to release of treated water into storm drain if individual percolation
would be inadequate during heavy rains, considering the high water table in Newport Beach.
Plan does not address actions for the construction phase that should include how
demolition debris is disposed of or stored, covered, transported and does not include grading and
drainage plans to prevent flooding of other properties. Design objectives that need to be
addressed would include: All surface runoff and subsurface drainage being directed to the
nearest acceptable drainage facility, via sump pumps if necessary, as determined by the Building
Official. Drains cannot discharge onto neighboring properties, all roof drains shall be required to
connect into a tight -line drainage pipe or concrete swales that drain to the nearest acceptable
drainage facility. Water runoff needs to address landscape plans that would utilize only native,
drought- tolerant landscape materials.
Plans appear to show drain trench in front of 5408 Neptune Avenue, instead of on their
property, transferring maintenance responsibilities to the city.
Drainage appears to be designed to go directly into the ground but not called out in
sufficient detail as to location, size, etc. Pollutant concerns should be addressed due to the water
table at approx. 5' below surface, possibly at 1', and soil is class D, subject to saturation, poor
drainage, etc.
New project will exacerbate water use and runoff, thereby increasing pollution. Current
apartment parking doesn't have access to wash cars at the premises. Existing landscaping is
well established and appears to consist primarily of zero -scape plantings. Project would increase
water usage and subsequent pollution due to increased watering of planted areas and fertilizing,
numerous residents washing their cars in their driveways, and numerous residents hosing off
prior to entering the condos. Much of this water would be on impervious surfaces, increasing
pollution in the runoff.
There is no plan for a common maintenance district to control landscape areas, so
possibilities of broken sprinkler heads are much more likely to go unattended to. It is also much
more likely that each individual unit will supply hoses to shower off prior to coming into their
new homes, causing a continual runoff of water. The MND claim that the new project will result
in less surface runoff are incorrect as there will be an increase in water usage. Increases will be
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primarily in the impervious areas due to hosing off and washing of cars. There is also a real
potential of flooding neighbors if grading is toward surrounding residences. This is in an area
that has flooded significantly. If runoff is put back into the ground, relying on a filtering system,
this could over saturate the grounds and potentially impact surrounding properties as well.
There is also no discussion of the Clean Water Act that would limit the amount of runoff
or limit the percentage of increase a project generates on the amount of runoff.
3.9 LAND USE /PHYSICALLY DIVIDE AN ESTABLISHED COMMUNITY
The introduction of such a dense massing of homes may create a distinct community
whereby rehab facilities could proliferate. The potential is already rumored and there is nothing
that the city could do because as individually owned condos, each residential unit could house 6
people and be within the law. My research uncovered that one of the primary rehab house
owners is listed as a tenant in the existing building. The directories search in the MND would
have shown this but they only show directories up to 2002. It is a reasonable conclusion one
could draw, that someone who owns several rehab homes in Newport Beach, yet decides to
become a tenant, may possibly be part of this investor group. There is evidence to suggest that
this exact type of thing is happening in other cities at this moment. There are areas currently in
California that have been redeveloped and taken over by rehab facilities. This potential outcome
may be in the future for West Newport.
Densification of this site and the lack of parking spaces to accommodate the additional
owners will physically divide the community. Residents and visitors will no longer be able to
find parking on the street to use the park. Further, the dense development will give the
appearance that the park is part of "their own private community ". The MND fails to address that
the number of cars are directly related to the number of bedrooms. There is only one area in the
MND that describes the fact that the current site has only eight (8) studios, (32) thirty -two one-
bedrooms, and only fourteen (14) two bedroom units. Nowhere in the entire MND do they
address the amount of parking spaces that the apartment currently has. It appears this is not
addressed because it would accentuate the difference between the abundance of parking
currently, compared to what it will become if this area is allowed to become over developed.
The issue that needs to be addressed is that the current parking accommodates current
residents with parking to spare. Proposed parking with increased residents will not provide
adequate parking. It may be technically within guidelines, but this is a public resource and every
reasonable attempt to provide adequate parking must be demanded. I believe current site has
more parking spaces than proposed site and current site has fewer residents. MND doesn't state
apartment number of existing spaces and analysis doesn't cover this aspect. MND states project
will only have 63 total spaces. New development has minimum of 83 bedrooms compared to
existing total of 68 bedrooms.
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MND incorrectly describes the floor area Ratio for said project as .78 FAR. It is
miscalculated, the proposed project is 57,906 square feet with the lot size 63,597, and the actual
FAR is .91. Lot size is also incorrectly stated in parts of the MND as 1.49 (prop. description
3.0), it is actually 1.46 and MND consultant/McKenna documents stated this correctly in their
study (Exhibit B). However, where the description should be absolutely correct, the MND is
inaccurate. MND also incorrectly stated on the same page, under the property description of
existing apartment building square footage, wherein it inflated the square footage to 64,885. The
actual square footage of existing building, confirmed by original building permit and county
recorder is 48,744 with a floor area ratio of .76.
MND also appears to be trying to have apartment building appear it the worst light
possible. MND, again under property description (3.2 of 466 page environmental assessment
report) states: estimated % of property covered by buildings and/or pavement at 97 %. There is no
reason to combine the two except to imply that the existing structure is massive and envelopes
nearly the entire property. At the beach parking equates to a better standard of living. This was
one of the reasons that the apartment building was such a good neighbor. MND appears to
continually ignore major negative impacts, or spins descriptions to imply something other than
the real facts suggest. The building mass of existing apartment is considerably less. (.76FAR to
proposed .91FAR ).
Another interesting MND omission that was just revealed (available 3- 17 -08) is on page
75 of 128, entitled "Exhibit 2 project plans ". Apparently someone did take notice of my
complaints for the past two years on this project and illustrated that 5408 Neptune does in fact
have an ocean view and they were aware of it. However, this map that shows the view corridor is
not addressed, no mitigation, no discussion, period. The PR team for the past two years has
ignored any attempt to compromise or address neighbors concerns. There was never any attempt
to mitigate the many issues when there has been two years during this process where applicant
could have changed the siting and reduced the density.
The MND should consider the option of purchasing the site for the city to extend the
existing park for the residents of West Newport. At least one council member has stated that
increasing park space was a goal, as well as sidewalks. Certainly, allowing anything close to the
densification this project is asking for is contrary to the city's best interests. Photos already show
how tall the apartment looks in contrast to the other homes, but because of the generous setbacks
of over 60', it is much less obvious and obtrusive. There isn't the stark contrast that the new
development will have. However, if one puts this massive grouping of condos together, the
height differential will be obvious.
