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HomeMy WebLinkAbout04-c_Additional Materials Received after Packet PublishedLAW OFFICES PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS ANGELO J. PALMIERI (1926 -1996) ROBERT F. WALDRON (1927.1998) ALAN H. WIENER ROBERT C. IHRKE- JAMES E. WILHELM' DENNIS G. TYLEW MICHAEL J. GREENS' DENNIS W. GHANA DAVID D. PARR' CHARLES H. WINTER PATRICK A. HENNESSEY DON FISHER GREGORY N. WEILER WARREN A. WILLIAMS JOHN R. LISTER CYNTHIA M. WOLCOTT GARY C. WEISBERG MICHAEL H. LEIFER SCOTT R. CARPENTER RICHARD A SALUS NORMAN J. RODICH RONALD M. COLE MICHAEL L. DANGELO STEPHEN A SCHECR DONNA L. SNOW RYAN M. EASTER ELISE M. KERN MELISA R. PEREZ ELIZABETH VALADEZ AMISH J. BANKER MICHAEL I. KEHOE ROBERT H. GARRETSON RYAN M.PRAGER CHADWICK C. BUNCH ANNIE C. CHU JERAD BELTZ HEATHER H. WHREHEAO ERIN BALSARA NADERI DEREK M. DEHANKE F. JULIAN FREEMAN III ERICA M. SOROSKY CASEY W. BOURKE KIMBERLY C. LUDWIN A M IREUR0,WL CORVORAM1ON 2603 MAIN STREET EAST TOWER - SUITE 1300 IRVINE, CALIFORNIA 926k 281 (949) B51 -9400 www.ptwww.com August 5, 2010 VIA HAND DELIVERY AND EMAIL Chairman Earl McDaniel City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92658 Robert Hawkins Charles Unsworth Michael Toerge Barry Eaton Bradley Hillgren Fred Ameri Planning Commissioners City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92658 P.O. BOX 19712 IRVINE, CA 92623-9712 WRITERS DIRECT DIAL NUMBER (949) 851 -7340 WRITERS DIRECT FACSIMILE NUMBER (949) 825 -5404 FIRMS DIRECT FACSIMILE NUMBERS (949) 851 -1554 1949) 757 -1225 reaster (pptwww.com REFER TO FILE NO. 31191 -001 Re: PRES Office Building B Project: Initial Study, Mitigated Negative Declaration, and Errata; General Plan and Planned Community Text Amendments (August 5, 2010 Planning Commission Meeting Agenda Item No. 4; PA2007 -213) Dear Mr. Chairman and Planning Commissioners: This office is legal counsel for Meyer Properties, a California limited partnership ('Meyer "), which owns that certain office building located at 4320 Von Karman Avenue, in the Koll Center Newport Planned Community (the "Koll Center "), City of Newport Beach, California (the "Meyer Building "). PALMIERI. TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 2 The Meyer Building is contiguous to the proposed project development of a 50 foot high, 11,960- gross - square feet single- tenant office building (the "Project ") at 4300 Von Karman Avenue, in the Koll Center Newport Planned Community, in the City of Newport Beach (the "City"). Accordingly, the Meyer Building will be directly affected by many of the adverse environmental impacts identified in the Mitigated Negative Declaration for the PRES Office Building B General Plan and Planned Community Text Amendments (the "Study "), and the Errata to the Study (the "Errata ") (which was released to the public on July 30, 2010), for the Project. Please note that Meyer did not receive notice of the Planning Commission public hearing on the Project scheduled for August 5, 2010. We discovered the meeting through our own research. Please ask City staff to ensure that all required notices for projects in the vicinity of or affecting the Meyer Building be sent in accordance with the law. As you are aware, this office submitted a comment letter on behalf of Meyer on June 7, 2010 (the "Initial Comment Letter "). The purpose of the Initial Comment Letter was to provide comments to the City regarding the inadequacy of the environmental review of the Project set forth in the Study, to inform the City that the proposed general plan amendment and amendment to the Koll Center Development Standards should not be adopted without first performing adequate environmental analysis pursuant to an environmental impact report, and that the Project is otherwise inappropriate for the Koll Center. The City has prepared the Errata to modify the Study to include revisions relating to the public comments. We have reviewed the Errata and are submitting this comment letter to inform the City that Charter Section 423 requires voter approval of the general plan amendment for the Project, that the Study, including the Errata, is still inadequate to serve as the environmental document for the Project under the California Environmental Quality Act ( "CEQA "), that the general plan amendment and Koll Center Development Standards text amendment for the Project should not be adopted, and that the Project is inappropriate for the Koll Center. CHARTER SECTION 423 (MEASURE S): SPLIT OF GENERAL PLAN AMENDMENTS. In addition to the proposed general plan amendment for the Project, another general plan amendment (see Agenda Item No. 5) is being proposed for a similar project PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 3 that is also within the Koll Center (the "Related Project "). This additional general plan amendment proposes to expand the additional allowable development within Statistical Area 4 of the Land Use Element of the General Plan, where both the Project and the Related Project are located, by 11,544 square feet. The general plan amendment for the Project also proposes to expand additional allowable development within Statistical Area 4 by 11,544 square feet. As discussed in detail below, these general plan amendments should not be considered independently, and should be combined into a single general plan amendment that is subject to voter approval pursuant to Charter Section 423. A. Text of Charter Section 423. As noted on p. 8 of the City of Newport Beach Planning Commission Staff Report for the August, 5, 2010 meeting, Agenda Item No. 4 (the "Staff Report"), Charter Section 423 requires voter approval for any major amendment to the Newport Beach General Plan. The text of Charter Section 423 states as follows: "Voter approval is required for any major amendment to the Newport Beach General Plan. A'major amendment' is one that significantly increases the maximum amount of traffic that allowed uses could generate, or significantly increases allowed density or intensity. 'Significantly increases' means over 100 peak hour trips (traffic), or over 100 dwelling units (density), or over 40,000 square feet of floor area (intensity); these thresholds shall apply to the total of: 1) Increases resulting from the amendment itself, plus 2) Eighty percent of the increases resulting from other amendments affecting the same neighborhood and adopted within the preceding ten years. 'Other amendments' does not include those approved by the voters. 'Neighborhood' shall mean a Statistical Area as shown in the Land Use Element of the General Plan, page 89, in effect from 1988 to 1998, and new Statistical Areas created from time to time for land subsequently annexed to the City. 'Voter approval is required' means that the amendment shall not take effect unless it has been submitted to the voters and approved by a maiority of those voting on it. Any such amendment shall be submitted to a public vote as a separate and distinct ballot measure notwithstanding its approval by the city council at the same time as one or more other amendments to the City's General Plan. The city council shall set any PALMIERI, TYLER, WIENER, WILEELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 4 election required by this Section for the municipal election next following city council approval of the amendment, or, by mutual agreement with the applicant for the amendment, may call a special election for this purpose with the cost of the special election shared by the applicant and the City as they may agree. In any election required by this Section, the ballot measure shall be worded such that a YES vote approves the amendment and a NO vote rejects the amendment; any such election in which the ballot measure is not so worded shall be void and shall have no effect." [Emphasis added.] B. Addition of Non - Residential Square Feet to Statistical Area L4 as Calculated in the StaffReport. The Staff Report indicates that none of the three thresholds that require a vote pursuant to Charter Section 423 are exceeded by the proposed general plan amendment for the Project. This conclusion is based on the calculations set forth in Tables 1 and 2 of the Staff Report. Tables 1 and 2 illustrate the additional square feet of non - residential floor area and increases of peak hour vehicle trips for two proposed general plan amendments, identified as GP2007 -009 and GP2008 -007, and a general plan amendment that was adopted on January 9, 2007, GP2006 -096. GP2007 -009 is the general plan amendment proposed to be adopted for the Project and GP2008 -007 is the general plan amendment proposed to be adopted for the Related Project. The analysis in Table 2 illustrates that the cumulative additional square feet of non - residential area that will be added to Statistical Area L4, for purposes of determining whether voter approval is required under Charter Section 423, is 39,992 square feet. As stated above, a general plan amendment that proposes to increase density by 40,000 square feet of non - residential floor area requires voter approval. Accordingly, Table 2 of the Staff Report indicates that the two proposed general plan amendments will fall merely 8 square feet shy of the 40,000 square foot limitation that would require voter approval. Please note that the calculation of 39,992 square feet was reached by characterizing the proposed general plan amendment for the Project as a "past amendment," therefore reducing the additional square footage proposed to be added by the general plan amendment for the Project to 80 percent of the actual additional square PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 5 footage. As set forth above, the thresholds for Charter Section 423 are determined by adding the total of increases resulting from the amendment itself to 80 percent of the increases resulting from the other amendments affecting the same Statistical Area and adopted within the preceding ten years. Without characterizing the proposed general plan amendment for the Project as a past amendment, the total additional square footage resulting from the two proposed general plan amendments and the general plan amendment adopted in 2007 would be 42,300.8 square feet, which would require the general plan amendment to be subject to voter approval. C. Addition of Peak -Hour Vehicle Trite. The analysis in Table 2 illustrates that the additional peak hour trips that will be added to Statistical Area L4, for purposes of determining whether voter approval is required under Charter Section 423, is 20.54 A.M. trips and 19.85 P.M. trips. As stated above, a general plan amendment that proposes to increase peak hour trips by 100 requires voter approval. In the aggregate, the three amendments listed in Table 2 will increase A.M. peak hour trips by 85.25 and P.M. peak hour trips by 95.09. Collectively, A.M. and P.M. peak hour trips will be increased by 180.34, if the proposed general plan amendment is characterized as a "past amendment," and 188.4175 peak hour trips if the two proposed general plan amendments are combined into a single amendment. Charter Section 423 does not make a distinction between A.M. and P.M. peak hour trips. To the contrary, it merely states that "'significant increase' means over 100 peak hour trios." However, for purposes of analyzing whether the amendments are subject to voter approval, the Staff Report divides the peak hour trips into A.M. and P.M. When the A.M. and P.M. peak hour trips are combined, they are greater than 100. Regardless of whether the general plan amendments for the Project or the Related Project are considered together or in independent amendments, the aggregate peak hour trips will exceed 100 and therefore the amendments are subject to voter approval pursuant to Charter Section 423. