HomeMy WebLinkAboutExhibit 4Exhibit No, 4
List of Violations alleged by Villa Balboa
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LIST OF VIOLATIONS
OF
PLANNED COMMUNITY DEVELOPMENT CRITERIA
(May 26,1992)
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DEVELOPMENT AGREEMENT
(February 14,1994)
The Development Agreement opens with the following statement of purpose:
RECITALS. This Agreement relates to the following:
1.1 Purpose of Agreement. This Agreement is intended to:
(b) "...minimize, to the extent feasible, any environmental impact of Hoag's
proposed expansion."
Unfortunately, as shown herein, there have been numerous failures in minimizing the
environmental impacts of Hoag's expansion and in complying with the dictates of both
the Development Agreement (DA) and the Planned Community Development Criteria
(PCDC). It is the objective of this document to highlight those failures.
DA Citation — (1) Recitals (Page 1)
The Development Agreement also sets forth the following requirement for annual
review:
5.1 City and Hoag Responsibilities. "At least every twelve (12) months during the
Term, the City shall review Hoag's good faith substantial compliance with this
Agreement..."
5.2 Public Hearing. "The Annual Review shall be conducted at a public hearing
noticed in accordance with the provisions of Chapter 15.45 of the Newport Beach
Municipal Code."
5.3 Mitigation Review. "The Annual Review shall include a detailed report of
compliance with the various conditions and mitigation measures... The report shall
include an analysis of the view impacts..."
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The City is required to hold an Annual Review of Hoag's good faith compliance with the
Development Agreement. These Annual Reviews included a specific mandate to
examine the impact on views of building projects on the lower campus. The City is
required to hold the review in the format of a public hearing, with notification sent in
advance to nearby residents. No Annual Review was ever conducted. Among other
things, this oversight prevented the City and the Community from properly assessing
impacts on views of the cogeneration plant before it was built and multiple other facets
of Hoag's expansion.
No Annual Review has been conducted during the entire 14 year period since approval
of the Agreement. Many, if not all, of the controversies that have now arisen (and been
ignored for 14 years) regarding Hoag's request for modification of this agreement
could have been avoided had this mandated procedure been followed
DA Citation — (5) Annual Review (Page 9)
THE FOLLOWING FAILURES ARE INDICATIVE OF THE VIOLATIONS OF
BOTH THE DEVELOPMENT AGREEMENT AND THE PLANNED
COMMUNITY DEVELOPMENT CRITERIA
1. Failure to assess potential impacts and prepare required environmental
document with respect to plumes and noise from the cogeneration plant
The DA states that the City of Newport Beach is "under a continuing obligation to
analyze Hoag's requests for Project Specific Approvals to ensure the environmental
impacts associated with request were fully addressed in the EIR. Subsequent
environmental documentation is required if this analysis reveals environmental impacts
not fully addressed in the program EIR, identifies new impacts, or concludes the specific
request is not consistent with the project described in the EIR. Hoag acknowledges the
right and obligation of the City and the Coastal Commission or its successor agency to
impose additional conditions as the result of subsequent environmental analysis required
by CEQA."
Potential impacts from the cogeneration plant therefore did not cause the proper
supplemental environmental documentation to be prepared with respect to the
condensate, rooftop steam, or exhaust plumes from the cogeneration plant. Also, noise
related to the cogeneration plant cooling towers should have been assessed prior to
approval of the plant.
DA Citation — (3)(3) Program EIR (Page 7)
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2. Failure to prohibit/conceal/screen equipment on roof of cogeneration plant
The PCDC states the following with respect to roofs of buildings on the lower campus:
"Prior to the issuance of building permits, the project sponsor shall submit plans which
illustrate that major mechanical equipment will not be located on the roof of any structure
on the Lower Campus. Rather, such buildings will have clean rooftops. Minor rooftop
equipment necessary for operating purposes will comply with all building height criteria,
and shall be concealed and screened to blend into the building roof using materials
compatible with roofing materials."
The PCDC also states that "all mechanical equipment and trash areas will be screened
from public streets, alleys and adjoining properties."
The roof of the cogeneration plant is not "clean." Instead it contains a wide range of
equipment, including six large exhaust stacks, steam vents, and other related devices. It
can be argued that the exhaust stacks in particular violate the provision banning major
equipment; they are certainly not screened from view. Steam vents are covered by grill
work, but do not "blend into the building roof." Further, both exhaust stacks and steam
vents discharge plumes which rise well above the roof of the building, clearly violating
the intent of the PCDC.
PCDC Citation - (V)(F) Roof Treatment (Page 17)
PCDC Citation - (V)(J) Mechanical and Trash Enclosures (Page 18)
3. Failure to prepare a complete and accurate view impact analysis for
Cogeneration plant
The DA contains a requirement that, prior to receiving a building permit, Hoag must
prepare a view impact analysis of each proposed building. In order to provide an
accurate assessment of the impact of the cogeneration plant on views, any such study
should have included an assessment of the impact of the plant's condensate, steam, and
exhaust gas plumes.