5408 Neptune, which is on a double lot, is less than 20' in height and will be dwarfed by
a bldg nearly double its height. The Seashore building also appears to be approximately the
same height as 5408 and will also suffer the same disproportionate look. This project will result
in a complete lack of privacy, shadows will be cast over the patios and aesthetics will be
compromised in this neighborhood. Newport should not be supporting 3 story homes in West
Newport; these larger homes with more bedrooms will just create more of the traffic that makes
the quality of life at the beach decline.
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Documents on the Agenda and part of the MND were not released until March 17, 2008.
Documents /plans for project are illegible as far as detail determining dimensions on floor plans.
However it appears one model could easily convert to add an additional bedroom. There are no
conditions to limit the number of bedrooms. The number of rooms does in fact have a definite
impact on quality of life and densification of this area and needs analysis.
I have been told the apartment building was at one time 30 -40% vacant, even assuming a
10% vacancy rate; you have very few occupants that live there based on the preponderance of
one - bedroom units. Apartment area is extremely quiet and they have always had ample parking
to accommodate all the tenants and their guests within the confines of their site. This has
allowed the public and neighbors to enjoy the park and the public beach. The MND omits
references to the number of existing parking spaces, therefore inadequate analysis is derived.
MND is stating there will be less impacts based on a formula for daily trips, that (ITE)
admits is extremely variable. A study should compare the likely number of residents driving,
based on number of bedrooms. The study also needs to address the demographics of this area of
Newport Beach. Primarily this area will draw more teenagers or adults, based on the popularity
of this area in that age group. A direct correlation exists between number of bedrooms, number
of tenants and number of cars.
It has also been rumored that there is already a rehab unit(s) in the apartment. If this
were true, it appears contrary to the recorded message that states in order to qualify for a one-
bedroom apt., you must make $66,200 per year and no co- signers are accepted. If it is not true,
then one must wonder why a rehab owner is listed as a tenant. It is also likely that in order for
investors to recoup their investment that this area will become primarily weekly summer rentals.
There are potential severe impacts that will further divide this community if this area
becomes a primarily a rehab area. The MND offers no mitigations to protect the community.
The same potential exists for this proposed development. Further, there appears to be a
need for CC &R's and a homeowner association to manage and control this area; MND suggests
none. Further, MND basically states there will be no one in charge of maintaining common
areas, that the individual will be responsible for their own area. This will clearly create
significant impacts that have not been addressed adequately.
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The following is an article that appeared in the Boston Banner on 12/13/2007.
htip: / /www.bgystatebanner.com/issues /2007/ 12/ 13 /news /lor-a11213071 l .htm
`Sober houses' under legal review by city
By Kenneth J. Cooper
The Roxbury development that has become Safe Haven Sober Houses started quietly
enough a decade ago when a one -man real estate company based in Hull bought an
undeveloped parcel on the eastern foot of Fort Hill.
That was about the last quiet moment. The ongoing saga has seen the project shift from
single-family townhouses for sale to multiple- occupancy bedrooms for weekly rent sober
houses.
Some neighbors and their elected representatives have criticized the development — in
both its forms — as too dense. The original plan was to erect 22 modular townhouses on
a little more than an acre and a hal(
The courts have been kept busy with lawsuits, appeals and a criminal prosecution that
the city is now pursuing against Safe Haven's operators on charges of converting
garages and basements into bedrooms without building permits. The permits the
developers did have were issued in 2003 on a unanimous order from the State Building
Code Appeals Board after the Boston Redevelopment Authority sat on the application for
more than four years.
More than 100 tenants recovering from substance abuse live in I1 or 12 townhouses on
Washington, Juniper and Guild streets, Safe Haven states in a recent court filing.
"The development went up as a condo development, not a sober house. " said City
Councilor Chuck Turner when asked to distill his concerns about Safe Haven. "Another
concern is the quality of services."
Turner, state Sen. Dianne 91ilkerson and state Rep. Gloria Fox, in separate interviews,
recited a litany of concerns: fatal overdoses on site, residents' purchases at a liquor store
a block away, serious sex offenders among the tenants and, as Wilkerson puts it, "such a
high concentration" of recovering substance abusers.
Unlike residential treatment programs, sober houses by definition provide only housing
— not services to help tenants move beyond their addiction. The staff is supposed to
collect rents, assure safety and enforce rules, but is not charged with monitoring
individual behavior. Support and peer pressure from other former addicts is supposed to
keep residents on track
Because they do not provide treatment, sober houses are not licensed or regulated by any
level ofgovernment. They enjoy the protection of state and federal anti - discrimination
laws, which define recovering substance abusers as disabled.
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Some sober houses in other states, reacting to bad publicity or proposed regulation, have
banded together to impose quality standards on themselves. California has two such
groups: the Sober Living Netwo rk. based in Santa Monica, and the statewide California
Association of Addiction Recovery Resources (CAARR) in Sacramento.
The Banner asked the directors of both organizations, and Douglas Polcin, a national
expert on sober houses, about the concerns cited about Safe Haven. Though they
disagreed on some points, all three characterized most of those concerns as worrisome
and inconsistent with a well - managed sober house.
Overdoses
Sgt. Bruce Smith, a community services officer with the Boston Police Department's Area
B station, said at least three fatal overdoses have occurred at Safe Haven.
Told at least three fatal overdoses have occurred at Safe Haven, which opened last year,
Polcin groaned and muttered: "No, no. "
Ken Schonlau, director of the Sober Living Network. said, "it happens, " but could recall
only one fatal overdose on the premises of its 320 member houses. (Underscore added).
The same potential exists for this proposed development. Further, there appears to be a
need for CC &R's and a homeowner association to manage and control this area; MN suggests
none. Further, MND basically states there will be no one in charge of maintaining common
areas, that the individual will be responsible for their own area. This will clearly create
significant impacts that have not been addressed adequately.
1.2.1 EXISTING LAND USE /DESCRIPTION INADEQUATE.
Defines current access via two driveways on River, but states access to and from "Seashore Street and
Neptune Avenue is blocked by a wooden fence ", implying "access" to Neptune Avenue. Fact: There has
never been any access from subject site to or through Neptune Avenue.