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 6 D. The Proposed General Plan Amendments Are Subiect to Voter Approval Pursuant to Charter Section 423. The two proposed general plan amendments each propose to increase the maximum development limit of the General Land Use Element of the General Plan by 11,544 gross square feet. Both general plan amendments are proposed for similar office building development projects within the same planned community business center, the Koll Center. Likewise, both projects will require an amendment to the Koll Center Newport Planned Community text to increase allowable building area for each proposed office site. Effectively, these two amendments are collectively proposing to expand office development within the Koll Center. Despite the cohesiveness inherent in planned communities, and documents relating to planned communities, the expansion of the office park has been split into two separate proposals. Given that both projects are being planned at the same time, are located within the same business center, and both propose to expand allowable development within Statistical Area L4, there is no apparent reason why the expansion of allowable development within the Koll Center would be piecemealed into two separate general plan amendments. What is apparent, however, is that these two proposed general plan amendments would require voter approval if the amendments were not split. As detailed above, without the benefit of characterizing the general plan amendment for the Project as a past amendment, and therefore reducing the additional square footage for the Project by 20 percent, a general plan amendment that includes the additional square footage for both developments in the Koll Center would require voter approval pursuant to Charter Section 423. The division of the proposed general plan amendments serves no purpose other than to circumvent voter approval. Approving these two amendments will effectively appropriate the power vested in the citizens of the City of Newport Beach to limit allowable development as set forth in the General Plan. Accordingly, these two amendments should not be recommended for approval by the Planning Commission, the amendments should be combined and reconsidered as one general plan amendment, and the combined general plan amendment should be subject to voter approval. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 7 II. UNLAWFUL PIECEMEALING OF THE ENVIRONMENTAL ANALYSIS OF THE PROJECT. CEQA Guidelines define 'Project' to mean the "whole of an action" that may result in either a direct or reasonably foreseeable indirect physical change in the environment. CEQA Guidelines 15378(a). 'Project is given a broad interpretation in order to maximize protection of the environment." McQueen v. Board of Directors of Midpennsulia Region Open Space District, 202 Cal. App. 3rd 1136 (1988). California courts have held that a lead agency must analyze each "project' consisting of a part of an entire action in a single environmental review document and not "split' a project into two or more segments. Such single comprehensive review ensures that environmental considerations do not become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have very dire consequences. Burbank - Glendale- Pasadena Airport Authority v. Hensler (1991) and Bozung v. Local Agency Formation Commission, 13 Cal. 3rd 263 (1975). Here, the Study does not review the entire action that is contemplated, which is tantamount to unlawful piecemealing. The Project is merely one piece of a much greater project that includes an additional General Plan amendment for the Related Project, an additional amendment to the Koll Center Development Standards text for the Related Project, and a massive residential development project in the Koll Center and property contiguous to the Koll Center to be governed by an Integrated Conceptual Development Plan (the 'Residential Project'). Accordingly, the environmental analysis relating to the Project is required to be analyzed together with the Related Project and the Residential Project. A. The General Plan Amendment and Amendment to Koll Center Development Standards. As discussed above, the proposed general plan amendment for the Project and the proposed general plan amendment for the Related Project should be combined into a single amendment. The cumulative impacts of these two projects must be reviewed in a single environmental impact report, and cannot be analyzed independently. These two projects may have many cumulative impacts that are not identified and addressed in the PALMIERI, TYLER, WIENER, WILRELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 8 Study and the Errata. Likewise, the cumulative environmental impacts relating to the amendments to the Koll Center Development Standards text for the Project and the Related Project must be analyzed together in a single EIR. The cumulative impacts of the two projects will certainly be greater than the sum of the impacts of each project as analyzed independently. For example, each project will result in environmental impacts to traffic, inter alia, in the immediate vicinity of the Koll Center. The cumulative impacts to traffic associated with the development of two projects within the Koll Center simultaneously will certainly be greater than the traffic impacts identified independently for each project. As set forth above, CEQA Guidelines provide a broad interpretation of "Project' to include the "whole of an action' that may result in either a direct or reasonably foreseeable indirect physical change in the environment. CEQA Guidelines 15378(a). It is clearly reasonably foreseeable that the Project and the Related Project within the Koll Center may result in direct and indirect physical changes in the environment that are attributable to the cumulative impacts of the two projects. Accordingly, the split of each project within the Koll Center is unlawful piecemealing, and an EIR must be prepared to identify and analyze the cumulative environmental impacts associated with both projects. B. General Plan Amendment No. GP2010 -002 and Airport Business Area Integrated Conceptual Develo ment Plan. In addition to the Related Project, the Planning Commission is also considering a project within the Koll Center, and immediately adjacent to the Koll Center, that proposes to build a residential village and utilize many of the common area features of the Koll Center to be governed by an Integrated Conceptual Development Plan (defined above as the 'Residential Development'). While the Planning Commission at its last meeting on July 22, 2010 continued further discussion on the Residential Development until an Integrated Conceptual Development Plan is presented consistent with requirements articulated by the Planning Commission, the Residential Development is reasonably foreseeable. The Project, the Related Project, and the Residential Project are all part of an immense development scheme to greatly expand the office development and residential PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 9 development within the Koll Center and adjacent properties. The cumulative environmental impacts associated with the three projects will be much greater than the environmental impacts associated with each project independently. Furthermore, environmental impacts for each project have been analyzed independently in three different studies (none of which is an EIR), omitting the requisite analysis of cumulative impacts. Also, please note that it is irrelevant that different developers plan to implement the construction of each project. Each project is a smaller part of a greater sized, reasonably foreseeable project to expand the Koll Center to include additional office buildings and residential use. Regardless of how many developers are involved, the projects cannot be split into fragments for purposes of environmental analysis. Pursuant to CEQA Guidelines, the "whole of the project' cannot be piecemealed into smaller projects to fragment environmental analysis thereof. It is reasonably foreseeable that the Project, the Related Project, and the Residential Project, will result in direct and indirect environmental impacts attributable to the cumulative effect of the construction of all three projects within the Koll Center. Accordingly, the environmental impacts associated with the three projects must be analyzed in a single environmental impact report. III. AN EIR MUST BE PREPARED FOR THE PROJECT. Based on the information provided in the Study and the Errata, as well as the environmental impacts that were not analyzed therein, it is apparent that there is a fair argument on the basis of substantial evidence that the Project will result in significant adverse environmental impacts. Accordingly, pursuant to CEQA, an Environmental Impact Report ( "EIR ") must be prepared for the Project. A. Preparation of