DA Citation — (3)(2)(i) (Page 7)
DA Citation, Exhibit C — Item # 48 (Page 9)
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4. Failure to demonstrate that cogeneration plant would be compliant with
SCAOMD Rule 402 (Public Nuisance)
The DA contains a requirement that, prior to receiving a building permit, Hoag must
submit plans to the City demonstrating compliance with all SCAQMD rules, including
Rule 402 (Public Nuisance), which specifically addresses visible plumes (see below).
There is no evidence among City application materials related to the cogeneration plant
that demonstrates compliance with this requirement.
DA Citation, Exhibit C — Item #82 (Page 13)
5. Failure to develop a Droner air quality analysis related to plumes from the
cogeneration Want
The DA contains a requirement that, prior to receiving a building permit, Hoag must
conduct an air quality analysis prior to each stage of development, and that "appropriate
CEQA" documentation must be prepared if "new emissions, when added to existing
project emissions could result in impacts not previously considered..." Since the visible
plumes from the cogeneration plant were not considered in the EIR 142, an SEIR should
have been generated with relation to the cogeneration plant to evaluate the impact of the
plumes from the cooling towers, exhaust stacks, and rooftop steam vents.
DA Citation, Exhibit C - Item #36 (Page 7)
6. Failure to enforce maximum height mandates - fence behind cogeneration plant
The fence built above and behind the lower campus cogeneration plant clearly violates the height
restrictions of the PCDC.
PCDC Citation - (V)(C)(4) Maximum Building Height (Page 14)
7. Failure to meet requirement to maintain noise levels below 55 dBA at all
property lines.
Noise levels near the loading -dock, and other areas of the upper campus, and at the
cogeneration plant, have consistently failed to meet the requirement that sound levels not
exceed 55 dBA at all property lines.
PCDC Citation - (II)(7) General Notes (Page 2)
8. Failure to follow directives in the DA and PCDC reauirinE noise abatement via
enclosure of the IoadinE dock area.
Noise standards have been continuously violated at the Hoag loading dock area. Both the
DA and PCDC require enclosure ( "enclosure shall be required ") of the loading dock area
if no other noise mitigation measures prove to be effective.
PCDC Citation — (V)(L) Loading Dock (Page 19)
DA Citation, Exhibit C — Item #120 (Page 18)
9. Failure to consistently restrict construction and related work to the mandated
hours of 7am to 6pm during the week, and to 8 am to 6 pm on Saturday.
On numerous occasions, construction and related activities on the lower campus have
occurred well before the morning thresholds cited in the PCDC and DA. Several of these
incidents are documented in writing and/or photographically.
PCDC Citation — (V)(K) Internal Circulation (Page 18)
DA Citation, Exhibit C — Item #112 (Page 17)
10. Failure to implement landscaping plans as promised during a meeting conducted
by Hoag personnel (including landscape architect) and Government Solutions.
Inc.
On March 14, 2007 Hoag personnel (including landscape architect) and representatives of
Government Solutions, Inc. conducted a meeting on the premises of Villa Balboa for the
purpose of updating Villa Balboa residents on Hoag's development plans. While
presenting landscaping plans for the lower campus parking area, Hoag included
architectural renderings showing far more planting areas devoted to trees than have
actually been implemented. The term expressed by the landscape architect for the
quantity of trees to be planted in the parking lot was "a canopy of trees." This has not
occurred.
At that same meeting Hoag showed architect renderings depicting a promised "lattice
framework around the cogeneration plant to be planted with ivy." The audience was told
that Hoag had submitted plans for both the "canopy of trees" and the "cogeneration plant
lattice work" to the California Coastal Commission. A subsequent call to the Long
Beach office of the Coastal Commission revealed that such an application had not been
filed.
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Residents of Villa Balboa relied on Hoag's statements and architectural renderings
with respect to the landscaping issues discussed above, however Hoag has not
followed through on it promises and has ceased communicating with residents on
this issue. This gives the appearance that Hoag was simply attempting to placate
residents to forestall any further organized activities in opposition to Hoag's request
to amend the Development Agreement of February 14,1994.
11. Failure to document to the City prior to construction that cooling tower exhaust
fans would be compliant with 55 dBA noise limitation at all property lines.
The cooling tower exhaust fans exceed the requirement that noise be less than 55 dBA at
all property lines. The DA requires to Hoag demonstrate to the City prior to receiving a
building permit that noise from new mechanical equipment will be in compliance with
the 55 dBA noise restriction.
PCDC Citation - (II)(7) General Notes (Page 2)
DA Citation, Appendix A — Item #41 (Page 8)
12. Failure to adhere to liahtin¢ reeulations (lower campus li¢htina systems) — Child
Care Center and parkine lot north/west of PCH entry to lower campus
Various lighting systems on the lower campus do not comply with language in the PCDC
and DA which require concealment of light sources and minimization of light spillage
and glare to the adjacent residential uses. This includes current lighting on the inner and
outer walls of the Child Care Center. Lighting for the new lower campus parking lot was
clearly in violation of applicable rules until intervention by the City due to complaints
from residents. Prior to installation a report is to be prepared by a lighting engineer
certifying that the lighting system complies with the DA and PCDC. (This issue is
currently being addressed by the Planning Department, including use of off -hour and
photovoltaic cell lighting controls, time clocks and motion detector lighting controls.)