The significance is that this project proposal is attempting to turn Neptune Avenue from a cul -de -sac
into an alley. using Neptune as the primary access to all of its units. Meanwhile, applicant is requesting
to use one of the two existing driveways on River as their own private driveway for the sole benefit of
only one of their proposed condos.
This proposal to use one of the two existing River Avenue driveways for the benefit of just one of the
proposed single - family condo units is unfair to existing homeowners. Applicant is attempting to
effectively "take" from the cities existing residents that have purchased property on Neptune, requiring
us to give our street over to the developers to further accommodate their economic gains at our
economic loss. There is no valid reason they cannot use the existing driveway with current
ingress /egress. This is purely to maximize their profits at the existing taxpayers expense. There are no
physical constraints that would make this infeasible. It is not the role of the city to provide for the most
profitable investment opportunity for investors. The role of the city is to protect and enforce existing
code and to maintain the community vision and standards through fair application of code.
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While the apartment building originally had open access to Seashore Drive from an opening to the street
from the apartment parking area, Neptune Avenue never was accessible. The apartment owner put up a
fence years ago to discourage the public from walking through the complex to access the beach and to
stop public from using this access road and parking in their guest parking spots.
Neptune however, has never been open for through - traffic or pedestrian access to the apartment bldg..
Neptune has always had a permanent blockade erected by the city, as well as postings of "no parking"
signs. Neptune has always had terminus at 5406 Neptune Ave. Seashore on the other hand was used at
one time to access the beach and verified through maps found in the MND, mentioned previously.
Mitigations that should have been studied and presented are absent. An obvious mitigation would be to
reduce the project density, while maintaining a portion of the open space of the current footprint.
Utilizing the current driveway on River Avenue and continuing this directly through to Seashore Avenue
effectively eliminates the majority of objections that residents have and the city should have.
The city encourages use of sidewalks and public parking. Coastal commission encourages public
access. Neptune residents do not want their cul -de -sac turned into an alley. I have numerous issues with
loss of ocean view, privacy, safety, traffic, noise, etc. If this area adjacent to my home had a standard
30'road put in, this would solve nearly all of the issues. I offered this as a compromise, as I would still
be giving up privacy and safety with the added adjacent traffic, but discussed this with the applicant and
was told they can't afford financially to give up any properties.
Absent a compromise, I informed them this would likely result in litigation, and this didn't concern the
applicant. Based on this, I would request information as to if the applicant has or will sign a letter that
would indemnify the city from potential CEQA lawsuit.
This mitigation I have suggested is a compromise that would not only solve many issues, it would
actually benefit the look of the development as a defined community. Placing this huge block of taller
condos crammed next to older duplexes does not fit in with the character of the community. However,
an appropriate approach is found in the adjacent Lido Sands community. This community serves as an
excellent example of a well -done community of single - family homes, that are decidedly different and
defined it its own small grouping, but in keeping with the community aesthetics.
Setting apart of the new development would be in keeping with the transitional changes one expects
when transitioning to different types or styles of housing. An inclusion of a new street would appeal
aesthetically as it would give the distance needed to accommodate the break in design styles. Our
community and the development would be better served with this approach.
The proposed project could have the opportunity to benefit the surrounding neighborhood and the
developer at the same time, if applicant would agree to compromise. The project needs to be scaled
down and to include the suggested road improvement. This road requirement would utilize the area that
is currently within the required minimum setback. The apartment is currently set back at least 60'. The
required setback to accommodate 30' road with sidewalks could be provided, with the majority of the
road being within the required 25'setback. However, applicants are asking for a modification to this
setback from the current minimum of 25' to reduce it to 3', (min. 88% reduction of setback).
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SAFETY: Public dedication of right of way should be required due to the impact on the area. River
Avenue is 60' geometric and clearly able to handle larger volume of traffic as it is wider and does not
intersect with pass through traffic. Neptune is a 30' geometric that has always had terminus at 5408
Neptune. It is reasonable to assume a serious negative impact would result during any emergency
requiring immediate evacuation, as there is the potential of 100 or more cars from this new development
that would be attempting to access out from the narrower Neptune Avenue.
Neptune Ave. currently has sidewalk and on street parking, further narrowing this road.
Inability to adequately turn vehicles around will prove to be a safety trap during an emergency. Current
driveway access on River Avenue that would extend access as a new street to Seashore is the
appropriate, safe alternative that should have been studied. Homes effected on Neptune currently face
toward the ocean, trash pickup is on River Avenue. Project proposal would have trash trucks traversing
through Neptune Avenue, as it would become the alley for both sides of their development. There
appears to be no area in the MND that shows where units would store all of the trashcans. So many
trash receptacles to accommodate so many large condos could create a health and safety issue with
harboring of rodents and insects. There are no mitigations for assuring property owners will clean this
section of the road.
Neptune is a city street. The city is responsible for street sweeping. The city cannot legally sweep
the private driveways within this development and therefore, the cleanliness of their "alley portion" is
contingent upon them cleaning this themselves. They present the city with allowing trash trucks to enter
upon a private driveway to pick up trash.
There are challenges to the turning an established street effectively into an alley, with
inconsistent geometrics. It appears that by calling it a "driveway" is simply a way to avoid the
requirements of a street. However, the intent for a driveway is to serve one home, not the manner that
they are intending to use this definition. Fairness dictates that this "driveway (x 24) not be allowed. If
the suggested road from River straight to Seashore is put back in, they can call the area behind the units
the alley that it is and grant an easement for trash pick up only.
It is neither the city nor the resident's responsibility to ensure profitability for developers, nor
would it even be logical for this developer to claim that it would not be profitable if he were required to
remove the units to make way for the road improvements. Since the property hasn't even been sold, and
this is for discretionary approval, they have nothing at stake. This is contrary however to the existing
Newport residents that this project will negatively impact. As a property owner for 30 years, I hope the
planning commission takes the concerns of the resident impacts into consideration over the potential
developer concerns for investor profitability.
Positive impacts from inclusion of new road, would be enhanced safety utilizing access for
emergency vehicles using road instead of alley, fire hydrant accessibility, pedestrian safety with
sidewalks allowing for appropriate drainage, defined public walkway and roadway, direct public access
to beach that occurs at 55` Street at Seashore, aesthetically more suitable to neighborhood
Issues regarding applicant attempt to turn Neptune Avenue into an alley include: diminution of
property value, traffic, noise, safety, air quality, inconsistent with vision for the city, and modification
permit, etc. It is an inappropriate demand on existing homeowners to benefit a developer that hasn't
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even purchased the property to date. Orange County fire authority has not addressed the adequacy of
ingress /egress into a private driveway that has overhanging structure, etc. If they intend to use the
existing fire hydrant, this too would be inadequate based on location.