EIR Pursuant to CEQA. CEQA requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d, 68, 75. "If there is substantial evidence of a significant environmental impact, evidence to the contrary doeE not dispense with the need for an EIR when it can still be "fairly argued" that the project PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 10 may have a significant impact." Oro Fino Gold Mining Corporation v. County of El Dorado, (3d Dist. 1990) 225 Cal. App. 3d 872, 881 -885. As detailed in the Initial Comment Letter, and further detailed below, a fair argument may be made that the Project may have a significant impact on the environment. B. Environmental Impacts Identified and Analyzed in the Study and the Errata. As detailed in the Initial Comment Letter, there are several environmental impacts in the Study that trigger the requirement that an EIR be prepared for the Project. Additionally, there are several environmental impacts that are identified in the Errata, and several environmental impacts that were not identified in either the Study or the Errata, that also trigger the requirement that an EIR be prepared for the Project, as follows: Aesthetics. The Errata does not expand on the identification and analysis of environmental impacts to scenic resources. Instead, the Errata revises the language relating to scenic resources to further limit any discussion of scenic resources to merely trees, rock outcroppings, and historic buildings. As set forth in the Initial Comment Letter, the Study limited any analysis of impacts to scenic resources to the three examples provided in the CEQA Initial Study Environmental Checklist: trees, rock outcroppings, and historic buildings along a scenic highway. The Errata confirms this limited scope of review of the environmental impacts to scenic resources in the immediate vicinity of the Project site. Scenic resources are not limited to the three examples set forth in the CEQA Initial Study Environmental Checklist. The Lake and a 36 ft. tall mature tree located in the Project Area are scenic resources, impacts thereto must be analyzed, and such impacts were not analyzed in the Study nor the Errata. Accordingly, impacts to the Lake, the 36 ft. tall mature tree, and other scenic resources must be analyzed in an EIR. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 11 2. Biological Resources. The Errata expands the analysis of environmental impacts to riparian habitat from the limited analysis that was provided in the Study. Specifically, a biological survey of the site was conducted by ICF on June 22, 2010 (the "ICF Survey ") to determine whether the Project would impact the riparian habitat in the immediate vicinity of the Project area. While we appreciate that the ICF Survey was conducted, apparently in response to the Initial Comment Letter, the ICF Survey and the Errata are inadequate to overcome the deficiencies in the Study. Paul Lehman ( "Lehman "), an expert on avian distribution and identification and former editor of the American Birding Association's Birding magazine, detailed in a letter (the "Lehman Letter ") recent biological surveys of the Project site conducted by Hamilton Biological, Inc. (the "Hamilton Survey "). The Lehman Letter analyzes the ICF Survey, the Hamilton Survey, and is attached to this letter as Exhibit "A ", along with Lehman's curriculum vitae. The conclusions reached in the ICF Survey differ greatly from the conclusions reached in the Lehman Letter. Furthermore, the ICF Survey was not conducted at appropriate times, analyzed potential impacts to species that have no potential to occur anywhere near the site, and failed to identify and analyze potential impacts to special- status species known from Upper Newport Bay, located 0.8 mile southwest of the Project site, or San Joaquin March, located 0.6 mile east of the Project site, and likely to use the Lake as a habitat. Some of the more significant points raised in the Lehman Letter are as follows: a. The ICF Survey Was Not Conducted at Appropriate Times. The ICF Survey was conducted by ICF on June 22, 2010. The Study also states that field surveys were conducted at the site (published prior to the ICF Study), but no specific studies are referenced in the Study and the ICF Survey is the only survey that is specifically referenced in the Errata. As stated in the Lehman Letter, various special - status species of wildlife are likely to visit and utilize the Lake at various times throughout the year. For example, the California Least Terns and Black Skimmers may forage at the Lake in the late Spring. No study was conducted during the Spring to determine whether special- status species forage at the Lake. Furthermore, as the Lehman Letter points out, the California Least Terns have failed in Upper Newport Bay and this year is not representative of typical PALMIERI, TYLER, WIENER. WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 12 years where such species would be expected to forage at the Lake. Likewise, the ICF Survey did not study during the known foraging patterns of other special - status species or study at appropriate times of day. b. Omission of the Study of Other Special- Status Species. The Lehman Letter identifies several species that are recognized as California Species of Special Concern that have been observed, or may be expected to occur, at the Project site, but were not identified in the ICF Survey. These species include, without limitation, the following: (1) Least Bittern; (2) American Peregrine Falcon; (3) California Least Tern; (4) Black Skimmer; (5) Clark's Marsh Wren; and (6) Tricolored Blackbird. Additionally, the Lehman Letter identifies several species that are included on the California Department of Fish and Game's Special Animals list. This list is also referred to as the list of "species at risk" or "special status species." The Department of Fish and Game considers the taxa on this list to be those of greatest conservation need. The species on the Special Animals list that have been observed, or may be expected to occur at the Lake and the Project site include, without limitation, the following: (1) Allen's Hummingbird; (2) The Osprey; (3) Cooper's Hawk; (4) Costa's Hummingbird; and (5) Nuttal's Woodpecker. Several species that are considered California Species of Special Concern and are listed on the California Department of Fish and Game's Special Animals list have been observed, and may be expected to occur, at the Project. However, the potential impacts PALMIERI. TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 13 to many of the species were not identified in the Study or the Errata. The potential impacts to these species must be identified in an EIR. C. Foraging and Flight Path. It is also important to note that the discussion of impacts to riparian habitat in the Study and the Errata limited the scope of review to species that may nest in the Project area. However, the Errata failed to discuss species that nest elsewhere, but forage in the Project area. Additionally, the Study and the Errata failed to identify and analyze any impacts to species whose flight path may be impacted by the erection of a 50 ft. tall building between the Lake and Upper Newport Bay. The Study and the Errata failed to identify the potential impacts to these special - status species that have been observed, or may be expected to occur, at the Lake and the Project site. Accordingly, a more detailed analysis of the potential environmental impacts to the riparian habitat in the immediate vicinity of the Project site must be included in an EIR for the Project. 3. Additional Revisions Provided in the Errata. In addition to revisions to the discussion of environmental impacts relating to aesthetics and biological resources, the Errata provides revisions to the discussion of impacts relating to hazards and hazardous materials, hydrology and water quality, noise, public services, and transportation and traffic. None of these revisions discussed cumulative impacts resulting from the Project, the Related Project, and the Residential Project. Furthermore, the revisions discussed in the Errata do not cure the inadequacies identified in the Initial Comment Letter. The significant environmental impacts identified in the Initial Comment Letter must be further analyzed in an EIR. In sum, these cumulative environmental impacts will be far greater than the impacts identified and analyzed independently in the environmental documents for each Project. Additionally, the analysis of the significant environmental impacts identified independently in the Study is inadequate. Accordingly, the environmental impacts must be identified and analyzed in a single EIR for the Project, the Related Project, and the Residential Project. PALMIERI. TYLER. WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 14 IV. GENERAL PLAN AND KOLL CENTER STANDARDS As detailed in the Initial Comment Letter, the amendments to the General Plan and the Koll Center Newport Planned Community text are inconsistent with the land use policies set forth therein. Additionally, the proposed exception to the Koll Center Newport Planned Community General Development standards (the "Development Standards "), and the accompanying tentative parcel map are inconsistent with the land use policies set forth in the Development Standards. A. The Proposed General Plan Amendment for the Project is Inconsistent with the Land Use Policies Set Forth in the General Plan. The Initial Comment Letter discusses in detail the inconsistency between the general plan amendment for the Project and the land use policies set forth in the General Plan. The Errata made no revisions to the analysis of the environmental impacts to land use, and therefore the analysis of environmental impacts to land use in the Initial Comment Letter remains unrefuted. Generally, the general plan amendment for the Project is inconsistent with the General Plan's maximum development limit square footage in specific areas of the City. This amendment is also inconsistent with the City's Vision Statement and the City's express stated goal to reduce potential new commercial and office space by 1.45 million square feet. Despite this limitation, the Project proposes to increase square footage limitations, in direct conflict with the General Plan's Vision Statement and stated