PCDC Citation - (V)(E) Lighting (Page 17)
DA Citation, Exhibit C — Item #44 (Page 8, 9), Item #88 (Pagel 4)
13. Failure to adhere to limits on construction activities
The DA limits the hours of construction and excavation work to 7:00 am to 6:00 pm on
weekdays, and 8:00 am to 6:00 pm on weekends. These rules have been violated on
numerous occasions, many of which have been documented with Hoag.
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2. Failure to dedicate at least 5% of the new lower campus narking lot to planting.
Parking lot landscaping on the lower campus fails to meet the mandates set forth in the
PCDC, requiring that a minimum of 5% of the parking area be landscaped. Further, the
landscaping that has been implemented is significantly over - committed to the entrance
area for the Child Care Center rather than being evenly distributed throughout the entire
lower campus parking area to the northwest of the PCH lower campus entrance.
PCDC Citation - (VIII)(E) Parking Areas (Page 25)
3. Impact of Lower Campus Bluff Excavation and Retaining Wall Construction
The excavation of the lower campus bluff and the construction of the retaining wall have
been associated with signs of settling of Villa Balboa structures. These signs include
cracking, and jamming of doors and windows. These problems are under investigation
by Villa Balboa consultants.
The sidewalk which transverses the linear Sunset View Park has experienced increasing
cracking and loss of structural integrity.
DA Citation — (3)(2)(a)(b) (Page 7)
CONCLUSIONS
The residents of Villa Balboa are deeply distressed by their experiences of the past l'/2
years in attempting to negotiate with Hoag to reach acceptable solutions to the issues
cited above. What first appeared to be a willingness on Hoag's part to meet and work
with representatives of the Villa Balboa Association ultimately became an exercise in
futility as Hoag effectively cut off communication abruptly in September of 2007 and
failed to agree to retrofit the cogeneration plant or to implement specific promises made
to the Association regarding a range of issues such as landscaping and the illegal
cogeneration plant fence.
Unfortunately, what should have been a "win -win" endeavor between Hoag and its
neighbors has turned into a "lose- lose" proposition. Visitors to Sunset View Park as well
as visitors to the City of Newport Beach traveling on Pacific Coast Highway (designated
by the California Coastal Commission as a "scenic highway ") have been misled
throughout the ongoing Hoag expansion.
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DA Citation, Exhibit C - Item #112 (Page 17)
14. Failure to visually screen mechanical equipment and enclosures
Hoag has a long history of leaving equipment and trash receptacles or trash piles in plain
view from both nearby roadways, residences, and the Sunset View Park. (Pictures
documenting these violations are available.)
PCDC Citation - (V)(J) General Notes (Page 18)
15. Failure to screen views from West Coast Highway (Special Landscaped Street)
Hoag is required to screen views of equipment, trash enclosures, and parking areas from
West Coast Highway. However, this requirement has not been met with respect to the
equipment around the cogeneration plant or to the lower campus parking lot.
PCDC Citation - (VI11)(C) Special Landscaped Street (Page 25)
PCDC Citation - (V)(J) Mechanical and Trash Enclosures (Page 18)
CONTINUING INVESTIGATIONS INTO ADDITIONAL POSSIBLE
VIOLATIONS
1. Hoag failed to adhere to requirement for good faith and fair dealing as required
by the DA.
During the approval process for the cogeneration plant, Hoag failed to clearly
communicate to the City, the Coastal Commission, or to nearby residents that the plant
would emit plumes of condensate, steam, and exhaust gases. This prevented the involved
governmental bodies and residents from properly evaluating or understanding the impact
of the plant on the community, and breached its good faith requirement to fully disclose
potential impacts.
During the approval process for the excavation of the lower campus bluff, Hoag
submitted to the Coastal Commission an application which grossly understated the
amount of vegetation which would be removed. (Documentation supporting this
statement is available upon request.) This prevented the Coastal Commission from
properly evaluating Hoag's request, and breached its good faith requirement to fully
disclose potential impacts.
DA Citation — (11)(7) Covenant of Good Faith and Fair Dealing (Page 19)
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In addition to numerous violations of the letter of the Planned Community Development
Criteria, Hoag has unfortunately also violated its spirit and intent. This spirit is perhaps
best expressed in the section on development "Standards" which can be found in the
section on Site Plan Reviews:
"Development shall be compatible with the character of the neighborhood and
surrounding sites and shall not be detrimental to the orderly and harmonious
development of the surroundings and the City. "
Development shall be sited and designed to maximize the aesthetic quality of the
project as viewed from surrounding roadways and properties.... "
PCDC Citation — Standards, (Page 27)
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