1.2.2 SURROUNDING LAND USE. DESCRIPTION INADEQUATE
Applicant states: "site is surrounded by residential uses, such as "vacation rental units" to the
north, south, and east and a city park to the west ". This would give one the impression this area is
primarily a "weekly rental area". Instead, this is primarily owner occupied or yearly rental units in the
area. Current apartment bldg is the major source of rentals for this area, allowing for affordable housing
to the residents of Newport Beach.
The "city park to the west" is directly adjacent to the existing site. If this overly dense project
proceeds as presented, it will effectively be a taking of city park space, as the appearance and marketing
of property will be to the sole benefit of these new condos. Currently, many residents and visitors have
access to the park because of the apartment building's adequate parking for its own residents, which
allows for plenty of off street parking on River Avenue. Because the apartment building primarily
serves just one tenant per unit, they have always had adequate "on site" parking. The parking lot is
never full and adds to the city's open space through its current footprint.
If applicant is allowed to have this overly -dense project with inconvenient tandem parking to
accommodate numerous additional bedrooms, (which correlates to additional residents), then it is
reasonable that these additional residents will be using River Avenue to park in front of their units. This
will effectively discourage visitor use of the city park because this will create inadequate parking to
service this need.
Further, the public parking lot on Seashore, which is intended for public parking to access the
park and beach will be further burdened by the additional need for parking that the additional residents
would require. Again, with each additional bedroom that increases the number of residences, it also
increases the likelihood of numerous guests as well.
Applicant has presented that they intend to market units for 3.3 million. With this price tag,
(completely unrealistic), the likelihood that investors will need to turn to weekly rentals or sober living
homes is a much more likely scenario. This will further burden the city of Newport Beach with the
demand it will place on parking, as well as the other police and enforcement needs that will be required.
After a marketing/] obbying group canvassed residents concerns, it appeared the presentations of
this plan had been specifically tailored to give "opinion" that the PR team felt would favor existing
residents concerns. I was told this will increase property values and will get rid of "those tenants" in
favor of homeowners. This is not based on fact. I had also been told it would be used primarily for
wealthy seniors using these homes as second homes, when in fact; marketing statistics do not bear this
out, as seniors are not looking for three story buildings with narrow hallways. I won't comment further
on the numerous falsehoods I was told, because they are not in writing. But I will state that any
presentation based on what it can do for the community, needs to be critically evaluated.
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CEQA demands public involvement, yet this "public outreach" by PR lobbying firms, serves to
discourage the intent of CEQA, through attempts to "inform" residents that most likely won't feel it
necessary to read the full documentation presented to the city on the project. If I felt this was a positive
for our community and for the nearby residents, I would be in favor, but as presented, I am adamantly
opposed. I believe this is a potential nightmare in the making. This project is too dense and comes at
the expense of nearby homeowners and tenants, who the city should be looking to protect.
3.11 NOISE IMPACTS WILL HAVE SUBSTANTIAL IMPACTS
MND claim impact would be less than significant because the project- generated noise
during the operations phase of the project would be from project generated traffic (mobile- source
noise) and on -site operations. They state that project would result in net reduction of trips;
therefore, level is reduced to insignificance because it would result in a decrease in traffic noise.
This is incorrect. First, the daily trips are based on highly variable study, secondly, these are not
cars, and these are eighteen - wheelers, trucks, large equipment and power tools. One eighteen
wheeler, (per FHWA) is the equivalent to the noise generated from 19 cars.
Noise impacts will be increased due to homeowners use of gardening equipment, such as
lawn mowers, leaf blowers, additional cars directly adjacent to the front of our building from the
access using Neptune as the projects alley. 5408 Neptune will not only be affected by one side
of street with access to their garages, but both sides of the street will access garages through
Neptune "Alley". Trash trucks will spill their exhaust and the additional noise from 24
additional stops. Currently trash is picked up on only the west side of property.
Current apartment bldg uses no regular gardener, no lawnmowers or leaf blowers. MND
doesn't address restrictions or mitigations for project's resulting increase of additional noise felt
by residents due to project proximity to existing buildings and increase of additional noise
sources, including additional cars, people, television, radios, etc. Project wishes to have a permit
to have 3 feet side yard setbacks. Currently, the existing building primarily has the apartment
over garage space and so there is typically no living area on ground floor. This adds to the
peacefulness of the neighborhood.
Current site has small balconies. Typically very small, and they aren't large enough for
entertaining. Project will have ground floor patios that will encourage much larger gatherings
and more noise. The quality of life for the surrounding neighbors will be impacted. To visualize
the impact, stretch out your arms from side to side; this will be the difference between buildings.
The MND doesn't address that this is not the vision for Nwvport Beach when given an
opportunity to have a more aesthetic development put in instead.
Construction noise would exceed db levels, vibration etc. The excessive noise and
vibration will exceed standards, but an exemption is claimed based on city standards. However,
nearby homeowners will be unable to rent their units for a minimum of two years due to the
construction noise, dirt, vibration, etc. and the MND has not address the financial mitigations to
accommodate existing residents.
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Analysis and mitigations are inadequate. Noise levels are measured at 50 feet; vibrations
have not addressed ways to mitigate the vibrations through different methods of construction,
etc. Note that the range of 70db to 90 db at distances of 50 feet are for one piece of construction
equipment. This area is directly adjacent to residential properties within 50 feet and the receivers
would be at least 70 to 90 DBA, which is in violation of the exterior NAC criteria for residential
properties. MND lists sound levels on PCH from 1971,Society of Automotive Engineers for use
in studies of aircraft flyover noise, uses PCH hwy pavement, traffic levels, roads, and receivers
all pertaining to PCH. It appears this was from another study or the information is unclear as to
its relevance. It appears study was done for the noise for the new units, such as planning for
noise attenuation for new construction, not analysis based on harm to existing residents. CEQA
demands that the documentation be put forth in a language and manner that is understood. What
is apparent is that this noise study offers no mitigations, nor is it adequately studied.
3.12 POPULATION AND HOUSING WILL HAVE SIGNIFICANT IMPACTS
One of the most troubling aspects is that the MND claims to not displace substantial
numbers of existing housing, necessitating the construction of replacement housing elsewhere.