goals. B. Inconsistency with Koll Center Newport Planned Community Development Standards. The Project proposes to amend the Development Standards to allow for an exception to minimum site area requirements and to allow an exception to off - street parking requirements. The Staff Report concludes that there are sufficient facts to support the requisite findings to allow an exception to minimum site area requirements provided by the Development Standards. Likewise, the Staff Report concludes that the City Council has the authority to approve of an exception to the off - street parking requirements of the Development Standards. PALMIERI, TYLER, WIENER. WILEELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 15 Exception to Minimum Site Area. The Development Standards require that a site area consist of no less than 30,000 square feet. The Project proposes to subdivide the existing 55,779 square foot parcel into two separate parcels. One parcel would consist of approximately 32,395 square feet, and the second parcel would consist of approximately 23,383 square feet. The Staff Report concludes that the granting of the exception is compliant with the requisite findings necessary to support the exception, as follows: (1) the exception will not be detrimental to the public welfare or injurious to other property in the vicinity and (2) that the intent of the Development Standards are substantially met. Despite recommending the draconian measure of amending a fundamental tenet of the Development Standards, the minimum site area, that is a foundation of the Koll Center planned community, the City does not attempt to explain what circumstances exist that justify allowing such an exception. The Development Standards serve the purpose of establishing and preserving the cohesive nature of a planned business community. The facts in support of the findings provided in the Staff Report are simply too superficial to justify this exception. Although the site area may comply with building envelope requirements, setback requirements, and will not exceed maximum height restrictions, as the Staff Report points out, this does not justify allowing an exception to minimum site area. Nor does the fact that the project site is fully developed and that there are lot sizes in the vicinity of the site that are similar to or smaller than the proposed lot size. The facts in support of the finding that the intent of the Development Standards are met are equally superficial. The principal intent of the Development Standards is to create a cohesive, planned community by establishing certain standards that will create a consistent and unified office park. Adopting an exception to any development standard is fundamentally inconsistent with the intent of the Development Standards. Moreover, the Staff Report concludes on p. 12 that if the exception is granted, then the intent of the Development Standards will be met. These two concepts are mutually exclusive. The intent of the Development Standards must be determined by reviewing them prior to making exceptions. If the approval of an exception itself is manifest proof PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 16 of satisfaction of requisite intent, then the analysis of the intent of the Development Standards is a sham. Such a revision will set precedent for revising Development Standards in the future without actually considering the intent of the Development Standards prior to making such revision. The exception to the Development Standards for minimum site area is not supported by the findings set forth in the Staff Report, and therefore the exception for minimum site area should not be approved. 2. Exception to General Parking Requirement Standards. The Staff Report determined that the City Council has the authority to lower the off - street parking requirements from one space for each 225 square feet of net floor area to one space for each 250 square feet of net floor area. Additionally, the Staff Report recommends that this exception be granted. In reaching this conclusion, the Staff Report notes that, if the exception to reduce the off - street parking requirement were granted, the intent of providing adequate off - street parking would be met. Again, these concepts are mutually exclusive and the approval of an exception in and of itself may not be considered proof that the intent of the Development Standards was met. Furthermore, the analysis is too superficial to justify providing this exception. The Staff Report states that the off - street parking requirements are consistent with the Newport Beach Municipal Code (the "NBMC ") for business and professional office use. This is irrelevant to the discussion of parking requirements that are specific to the Koll Center. The parking requirements in the Koll Center are more stringent than the general parking requirements set forth in the Newport Beach Municipal Code in order to preserve specific standards that were created for the Koll Center community. The general parking requirement standards were established to provide ample parking in the Koll Center, and to preserve standards that will create and preserve a consistent and unified office park. Accordingly, the exception to the general parking requirement standards should not be approved. PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 17 3. Tentative Parcel Man. The Project proposes to approve a tentative parcel map to subdivide the existing 55,779 square foot parcel of land into two separate parcels. In order to approve a tentative parcel map, the decision - making body must make all of the 11 findings set forth in Section 19.12.070 of Title 19 of the NBMC. The Staff Report concludes that the proposed parcel map is consistent with the legislative intent of Title 20 of the NBMC, and that the facts set forth in the Staff Report support all 11 findings required by the NBMC. However, many of the findings required to approve the tentative parcel map cannot be met, including but not limited to the following: (1) The first finding requires that the proposed map and the design or improvements of the subdivision are consistent with the General Plan and any applicable specific plan, and with applicable provisions of the Subdivision Map Act and this Subdivision Code. As discussed in detail above, the Project is inconsistent with the General Plan and the Development Standards. Therefore, the tentative parcel map is inconsistent with the first finding, which is required to be met in order to approve the tentative parcel map. (2) The third finding requires that the design of the subdivision or the proposed improvements will not cause substantial environmental damage nor substantially and avoidably injure fish or wildlife or their habitat. Furthermore, notwithstanding the foregoing, the decision - making body may nevertheless approve such a subdivision if an environmental impact report was prepared for the project and a finding was made pursuant to Section 21081 of CEQA that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. Again, as discussed in detail above, the Study and Errata have not adequately analyzed the potential impacts to species located in the Project area. Furthermore, an EIR was not prepared for the Project, and therefore the decision - making body may not find pursuant to Section 21081 of CEQA that other considerations make infeasible other alternatives. Accordingly, the third finding set forth in Section 19.28.010 of the NBMC cannot be met. (3) The fifth finding requires that the subdivision not conflict with easements acquired by the public at large for access through or use of property within the proposed PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP City of Newport Beach Planning Commission August 5, 2010 Page 18 subdivision. As stated above, the Residential Project proposes to utilize certain portions of the Koll Center as common areas for the benefit of the residents of the Residential Project. No analysis was provided in the Staff Report regarding any potential conflicts between the proposed Residential Project and the tentative parcel map. Not less than three of the 11 findings required to support approval of the tentative parcel map cannot be met. Additionally, further analysis of environmental impacts relating to land use, biological resources, and cumulative impacts attributable to the Project and the Related Project is required to determine whether all 11 of the findings may be met. Accordingly, the tentative parcel map cannot be approved under Section 19.28.010 of the NBMC. V. CONCLUSION. For the reasons set forth above, Charter Section 423 requires voter approval of the general plan amendment for the Project, the Study, including the Errata, is still inadequate to serve as the environmental document for the Project under CEQA, the general plan amendment and Development Standards text amendment for the Project should not be adopted, and the Project is inappropriate for and inconsistent with the Newport Beach General Plan and Development Standards for the Koll Center. Very truly yours, Ryan M. Easter RME:fjf cc: David Lepo, Planning Director Newport Beach City Clerk Meyer Properties Michael H. Leifer, Esq. EXHIBIT "A" August 5, 2010 James B. Hasty, Senior Vice President Meyer Properties 4320 Von Karman Avenue Newport Beach, CA 92660 Subject: Biological Review, PRES Office Building B Dear Mr. Hasty, At your request, I have reviewed environmental documentation provided by the City of Newport Beach (City) regarding a mitigated negative declaration (MND) prepared in support of a project known as the PRES Office Building B General Plan and Planned Community Text Amendments (PRES). This letter report provides the results of my review. My qualifications to conduct this review are provided in the attached biography. Methods I reviewed all relevant portions of the MND, provided on the City's web page. This included: ICF Jones & Stokes. 2010. Initial Study and Mitigated Negative Declaration for the PRES Office Building B General Plan and Planned Community Text Amendments. Report dated July 2010 prepared for the City of Newport Beach Planning Department. Section IV, Biological Resources. ICF International. 2010. Summary of Biological Literature Review and Field Visit Conducted for the PRES Office Building B General Plan and Planned Community Text Amendments. Memorandum dated June 28, 2010, from biologist Paul Schwartz to project manager Nicole Williams. I also reviewed the letter dated June 7, 2010, from Ryan M. Easter of Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP, and the City's responses. Biologist Robert Hamilton of Hamilton Biological, Inc., visited the project site during the afternoons of July 31 and August 2, spending approximately one hour in the project vicinity during each visit. During these visits Mr. Hamilton noted plant and wildlife species present and the general condition of the project site and nearby man -made ponds on either side of Von Karman Avenue. Mr. Hamilton provided me with photographs showing the condition of the project site and the two nearby ponds. Review Comments The main issues that stand out from my review of this project relate to the results of the literature search and the assumptions made by the project biologists about which species could, or could not, occur at the project site and adjacent retarding basin pond. The memorandum from Mr. Schwartz states: Prior to conducting the field survey, a California Natural Diversity Database (CNDDB) (CNDDB 2010) search was completed to detect special - status wildlife and plant species with the potential to occur within 5 miles of the project area. The species list resulting from the search is provided in Table 1. Table l include entries for numerous species of plant and wildlife that do not occur within 5 miles of the project site, and have no potential to occur anywhere near the site. These include Cismontane Nolina ( Nolina cismontana; occurs in the Santa Ana Mountains), Santa Ana River Woollystar (Eriastrum densifolium ssp. sanctorum; unrecorded south of Featherly Park near the Riverside County line), and even the Northern Leopard Frog (Lithobates pipiens), a species with a natural distribution that includes only the northern part of California. Given that the project site is located near two man-made ponds that support small fish and emergent marsh vegetation, Table 1 should have included certain special - status species known from Upper Newport Bay, located only 0.8 mile southwest of the project site, and /or San Joaquin Marsh, located only 0.6 mile east of the project site. The following special - status species of potential relevance to the proposed project are not included in Table 1: Least Bittern (Ixobtychus exilis). This California Species of Special Concern is known to occur in stands of cat -tails and rules at San Joaquin Marsh and other freshwater marshes in Orange County, although those stands are typically larger than those on the project site. The MND failed to mention the Least Bittern and no evaluation was made by the project biologist. However, given the relative small size and isolated, urban nature of this cat -tail habitat in the retarding basin pond, it is very unlikely that Least Bittern nests on the site, and this species would —at best —be a very irregular visitor. American Peregrine Falcon (Falco peregrinus anatum). This state- endangered species is known to occur regularly at both Upper Newport Bay and San Joaquin Marsh, and Peregrine Falcons have been recorded nesting on the Marriott Hotel at Fashion Island in Newport Beach (Gallagher, S. J., and Bloom, P. H. 1997. Atlas of Breeding Birds, Orange County, California. Sea and Sage Audubon Press, Irvine, CA). Although this species could occur on the project site, the MND failed to mention the Peregrine Falcon and no evaluation was made by the project biologist. The Peregrine Falcon would likely be an irregular visitor, mostly in search of possible prey at the retarding basin pond —and not to the actual proposed site of the PRIES building. California Least Tern (Sternula antillarum browny). This species, listed as endangered by state and federal governments, nests on a sand island near the upper end of Upper Newport Bay and is "regularly encountered at golf course ponds and similar sites within a mile or two of the coast" in Orange County (Hamilton, R. A. and Willick, D. R. 1996. The Birds of Orange County, California: Status and Distribution. Sea and Sage Press, Sea and Sage Audubon Society, Irvine, CA) and the same is true in San Diego County (pers. obs.). Given that their nearest nesting colony is located only 1.2 miles southwest of the project site (R. A. Hamilton pers. comm.), and given the large population of small fish in the ponds adjacent to the project site (Mr. Hamilton noted that these fish are easily seen from the edges of the ponds), I believe that Least Terns might make rare or occasional summer foraging visits of these ponds during normal years. Mr. Hamilton did not see any tems at the ponds during his field visits, but the Least Terns have failed in their nesting at Upper Newport Bay this year (R. A. Hamilton pers. comm.) and Mr. Hamilton has not seen them anywhere at the bay since early July (he monitors the ongoing dredging work at the bay and inspect the tems' nesting island approximately once a week). Since July /August 2010 has not been a period of normal activity for Least Terns at Upper Newport Bay, surveys of the ponds near the project site during this period do not provide a reliable indication of the species' status there during a normal year. Black Skimmer (Rynchops niger). Like the Least Tern, this California Species of Special Concern regularly nests near the upper end of Upper Newport Bay and regularly forages "within a mile or two of the coast" (Hamilton, R. A. and Willick, D. R. 1996. The Birds of Orange County, California: Status and Distribution. Sea and Sage Press, Sea and Sage Audubon Society, Irvine, CA). Similar to the tem, skimmers could make rare foraging visits to the ponds near the project site during normal years, probably at night. Mr. Hamilton did not see any skimmers at the ponds during his field visits, but, like the Least Terns, Black Skimmers have failed in their nesting at Upper Newport Bay this year (R. A. Hamilton pers. comm.). Mr. Hamilton has seen low numbers of skimmers at the bay since early July. Since July /August 2010 has not been a period of normal activity for skimmers at Upper Newport Bay, surveys of the ponds near the project site during this period do not provide a reliable indication of the species' status there during a normal year. Clark's Marsh Wren (Cistothorus palustris clarkae). This California Species of Special Concern is a sedentary bird that occurs in stands of cat -tails and tules at San Joaquin Marsh and Upper Newport Bay, although those stands are typically larger than those on the project site. The MND failed to mention Clark's Marsh Wren and no evaluation was made by the project biologist. Tricolored Blackbird (Agelaius tricolor). This California Species of Special Concern breeds in emergent marsh vegetation and feeds in grasslands, sometimes including turf. Although it is doubtful that Tricolored Blackbirds make substantial use of this site, the MND failed to mention the Tricolored Blackbird and no evaluation was made by the project biologist. 9 Several other species that are not listed as threatened or endangered, or identified as California Species of Special Concern, are placed on a "Special Animals" list by the California Department of Fish and Game: "Special Animals" is a general term that refers to all of the taxa the California Natural Diversity Data Base is interested in tracking, regardless of their legal or protection status. This list is also referred to as the list of "species at risk" or "special status species." The Department of Fish and Game considers the taxa on this list to be those of greatest conservation need. ( http:// dl' g. ca. eov/ bioscodatalcnddbindts /SPAnimals pdt) CEQA documents typically identify and evaluate a project's potential effects on all Special Animals that are known or expected to occur on a given site. Mr. Hamilton observed an Allen's Hummingbird (Selasphorus sasin) across the street from the project site on August 2, 2010. The Osprey (Pandion haliaetus) has been reported occasionally foraging in ponds near the project site (James Hasty pers. comm.). Other Special Animals with potential to occur on the site include Cooper's Hawk (Accipiter cooperir), Costa's Hummingbird (Calypte costae), and Nuttall's Woodpecker (Picoi- des nuttallir). The Osprey, which has only recently recolonized Orange County, is now known to nest at both Upper Newport Bay and San Joaquin Marsh. It seems unlikely that this species occurs regularly at the ponds near the project site, but this question was not evaluated in the MND. The other species mentioned above are common across much of Orange County and the wider region, and so are not especially "sensitive," but again, it is the project biologist's responsibility to evaluate their potential for occurrence on the site and to analyze the potential significance of any impacts. None of these species was mentioned in the biological documentation for the MND. Conclusions The stated objective of the biological report prepared for the MND was to identify "special- status wildlife and plant species with the potential to occur within 5 miles of the project area," but evaluated a number of species that do not occur within 5 miles of the project site and/or that have no potential to occur in the project setting. More importantly, the MND did not evaluate various special - status species known to occur within a mile of the project site, at Upper Newport Bay and San Joaquin Marsh. I cannot do more than speculate about the actual status of several of these species identified in this comment letter, but it should be stated that some of them have been reported on or near the site and others could potentially use the ponds, at least on an irregular basis. Peregrine Falcons have been recorded nesting on a building in Newport Beach. The definitive publication on the status and distribution of birds in Orange County states that both California Least Terns and Black Skimmers regularly forage at freshwater sites within a mile or two of the coast (including "golf course ponds and similar sites" for the tern). Whether either of these species forage at the two ponds adjacent to the project site is unknown because adequate surveys were not conducted during the late spring /early summer period in 2010 when these species were actively nesting at Upper Newport Bay. Now that their local nesting