This MND states it will need to replace housing for 6 units based on a survey, yet it states this as
a less than significant impact. The MND had a pro -forma to include what the developer could
afford for "in- lieu" fees. This is inappropriate. The in lieu fees are not enough to replace the
units and are based on limited data that study admits could not verify all information. Further,
the pro -forma is not included, nor were the rent surveys. A firm was hired to study the adequacy
of the pro -forma with out being able to verify the information. The escrow papers would have
been the first most obvious set of documents. This should be required to understand exactly how
much "profit' and who is claiming this now.
The MND looks at this project in terms of profit potential, instead of what is fair and
equitable to the community. It is obvious to the neighborhood that the majority of the tenants
would have been considered lower to moderate income. Yet, since the project was attempted in
2006, it was removed. Laws prohibit evicting tenants within 24 months of application, and it
gives the appearance and it is my opinion that there was an intentional removal of low- income
tenants in an effort to avoid the costs associated with low- income housing compliance laws.
Since this application resurfaced a year after the identical project was withdrawn, the
property owner hired a new property management company, (who did the rent survey that the
low income housing replacement is predicated upon). The apartment owner is also now
requiring property management to enforce a "specific' income requirement of $66,200 and not
allow a co- signer. It is my belief that there were some "tenants" that were making in the six
figures while the survey was being done. One listed tenant owns several rehab homes in Newport
Beach.
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Newport is a special town that deserves protection. The coast and its resources are too
important to squander, just to benefit the financial gain of a group of investors. I believe that
some of this original team are still involved in this limited partnership. This original team made
no effort to mitigate or compromise. The team solution was that they could get it through. Had I
not had my background and not understood the process, I too would have resigned myself to the
inevitable.
As a property owner that has handled rentals for years, it would be extremely difficult to
find tenants that could qualify without a co- signer but had to additionally verify income
requirement of $66,200, yet this is what the apartment building has enacted within the past year.
I have complained to the city to verify this, stating I felt this was an obvious attempt to
circumvent the law to get rid of the lower income tenants. Inclusionary housing is expensive for
developers and it would benefit them if this weren't an issue. I believe prior to the developer
application, majority of low- income tenants have "moved out ".
There has appeared to be a purposeful eviction of low income housing tenants, but
without the original rent studies, this is speculation. I do not accept however, any study wherein
it is conducted by the property manager who works for the owner who is purportedly in escrow
trying to close the deal. Keyser Marston study requested in PRA was never made available to
me.
The project is presented in a light that gives it a misleading depiction through use of
"artist renderings" that are not to scale. MND (p15) architectural renderings won't be able to
look like the pictures. Most buildings benefit substantially from landscaping, and these
renderings look nice because of the 45- degree angle, mature abundance of landscaping, wide
planted walkways, beautiful towering trees with canopies the width and height of the condos.
Then there is the reality. The MND shows the front and rear of the actual individual view (p27);
this is in stark contrast, and more in line with what this dense development would actually look
like.
There appears to be little difference between the two styles, but couple that with exact
same style home side by side with such density and this doesn't appear to be the type of vision
Newport had in mind. Is Newport's vision to put as many homes jammed next to each other and
towering over the existing residences on a lot that should have been maintained as an apartment
building as one of the few areas in Newport to actually accommodate tenants? This development
will not have the large canopied trees as depicted in the "renderings ", because there is no room to
accommodate them. The reality will be 6 feet shared walkway between homes with no apparent
walls between them for privacy. The design and density doesn't make sense.
Newport wanted to have articulated interesting sides to the buildings, but these units are
primarily flat on the entire length of buildings because they are put too closely together, with too
many units for the lot. They don't fit in with the city vision for new development; they don't fit
in with the neighborhood. This area has been undergoing some nice changes with well -done
remodels, but this opportunity to let this development go in will do a disservice to the entire area
and the people that have invested in rebuilding new homes.
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The proposed development is too dense for the property. Feasible alternatives exist
which include siting the homes using setbacks that were originally intended in this zone, and
reducing the size of the development. These are viable alternatives that haven't been studied
because the investors want to make more money. If it isn't feasible, then the investor should use
their contingency as an escape clause. These applicant/investors don't yet own the property; they
don't have the vested interests in protecting the neighborhood that the residences do. The
investors won't be living in these units.
Applicant has already submitted a pro -forma to determine how many millions he would
be satisfied with making. The applicant only has the advantage if the residents don't feel they
have a voice. Having a planning commissioner attend a private hearing and speaking in a manner
that appeared positive was probably not encouraging to some that showed up. The priority for
the planning commission who must review these objections is to protect our coastal resources
over the construction of residential development.
3.13 PUBLIC SERVICES & 3.14 RECREATION
There exists a moderate impact to libraries and schools and a potential major impact on
police services. Without knowing how property will be used, absent CC &R's restricting their
use, and lack of a homeowner association it is deferring any potential mitigation as it isn't
considering the consequences that land use changes may encompass. MND failed to study new
ways development might be used and provided for no mitigations.
West Newport Park effectively would be taken over by this development, most
will assume it is private, city should have entertained idea of purchasing this as city has stated
West Newport is in need of park expansion. There is metered parking directly in front of the
single - family units. It appears there is no block wall. Absent a continuous block wall, it will be
too convenient for residents to park directly on the street in front of their house, when this
property is intended for visitors to the beach/park.
3.15 TRANSPORTATION /TRAFFIC IMPACTS WOULD BE SIGNIFICANT
Incorrectly states project qualifies for an exemption under the City Traffic Phasing
Ordinance. However the definition under exemption (C.) states: "The following projects are
exempt from the provisions of this chapter:
1. Any project that generates no more than three hundred (300) average daily trips. This
exception shall not apply to individual proiects on the same parcel or parcels of Property, such
as changes in land use or increases in floor area, that in any twenty four (24) month Period
cumulatively generate more than three hundred (300) average daily triers "15.40.030 Standards
for Approval -- Findings — Exemptions)
Further, Trip generation was calculated using the Institute of Traffic Engineers
(ITE) Trip Generation Manual (7a' edition 2003). An article by traffic consultants
Nelson/Nygaard opined on the variability of ITE and stated: "Even where there is a strong
correlation between the amount of development and trip generation rates, there is still
considerable variation in the rates observed in different surveys. For the land use type "Single
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Family Detached Housing ", for example, ITE reported rates ranged from a low of 4.31 daily
trips per dwelling unit, to a high of 21.85 dail�tripss. The Trip Generation manual reports that,
This land use included data from a wide variety of units with different sizes, price ranges,
locations and ages. Consequently, there was a wide variation in trips generated within this
category."