has failed, numbers of both of these species at the head of Newport Bay are reduced from their normal late- summer 4 levels (R. A. Hamilton pers. comm.), and the birds that remain may not be following the foraging patterns they normally follow when they are raising young. It is my conclusion that the MND is deficient in its failure to fully (1) discuss these special- status species and their known patterns of foraging in Orange County, (2) conduct surveys at appropriate times of year and appropriate times of day directed toward determining their status on the site, or (3) evaluate the potential effects of adding a tall structure along the flight -line between the Koll Center ponds and Upper Newport Bay. I appreciate the opportunity to provide this review. If you wish to review any matters, please call me at (858) 268 -1937 or send e-mail to lehman.paul @verizon.net. Sincerely, Paul E. Lehman Attachment: Lehman biography PAUL LEHMAN 11192 Portobelo Drive, San Diego, CA 92124 858 - 268 -1937 (home); 609 - 313 -3129 (cell) lehman.paul@verizon.net Paul Lehman has written many articles and papers on avian distribution and identification. Formerly a lecturer in physical geography and environmental studies at the University of California in Santa Barbara, and past editor of the American Birding Associations Birding magazine for nine years (1989 -1997), Paul continues to give lectures on weather and bird distribution, migration, and vagrancy. He also leads bird tours throughout North America for Wings, hic. He is an associate editor for both North American Birds and Western Birds magazines, and he has been a principal consultant on most of the popular field guides on the market today, primarily as the chief consultant and compiler for the range maps in The Sibley Field Guides to Birds of Eastern and Western North America, Roger Tory Peterson's A Field Guide to the Birds of Eastern and Central North America and A Field Guide to the Birds of Western North America, the National Geographic Society's Field Guide to the Birds of North America and Complete Birds of North America, the Smithsonian Guide to the Birds of North America, and the National Wildlife Federation Guide to the Birds of North America. He was also chief editor of the ABA /Lane birdfinding guide to North America's major metropolitan regions, and was managing editor of the recently published Rare Birds of California book. 2 Chapter 4 Errata to the Draft IS /MND Introduction This section of the document addresses modifications to the draft ISIMND for the proposed PRES Office Building B. It presents all revisions related to public comments, as determined necessary by the Department. Only sections that had revisions based on the public comments are included, and sections that had no revisions are not included. Readers are referred to Chapters I through 3 of this final IS/MND to view complete sections. This section provides changes to the draft IS /MND in revision -mode text (i.e., deletions are shown with , it it -'I,, - +-_4i and additions are shown with underline). These notations are meant to provide clarification, corrections, or minor revisions as needed as a result of public comments or because of changes in the project since the publication and distribution of the draft IS/MND. Changes to the Draft IS /MND The following changes to the text as presented below are incorporated into the final IS/MND. Chapter 3. Initial Study Environmental Checklist Aesthetics, Page 3 -5 b. Substantially damage scenic resources, including, but Plot limited to trees, rock outcroppings, and historic buildings along a scenic highway? No Impact tThere are no designated scenic highways in the vicinity of the proposed project (Califomia Department of Transportation 2009). In addition. the County of Orange General PRIES Office Building B July 2010 Initial Study/Mitigated Negative Declaration 4 -1 ICF AS 00872,09 City of Newport Beach Chapter 4. Errata to the Draft IS /MND Plan was also reviewed to detenttine if there are locally designated scenic highways in the vicinity of the project site (County of Orange 2004) Furthermore, the project site does not consist of any rock outcroppings that are of significant visual quality. There are no historic buildings on site or in the project area that would be affected by the proposed project Therefore, the proposed project would not damage wscenic resources along a scenic highway, and no impacts would occur. IV. Biological Resources, Pages 3 -17 and 3 -18 b. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? No Impact. The proposed project would not have an adverse effect on any riparian habitat. According Figure NR2 of the City of Newport Beach General Plan Natural Resources Element, the project site is not located within an Environmental Study Area (City of Newport Beach 2006a). Additionally, field surveys of the site confirmed that the project site is fully developed and void of any riparian habitat or other natural communities. Specifically. ICF performed u biological survey of the site on June 22 2010 (see new Appendix G for the Biological Memorandum). The biological survey confirmed the project site contains no riparian habitat and the proposed project would not have an impact on the retarding basin Therefore, there would be no impacts from proiect implementation on the habitat that the retarding basin provides to bird scecies including the great egret (Arden alba). Califomia brown pelican (Pelecanus occidentalis), great blue heron (Arden herodiac) and mallard (Anas nlarvrhynchos). Of the species listed the brown pelican a federally protected species when present in nesting colonies and communal roosts is only known to breed on Anacapa Island and a few other Channel Islands in southern California Therefore, there would be no project - related impacts on California brown Mlican nesting colonies or communal roosts. While it is possible for the brown celican to be observed using the retarding basin the area provides no habitat for the pelican that would be affected as a result of construction or operation of the proposed project. The retarding basin is not within the project site boundaries and the proposed project would have no permanent or temporary direct impacts on the retarding basin. Therefore, the proposed project would not affect riparian habitat or other sensitive natural community and no impacts would occur. d. Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? Less- than - Significant Impact with Mitigation Incorporated. The proposed project would not interfere with the movement of fish or wildlife. The project site is located in fully urbanized setting and is not connected to other PRES Office Building B July 2010 Initial Study/Mitigated Negative Declaration 4-2 ICF AS OOe73.09 City of Newport Beach Chapter 4. Errata to the Draft IS /MIND undeveloped lands. According to Figures NRl and NR2 of the City of Newport Beach General Plan Natural Resources Element, the project site is not identified as a biological resources area, nor is it located in an Environmental Study Area (City of Newport Beach 2006x) and the site is not connected to any wildlife corridors. Therefore, the project site is not considered a part of a regional wildlife corridor that would facilitate movement of wildlife species from one area to another. The retarding basin and adjacent areas provide marginal- to low - quality foraging habitat for wading birds such as the great blue heron and rgreat egret The ornamental trees within and adjacent to the project site provide at best marginal roosting habitat for wading birds, however, no sign of oast or current nesting or roosting from wading birds was observed during a field visitgerformed on June 22. 2010 (Appendix G). Disturbance of the ornamental lawn and trees on the project site would remove approximately 2,000 square feet or 0.05 acre of marginal- to low - quality foraging habitat for wading birds Furthermore there are many locations of high - quality foraging habitat birds would likely use within the cities of Newport Beach and Irvine, including Newport Back Buy and the San Joaquin Marsh. The retarding basin is not within the project site boundaries and the proposed project would have no permanent or temporary direct impacts on the retarding basin. Temporary indirect impacts (noise light etc.) on the retarding basin during the construction period could occur due to the proximity of the site to the basin. Given that the retarding basin provides low - quality habitat for waterfowl and that the project is in the immediate vicinity of other large local estuaries that birds use, temporary construction- related impacts would be considered less than significant and no mitigation would be required The project site does not support daily movement of species. Because of the poor quality of foraging habitat that the ornamental lawn and ornamental trees provide, and because the project is in the vicinity of local estuaries (San Joaquin Marsh Upper Newpgrt Bay) used by birds project- related impacts to wading bird foraging habitat would be considered less than significant Although the existing ornamental trees on site do not art Rat antieiptilled to provide important habitat, the removal of ornamental trees on site could reduce the number of stopover locations or nesting sites for migratory birds. Therefore, Mitigation Measure BI0-1 is proposed to reduce the impact on migratory birds should the trees be removed during migration season. The incorporation of Mitigation Measure 1310 -1 would further minimize impacts on wading or tree roosting birds. Impacts would be less than significant with mitigation incorporated. Vill. Hazards and Hazardous Materials, Pages 3 -34 to 3 -35 e. For a project within an airport land use plan or, where such a plan has not been adopted, within 2 miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? PRIES Office Building B July 2010 Initial Study /Mitigated Negative Declaration 4-3 ICF AS 00873.08 City of Newport Beach Chapter 4. Errata to the Draft IS/MND Less- than - Significant Impact. The closest airport is John Wayne Airport, which is approximately 1.0 mile north of the project site. The project site is located within the boundaries of the Airport Environs Land Use Plan ( AELUP) for John Wayne Airport. The proposed project is within the height restriction zone for the John Wayne Airport and the notification area of the Federal Aviation Regulation (FAR) Part 77 Imaginary Surfaces aeronautical obstruction area. All building height restrictions identified in the Airport Environs Land Use Plan ( AELUP) have as their ultimate limits the imaginary surfaces as applicable and defined in Part 77 of the Federal Aviation Regulations. "Imaginary Surfaces" are defined by means of elevations, heights, and slopes in relation to individual arts, the spaces above which are reserved for air navigation. The proposed project site is located within FAR Part 77 Obstruction for Imaginary Surfaces for JWA as identified by the FAR Part 77 John Wayne AirLort Obstruction Imaginary Surfaces Figure in Appendix D of the AELUP. The ALUC uses all of the FAR Part 77.73 standards along with the results of FAA aeronautical studies, or other studies deemed necessary by the ALUC in order to determine if a structure is an "obstruction." Section 77.13 of the FAR requires the notification of the Federal Aviation Administration (FAA) for any construction or alteration that: ■ Exceeds 200 feet in height about the ground level at its site. ■ Exceeds a height greater than an imaginary surface extending outward and upward at specific slope characteristics at 20,000 feet, 10,000 feet, and 5,000 feet from the nearest point of the airport runway. ■ Is a highway with specific characteristics. ■ Is occurring at an airport. A referral by the City to the Airport Land Use Commission for Consistency Review is required due to the location of the proposal within the AELUP Planning Area and due to the nature of the required City approvals (i.e. eg neral plan amendment) under PUC Section 21676(b). The proposed project includes construction of a three -level office building with a maximum height of 50 feet. The project site is approximately 492 -feet above mean sea level . Therefore, the proposed project would exceed the notice criteria for 77.13(a)(2) by approximately 4 feet (Federal Aviation Administration 2010). Projects that meet the height restriction threshold must comply with federal and state procedures, including filing a Notice of Proposed Construction or Alteration (Federal Aviation Fonn 7460 -1). Therefore, the City of Newport Beach would file a notice of Proposed Construction or Alteration with FAA (FAA Form 7460 -1) in accordance with Federal Aviation Regulation (FAR) Part 77. The FAA would then perform an aeronautical study to determine if the proiect is considered an obstruction and if the pr6ect is determined to be a hazard to air navigation (Airport Land Use Commission 2008). Following FAA's aeronautical study of the project site, the proposed proiect would comply with conditions of approval imposed or recommended by FAA. The City would receive a Determination of No Hazard PRIES Office Building B July 2010 4 -4 Initial Study/Mitigated Negative Declaration ICF JBa OOe73.09 City of Newport Beach Chapter 4. Errata to the Draft IS/MND to Air Navi atg ion prior to the issuance of buildingpennits. Therefore, the proposed project would comply with Section 77.13 of the FAR and FAA reguirements. The proposed project would comply and be compatible with the land use standards established in the City's Municipal Code and the Airport Land use Commission's John Wayne AELUP (Airport Land Use Commission 2008). The AELUP vicinity height guidelines would protect public safety, health, and welfare by ensuring that aircraft could fly safely in the airspace around the airport. Although the proposed project is located within an airport land use plan, it would comply with all established standards, requirements, and plans. Therefore, impacts would be less than significant. IX. Hydrology and Water Quality, Pages 3 -39 to 3 -42 Discussion Would the project: a. Violate any water quality standards or waste discharge requirements? Less- than - Significant Impact with Mitigation Incorporated. Land within the City of Newport Beach is included in four watersheds: Newport Bay, Newport Coast, Talbert, and San Diego Creek (City of Newport Beach 2006a). Each of these watersheds is under the jurisdiction of the Santa Ana Regional Water Quality Control Board (SARWQCB) and subject to the objectives, water quality standards, and BMP requirements established in the Santa Ana River Basin Plan and Orange County Drainage Area Management Plan (DAMP). The project site is located in the San Diego Creek Watershed. San Diego Creek is the main tributary to Newport Bay, has a drainage area of 118 miles, and drains all or portions of the cities of Irvine, Laguna Woods, Lake Forest, portions of Newport Beach, Orange, and Tustin (City of Newport Beach 2003). The EPA and Santa Ana Regional Water Control Board have identified San Diego Creek as an impaired water body. Impairments are identified for nutrients, sediments and toxics (see Appendix B, Preliminary WQMP). The main tributary of the San PRES Office Building B July 2010 4.5 Initial Study /Mitigated Negative Declaration ICF J&S 00873.09 City of Newport Beach Chapter 4. Errata to the Draft IS /MND Diego Creek Watershed, San Diego Creek, drains directly into Upper Newport Bay (City of Newport Beach 2006b). The National Pollutant Discharge Elimination System (NPDES) stormwater program was established under the Clean Water Act (EPA 2010). It is a two - phased national program for addressing the non - agricultural sources of stormwater discharges that adversely affect the quality of receiving waters (EPA 2010). The program uses the NPDES permittine mechanism to require the implementation of controls designed to prevent harmful pollutants from being washed by stormwater runoff into local receiving waters (EPA 2010). Under the provisions of City of Newport Beach Municipal Code Chapter 14.36 (Water Quality), any discharge that would result in or contribute to degradation of water quality via stormwater runoff is prohibited. New development or redevelopment projects are required to comply with provisions set forth in the DAMP, including the implementation of appropriate BMPs identified in the DAMP, to control stormwater runoff so as to prevent any deterioration of water quality that would impair subsequent or competing beneficial uses of water (City of Newport Beach 2006a). The City is a co-Mrmittee for the NPDES Permit from the Santa Ana Regional Water Ouality Control Board (SARWOB). The City's permit regulates the amount of stormwater contaminants delivered into the City's waterways via the roads, gutters, storm drain systems, and other impervious surfaces. These impervious surfaces collectively are called municipal separate storm sewer system +++t<a 4+�(' ly'S wetcrwo-y+ The penmit� require= an aggressive water quality ordinance, specific municipal practices to maintain City facilities like the MS4, and use of BMPs in many residential, commercial, and development- related activities to further reduce the amount of contaminants in urban runoff (City of Newport Beach 2006b). Specifically. the City is required to do the following: • Control contaminants into storm drain systems. • Educate the public about stormwater impacts. • Detect and eliminate illicit discharges. • Control runoff from construction sites. • Implement BMPs and other site - specific runoff controls and treatments for new development and redevelopment. ■ Prevent pollution from municipal operations, including fixed facilities and field activities. ■ Inspect industrial and commercial sites for compliance with NPDES regulations (City of Newport Beach 2006b). Therefore. the City is responsible for regulating discharges into the MS4s during the construction and operation of projects. Two implementing tools regularly PRES Office Building B July 2010 4-6 Initial Study /Mitigated Negative Declaration icr: Jas 0067309 City of Newport Beach Chapter 4. Errata to the Draft IS /MND Water Quality Management Plan (WOMP). SWPPPs are not only required under the NPDES program but are required to comma with the General Construction Activity Stormwater Permit adopted by the SARWOCB. Construction activity resulting in a land disturbance of 1 acre or more, or less than 1 acre but part of a larger common plan of development or sale, must obtain the Construction Activities Storm Water General Permit (2009 - 0009 -DWQ Permit effective July 20 10) (State Water Resources Control Board 2010a). The Construction General Permit requires the development and implementation of a stormwater pollution prevention plan (SWPPP). The SWPPP must list BMPs that the discharger will use to protect storm water runoff and the placement of those BMPs. Additionally, the SWPPP must contain a visual monitoring program, a chemical monitoring program for "non- visible' pollutants to be implemented if there is a failure of BMPs, and a sediment monitoring plan if the site discharges directly to a water body listed on the 303(d) list for sediment (State Water Resources Control Board 2010b). The requirements of the SWPPP are based on the construction design specifications detailed in the final design plans of the proposed project and the hydrology and geology of the site expected to be encountered during construction. These final plans are reviewed and approved by the City prior to the issuance of arg ding permits This allows the City to review the plans and require appropriate additional requirements under the SWPPP prior to grading and in compliance with the City's NPDES Kermit (as described above). The proposed building footprint is approximately 4;8W 6 500 square feet; therefore, the amount of disturbed area during construction would be less than 1 acre and would not be part of a larger common plan of development or sale. Consequently, construction of the proposed project would not require the preparation or implementation of a formal SWPPP. However, since the project site is adjacent to a retarding basin, and is located in the San Diego Creek Watershed, which is impaired for sedimentation, Mitigation Measure WQ -1 is incorporated. Mitigation Measure WO -1 lists BMPs that could be included in the SWPPP but are not limited to those specific BMPs The SWPPP will ultimately list the final design project- specific BMPs the discharger will use to limit runoff and protect water quality during construction. All BMPs and other requirements in the SWPPP are enforced by City code inspectors, as required under the NPDES Permit