APPENDIX / ISSUES FOR CLARIFICATION OR CORRECTION (466 P doe)
I previously described errors regarding (p8 & 13) property description. Existing bldg,
acreage etc.
Hydrogeology states soil is Class D, states (p125) depth to water table is less than one
foot. This differs with other areas in the MND, (p 15) states that geotech investigation
found ground water at depth of six to eight feet below.
Soil listed as hydric (p15) with slow infiltration rates. This is a concern for the proposal
to have water return to the ground instead of filtered and sent into storm drain. Additional
environmentally appropriate mitigations need to be studied further.
(p341) City directories don't include residents from the past six years.
(page 373, (198 1) page372 (1972 revised from 1965) These historical topographic maps
show that the existing site had the road connect from River to Seashore. This is the same
road that should be put back. The public had used this paved access for years before
property owner fenced it off.
PUBLIC ACCESS
MND is not consistent with the Coastal act. The following are pertinent as to the
negative impacts this project will have as it relates to public access. As stated earlier,
public had at one time directly access the beach from River to 550' Street opening. This
is the same opening that 5408 enjoys its view corridor from. The public has been
deprived of access based on property owner fencing in entire property. However, the
pedestrian public would still access occasionally. One could still see a small area of
ocean between the houses on the sand as evidenced in MND picture showing how wide
the parking area is. It encompasses the views of three buildings as seen on page 43
(figure 11 site photographs) in the MND.
The opened area between the houses on Seashore beachfront & 55'h is intended
for public access. The proposed project has not provided for any permanent access to the
public. Project also effectively removes the access to the public to .utilize the park. The
park will appear to belong to the new development and the more convenient access to the
beach will be cut off and force people to all go to the 54`h street opening. Again, this
appears to be an attempt to have this area be private. This area already is afforded
privacy by the lack of the pedestrian sidewalks. People will not walk through an area
that clearly are private home side yards that are only 3' wide.
The city has one opportunity to afford the public access to the beach that was
intended from the 50's. The city should not miss this opportunity to ensure that our beach
access serves all, not only the rich. The following coastal act sections are particularly
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relevant to this property and public access. This road should be dedicated, returned as a
roadway, include sidewalks for access to the public, fire hydrant and large enough area to
turn large vehicles around in the event of a fire or emergency. Mitigation should have
studied this possibility.
The city of Newport Beach has determined that Coastal Act policies are relevant to
Newport Beach.
Section 30210 of the Coastal Act states:
In carrying out the requirement of Section 4 of Article X of the California Constitution,
maximum access, which shall be conspicuously posted, and recreational opportunities
shall be provided for all the people consistent with public safety needs and the need to
protect public rights, rights of private property owners, and natural resource areas from
overuse.
This project does not provide maximum access.
Section 30212 of the Coastal Act states, in relevant part:
(a) Public access from the nearest public roadway to the shoreline and along the
coast shall be provided in new development projects except where:
(2) adequate access exists nearby...
This project would remove existing access and provide for access only to the condo
owner, not the public. The opening to the beach for this area is 55`" st., providing a near
direct access (line of sight) to the beach.
Section 30213 of the Coastal Act states:
Lower cost visitor and recreational facilities shall be protected, encouraged, and, where
feasible, provided. Developments providing public recreational opportunities are
preferred.
This project actually removes recreational facilities effectively because the existing park
and tennis courts will appear as private and parking will be severely impacted with this
development.
Section 30240 (b) of the Coastal Act states:
Development in areas adjacent to environmentally sensitive habitat areas and parks and
recreation areas shall be sited and designed to prevent impacts which would significantly
degrade those areas, and shall be compatible with the continuance of those habitat and
recreation areas.
This project severely effects this provision in the overly dense design that will make it
appear that park is part of the open space for this development.
The City's recently updated certified Land Use Plan (LUP) also contains the following
policies that would apply to the proposed development:
Public Access and Recreation/Shoreline and Bluff Top Access, Policy 3.1.1 -1 states,
Protect, and where feasible, expand and enhance public access to and along the
shoreline and to beaches, coastal waters, tidelands, coastal parks, and trails.
Access road next to property would accomplish this stated policy.
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Policy further states under "shoreline access ", that the city will require all new
development causing or contributing to adverse public access impacts, to provide easements or
dedications in areas where public access is inadequate. All beach access openings serve specific
home street created the vertical access that was created specifically to serve this area. The
public should not be deprived of access to 551h Street opening. One of the main tenets of the
Coastal Act is preservation of coastal access.
City of Newport Beach stated goals include under the Local Coastal Program and Coastal
Land Use Plan: (I objected to staff that the applicant is on this committee, during processing of
his application and should have been removed due to conflict of interest.)
3.1.1 -2 Protect public street ends providing access to the beach
Project removes protection
3.1.1 -7. protect public right of access. Where substantial evidence of prescriptive rights
exists, actively pursue public acquisition or require access easements as a condition of
development.
Project area could pursue prescriptive rights based on history of access through area
adjacent to 5408 Neptune
3.1.1 -8 ...prescriptive rights... parcel must be designed or conditions imposed to avoid
interference with prescriptive rights....
3.1.1- 9..protect expand coastal access...
3.1.1 -12 Protect public access through setback and other property development
regulations of the zoning code that control building placement.
This would directly stop the modification permit. If the committee for which the
applicant is on, has sought to change the above policies in a manner that would be
favorable to this particular development, then the policy revisions should be looked at
again, as the intentions of protecting our coast should not change.
3.1.1 -14 REQUIRE an offer to dedicate (OTD) an easement for vertical access in all
new development projects causing or contributing to adverse public access
impacts... sufficient size to accommodate two way pedestrian passage ... landscaae
buffer ... sited along, the border or side property line of the project site or awayfrom the
existing or proposed development to the MAXIMUM FEASIBLE EXTENT..
Placing vertical easement away from both existing and proposed project is easily
accomplished with a road and sidewalk in side area. This is the fitting solution that
complies with city and coastal acts and removes most of the objections, allowing Neptune
to remain the cul -de -sac, and if buildings are sited properly, maintain my ocean view.
3.1.1 -19 ...develop long -range plan for public trails and walkways
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Policy 3.1.5 -2 PROHIBITnew PRIVATE streets, or the CONVERSION OF PUBLIC
STREETS TO PRIVATE STREETS, WHERE SUCHA CONVERSION WOULD INHIBIT
PUBLIC ACCESS TO .... SHORELINE
This is exactly what the project is intending to do and is contrary to this policy. This
would be converting a private road, (Neptune) to turn into a "private driveway ". This
project seeks to have "the individual driveways" going in the opposite direction to be
called a "driveway" that hooks up into the established city street, Neptune Ave. They
wish to have the "driveway" to be treated as a private road for emergency and city
services. This does not qualify in any manner for conversion without being out of
compliance with said policy.
Conclusion
Other neighbors and tenants have had this project presented in a manner to appeal to their
"perceived" individual likes while consistently implying that nothing can be done to stop this
project. Public outreach conducted by applicant at a non -city facility this month, where a
planning commissioner appeared to favorably answer some questions redirected from applicant,
could lead one to believe nothing can be done, even though this was probably not the intention.
Troubling is that none of my tenants have had any notifications to date at all from applicant.
The intention of applicant appears to utilize the public relations firm to market to the
neighborhood to avoid upset residents writing in to object to projects. We all know this is how
developers operate, it is just smart business and this isn't to fault them, but there is a point where
the process is no longer fair and this is bordering on this precipice. The planning commission
and council are there to protect the city from land use decisions that will affect the quality of life
for its residents forever. This is the type of project that demands an EIR, if not an outright
rejection as presented.
Most PR firms will try to market the development in advance through "coffee chats" and
informal friendly meetings, in order to tailor the project to their perceived specific interests. I
was told, (based on my age I presume) that these units would be primarily second residences for
retired people that would seldom be there. I was also told they would be marketing the units for
3.3 million, again to appeal to the thought of increased property values. Instead, I recognized the
sales pitch. However I was most insulted when a "proponent" tried to state it would be getting
rid of "those" tenants. I informed him "those" tenants had never been a problem, always quiet,
and the fact that tenants are controlled by a manager, you don't have the problems associated
with "rehab facilities" or weekly vacation rentals, which is by far, a much more likely scenario
when investors try to recoup their money for a condo.
It is my belief through my research that this investor group is primarily the same group
from two years ago. I am troubled by the inclusion of the applicant to participate within
committees that could affect the outcome of this project for which I believe he would benefit and
would certainly be in violation of the Brown Act for conflict of interest concerning financial
interests. I spoke to staff and expressed my objections, yet applicant is still on the committee.
Committee was intended to have public input, and not to consist primarily of developer related
members. I had a Public Records Act refused by planning department, after I was told I initially
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could receive the Marston Keyser rent study, as I felt this would prove that tenants were being
evicted or offered incentives to move if they were low income. I felt this study would validate
this. I expressed my concerns, yet this MND has accepted a pro -forma without seeing the escrow
papers, determining how many investors, in which to spread the profit/risk.
I submitted numerous letters to planner addressing detailed concerns, yet none of my
objections were included in the MND. None of my objections were taken into account in
studying my suggestions as alternatives.
I have asked for an extension of time to respond from Newport Beach, the lead agency. I
have been told this will likely be continued, however, I am still required to submit objections to
the MND to protect my interests during this comment period.
In closing, this is the wrong project for Newport. It is too dense, too tall, and too close to
other residences, it doesn't fit in, it is benefiting the developers to the detriment of the existing
citizens, just to name a few concerns! I request this project be denied, or at the very least
demand an EIR.
Regards,
Lennie DeCaro
Owner of adjacent property
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Exhibit 2
DTSC Comment Letter
�lp
ur,N
Linda S. Adams
Secretary for
Environmental Protection
March 19, 2008
Department of Toxic Substances Control
Brandon Nichols
Associate Planner
Maureen F. Gorsen, Director
5796 Corporate Avenue
Cypress, California 90630 RECEIVED BY
PLANNING DEPARTMENT
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92658
MAR 212008
n
Arnold Schwarzenegger
Governor
CITY OF NEWPORT BEACH
NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION
FOR THE SEASHORE VILLAGE PROJECT, NEWPORT BEACH, ORANGE COUNTY
(SCH#2008021075)
Dear Mr. Nichols:
The Department of Toxic Substances Control (DTSC) has received your submitted
Initial Study (IS) and Mitigated Negative Declaration (ND) for the above - mentioned
project. The following project description is stated in your document: "Development
and operation of 12 single - family detached units and 6 duplex units, for a total of 24
units, on a 1.49 -acre site. Access to the project site would be provided by two driveways
on River Avenue and a driveway from Neptune Avenue. The western driveway on River
Avenue would exclusively serve one single - family unit, and all other access would be
provided through River Avenue and Neptune Avenue. The existing 54 -unit apartment
complex would be demolished." DTSC has the following comments; please address if
applicable.
1) The ND should identify the current or historic uses at the project site that may
have resulted in a release of hazardous wastes /substances, and any known or
potentially contaminated sites within the proposed Project area. For all identified
sites, the ND should evaluate whether conditions at the site may pose a threat to
human health or the environment. Following are the databases of some of the
pertinent regulatory agencies:
National Priorities List (NPL): A list maintained by the United States
Environmental Protection Agency (U.S.EPA).
Envirostor. A Database primarily used by the California Department of Toxic
Substances Control, accessible through DTSC's website (see below).
® Printed on Recycled Paper
31
Brandon Nichols
March 19, 2008
Page 2
• Resource Conservation and Recovery Information System (RCRIS): A database
of RCRA facilities that is maintained by U.S. EPA.
• Comprehensive Environmental Response Compensation and Liability
Information System (CERCLIS): A database of CERCLA sites that is maintained
by U.S.EPA.
• Solid Waste Information System (SWIS): A database provided by the California
Integrated Waste Management Board which consists of both open as well as
closed and inactive solid waste disposal facilities and transfer stations.
• Leaking Underground Storage Tanks (LUST) / Spills, Leaks, Investigations and
Cleanups (SLIC): A list that is maintained by Regional Water Quality Control
Boards.
• Local Counties and Cities maintain lists for hazardous substances cleanup sites
and leaking underground storage tanks.
• The United States Army Corps of Engineers, 911 Wilshire Boulevard,
Los Angeles, California, 90017, (213) 452 -3908, maintains a list of Formerly
Used Defense Sites (FUDS).
2) The ND should identify the mechanism to initiate any required investigation
and /or remediation for any site that may be contaminated, and the government
agency to provide appropriate regulatory oversight. If necessary, DTSC would
require an oversight agreement in order to review such documents. Please see
comment No. 14 below for more information.
3) All environmental investigations, sampling and /or remediation for the site should
be conducted under a Workplan approved and overseen by a regulatory agency
that has jurisdiction to oversee hazardous substance cleanup. The findings'of
any investigations, including any Phase I or II Environmental Site Assessment
Investigations should be summarized in the document. All sampling results in
which hazardous substances were found should be clearly summarized in a
table.
4) Proper investigation, sampling and remedial actions overseen by the respective
regulatory agencies, if necessary, should be conducted at the site prior to the
new development or any construction. All closure, certification or remediation
approval reports by these agencies should be included in the ND.
3�
Brandon Nichols
March 19, 2008
Page 3
5) If any property adjacent to the project site is contaminated with hazardous
chemicals, and if the proposed project is within 2,000 feet from a contaminated
site, then the proposed development may fall within the "Border Zone of a
Contaminated Property." Appropriate precautions should be taken prior to
construction if the proposed project is within a Border Zone Property.
6) If buildings or other structures, asphalt or concrete -paved surface areas are
being planned to be demolished, an investigation should be conducted for the
presence of other related hazardous chemicals, lead -based paints or products,
mercury, and asbestos containing materials (AGMs). If other hazardous
chemicals, lead -based paints or products, mercury or ACMs are identified,
proper precautions should be taken during demolition activities. Additionally, the
contaminants should be remediated in compliance with California environmental
regulations and policies.
7) Project construction may require soil excavation or filling in certain areas.
Sampling may be required. If soil is contaminated, it must be properly disposed
and not simply placed in another location onsite. Land Disposal Restrictions
(LDRs) may be applicable to such soils. Also, if the project proposes to import
soil to backfill the areas excavated, sampling should be conducted to ensure that
the imported soil is free of contamination.
8) Human health and the environment of sensitive receptors should be protected
during the construction or demolition activities. If it is found necessary, a study of
the site and a health risk assessment overseen and approved by the appropriate
government agency and a qualified health risk assessor should be conducted to
determine if there are, have been, or will be, any releases of hazardous materials
that may pose a risk to human health or the environment.
9) If it is determined that hazardous wastes are, or will be, generated by the
proposed operations, the wastes must be managed in accordance with the
California Hazardous Waste Control Law (California Health and Safety Code,
Division 20, Chapter 6.5) and the Hazardous Waste Control Regulations
(California Code of Regulations, Title 22, Division 4.5). If it is determined that
hazardous wastes will be generated, the facility should also obtain a United
States Environmental Protection Agency Identification Number by contacting
(800) 618-6942.
Brandon Nichols
March 19, 2008
Page 4
10) Certain hazardous waste treatment processes or hazardous materials, handling,
storage or uses may require authorization from the local Certified Unified
Program Agency (CUPA). Information about the requirement for authorization
can be obtained by contacting your local CUPA.
11) If the project plans include discharging wastewater to a storm drain, you may be
required to obtain an NPDES permit from the overseeing Regional Water Quality
Control Board (RWQCB).
12) If during construction /demolition of the project, the soil and/or groundwater
contamination is suspected, construction /demolition in the area should cease
and appropriate health and safety procedures should be implemented.
13) If the site was used for agricultural, livestock or related activities, onsite soils and
groundwater might contain pesticides, agricultural chemical, organic waste or
other related residue. Proper investigation, and remedial actions, if necessary,
should be conducted under the oversight of and approved by a government
agency at the site prior to construction of the project.
14) EnviroStor is a database primarily used by the California Department of Toxic
Substances Control, and is accessible through DTSC's website. DTSC can
provide guidance for cleanup oversight through an Environmental Oversight
Agreement (EOA) for government agencies, or a Voluntary Cleanup Agreement
(VCA) for private parties. For additional information on the EOA or VCA, please
see www.dtsc .ca.gov /SiteCleanup /Brownfields, or contact Maryam Tasnif-
Abbasi, DTSC's Voluntary Cleanup Coordinator, at (714) 484 -5489.
15) In future CEQA documents please provide the contact person's email address.
Also, if the project title changes, please provide historical project title(s).
qb
Brandon Nichols
March 19, 2008
Page 5
If you have any questions regarding this letter, please contact Tong Qiao, Project
Manager, at taiao &dtsc.ca.gov or by phone at (714) 484 -5470.
Sincerely,
A5��
Greg Holmes
Unit Chief
Southern California Cleanup Operations Branch - Cypress Office
cc: Governor's Office of Planning and Research
State Clearinghouse
P.O. Box 3044
Sacramento, California 95812 -3044
state.cleadnghouse@opr.ca.gov
CEQA Tracking Center
Department of Toxic Substances Control
Office of Environmental Planning and Analysis
1001 1 Street, 22nd Floor, M.S. 22 -2
Sacramento, California 95814
gmoskat @dtsc.ca.gov
CEQA #2080
�1
Exhibit 3
Caltrans Letter
a.-
DEPARTMENT OF TRANSPORTATION
District 12
3337 Michelson Drivq Smte 380
Irvine, CA 92612 -8894
Tel: (949) 724 -2267
Fmc.(949) 7242592
March 13, 2008
Mr. Brandon Nicholas,
City ofNewport Beach
3300 Newport Boulevard
Newport Beach, California 92658
Subject: Sea Shore Village
Dear Mr. Nelson,
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File: IGR/CEQA
SCH#: 2008021075
Log M 2009
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Thank you for the opportunity to review and comment on the Initial Study and Mitigated
Negative Declaration for the Sea Shore Village project. The project proposes to construct 12
single - family detached units and 6 duplex units, on a 1.49 acre- site. The project is located on
5515 River Avenue in the City of Newport Beach. The nearest State route to the project site is
Pacific Coast Highway (PCH)•
Caltrans District 12 is a commenting agency on this project and has no comment at this time
However, in the event of any activity in Caltrans' right -of -way, an encroachment permit will be
required.
Please continue to keep us informed of this project and any future developments, which could
potentially, impact State transportation faatities. If you have any questions or need to contact us,
please do not hesitate to call Maryam Mohwi at (949) 724 -2267.
Sincerely,
-�*Iam J10faul 6r,
Ryan Chamberlain, Branch Chief
Local Developmentlintergovernmehtal Review
C: Terry Roberts, Office of Planning and Research
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