described above. The SWPPP is specifically designed to avoid and/or minimize impacts on water quality. It is the standard practice to require SWPPPs and not specify the detailed BMPs until final design, as required by the General Construction Activity Stormwater Permit adopted by the SARWOCB. Furthermore the SWPPP and BMPs included in the SWPPP are proven as effective measures to avoid and/or minimize impacts to water quality through the standard practices of enforcement and use by the City and SARWOB. The preparation of a SWPPP would comply with the General Construction Activity Stormwater Permit and the NPDES program. Therefore. Mitigation Measure WO- I as described below would minimize the potential for construction activities to violate water quality standards or waste discharge requirements, and would reduce impacts to less- than- significant levels. PRIES Office Building 8 July 2010 4 -7 Initial Study /Mitigated Negative Declaration IOF AS WB73.09 City of Newport Beach Chapter 4. Errata to the Draft IS/MND The existing site consists of mostly impermeable surfaces. However, the proposed project would remove landscaped area, which would be replaced with surface parking and the proposed office building; therefore, slightly increasing the impermeable surface of the project site (see Appendix B for additional details). s The Preliminary WQMP (Appendix B) identifies additional BMPs to control the volume of stormwater generated and maintain water quality. The BMPs in the Preliminary WOMP include, but are not limited to: several nonstructural source control BMPs (e.g., activity restrictions, landscape management etc) several structural BMPs (e.g., stormdrain signaze, trash and waste storage etc) several site design BMPs (e.g., runoff volume reduction, etc.) and several treatment control BMPs (e.g., Filterra Roof Drain Planter) in order to maintain water quality. These various BMPs would control the pollutants of concern for the nr000sed project, which include: bacteria and viruses. heavv metals, pesticides. organic compounds, and sediment. These add aint BMPs are designed to retain and infiltrate stormwater to provide water quality benefits and reduce urban storm flow runoff during operation of the proposed project. PRIES Office Building B July 2010 Initial Study /Mitigated Negative Declaration 4-8 iCrAseoe7e.oa City of Newport Beach Chapter 4. Errata to the Draft IS/MND Currently. stormwater runoff generated by the project site (e g_ parking lot) and the surrounding tributary area (e.g remaining parking lot) are collected via sheet flow and discharged into an existing stormwater drain at the entrance of the parking lot adjacent to the parking ticket booth This is then discharged into the existing 48 inch stormwater drain and routed to the manhole and concrete weir the retarding basin. This existing stormwater infrastructure would remain the same under the proposed project Currently a portion of the existing landscaped area on the project site flows unrestricted into the retarding basin The protection of water quality is related to the land use generating the stormwater and to the volume stormwater flow generated under storm events A preliminary hydrology report was prepared to evaluate the change between the existing and proposed project conditions regarding stormwater capacity and the change in existing and proposed project conditions regarding water quality (see Appendix H) The preliminary hydrology report used criteria established by the County of Orange in the Technical Guidance Document for the Preparation of ConceptuaWreliminary and/or Project Water Quality Management Plans (2010) The County of Orange requires that new development perform a hydrologic_ conditions of concern (HCOC) assessment and incorporate BMPS to ensure any HCOCs created by the new development are mitigated (County of Orange 2010) An HCOC exists when the hydrologic regime of a site is altered or may be altered, and there is a potential for impacts on downstream channels alone or in coniunction with impacts of other projects (County of Orange 2010) The County of Orange technical document specifically defines HCOCs if the following conditions exist: • post development run off volume for the 2 -year. 24 -hour storm event exceeds that of pre - development conditions by more than 5 percent or • time of concentration' of post development runoff for the 2 -year, 24 hour storm event is less than the time of concentration of the pre - development condition by more than 5 percent (County of Orange 1010) If these conditions do not exist post- development then an HCOC does not exist and does not need to be considered further (County of Orange 2010) The 2 -. 10 -. and 100 -year storm event hydraulic calculations for the existing conditions and proposed project conditions were performed using software written per the Orange County Flood Control District Hydrology Manual 0986) The existing conditions (project site plus the surrounding parking lot) and the proposed project conditions (project site with proposed project plus the surrounding parking lot) are included in Table 3-6.12 below. As shown the difference between the two is negligible and the a h Flow under proposed proiect conditions is nearly identical to existing conditions See Drawing 1 of 2 I'I'i me of concentration is generally defined as the length of tinu it takes from stormwater runoff to Eras el from the highest Point on the project site to the lowest point Exisim tables hate not heen renumbered as pan (if Chant •r 4 Errata. If a new table is included in Chapter 4 it is numhcred to indicate the Table that would exrur helore it in Chapter i Th vrefore Tahle 3-6.1 would occur after Table 3.0 in Chapter 1. bm home Iah1e 1 -7. PRIES Office Building B July 2010 Initial Study /Mitigated Negative Declaration 49 ICF J$S 00673.09 City of Newport Beach Chapter 4. Errata to the Draft IS/tv1ND and Drawing 2 of 2 of Appendix H. which depict the existing and proposed project peak Flows on a project area may. Table 3 -6.1. Change between Existing and Proposed Flow Rates Existing Conditions Flow Rate Proposed Proiect Flow Rate Storm Event (Cubic Feet Per Second) (Cubic Feet Per Second) Difference 02 1.11 1.17 0.06 2.0S 2.14 0.09 0100 1.18 4, R 0.14 Westland Group 2010. Based on these flow rates, the proposed Vr iect would ,generate approximately 79 cubic feet of additional stormwater runoff during a 2 -year storm event, when compared to existing conditions (Appendix H). Appendix H calculates the change in the time of concentration between the pre- and post - development under 2-year and l0 -year storm event conditions by dividing the pre- development time of concentration by the difference between the time of concentration pre- and post- development. A 2 -year storm event has a difference in the time of concentration of 1.76 percent and a 10 -year storm event has a difference in the time of concentration of 1.03 percent between pre- and post- development. Since both of these are less than 5 percent, an HCOC would not result as part of the proposed project per the County of Orange Technical Guidance Document discussed above. Similarly, the storm volume difference before and after development for 2 -year and I0 -year frequencies is less than 2 percent. Therefore, the proposed project meets the County of Orange criteria for control of stormwater runoff, and an HCOC would not occur. However, the Final WOMP will include a BMP such as the Cultec Model PAC 150 to reduce the peak flow ,generated durin ag 100 -year storm event. This type of BMP could store 24.91 cubic feet of stormwater and would prevent stormwater generated by the proposed project from overflowing the existing weir wall. Furthermore, since the cubic feet generated by the 2 -year and 10 -year storm events are less than the cubic feet of stormwater generated by the 100 -year storm event, volumes generated by those smaller storm events would not create an HCOC and would be contained by the BMP. Filterra Bioretention Systems are proposed for this site and are included in the Preliminary WOMP and would be included in the Final WOMP methods to maintain existing water ater quality. Specifically, there would be two locations for the Filterra systems: one at the northeast side of the building to maintain rooftop stonnwater runoff water quality (Filtera roof drain) and one in the parkin lot of at the southwest comer of the building to maintain parking lot water quality (Filtera catch basin). The Filtera Bioretention System is a City of Newton Beach accepted and approved BMP to maintain water quality. It is also Technology Assessment Protocol for Ecology (TAPE) and Technology Acceptance Reciprocity Partnership (TARP) approved. As discussed in Appendix B, the Filtera Bioretention System utilizes physical, chemical, and biological mechanisms of soil, plant, and microbe complex to remove pollutants typically PRES Office Building B July 2010 4-10 Initial Study /MNgeted Negative Declaration ICF AS 00873.09 City of Newport Beach Chapter 4. Errata to the Draft IS /rdND found in urban stotmwater runoff (e.g bacteria and viruses heavy metals pesticides. organic compounds, and sediments) Appendix H includes a letter of confirmation from the manufacturer of the Filtera Bioretention System that the Flows and cubic feet of stormwater generated by the proposed project and cited above would be fully contained by two Filtera Bioretention Systems of 6.5 feet by 4 feet for the roof drain and 6.5 feet by 4 feet for the parking lot Therefore the entire stormwater volume and flow generated by the rp oposed project site would be fully treated by the Filtera Bioretention System prior to discharge into the existing stormwater system of the City of Newport Beach The Filtera Bioretention System would be sized appropriately to deal with the flows generated by the proposed project site and would treat the runoff of the site Therefore, operation of the proposed project would comply with City of Newport Beach Municipal Code 14.36 (Water Quality) and provisions set forth in the City's NPDES MS4 Permit and the Orange County DAMP by preparing the Final WQMP. The Final WQMP, which is required for approval as part of the issuance of building and grading permits. will demonstrate that the BMPs discussed above and in Appendix B and Appendix H will control stormwater runoff and maintain water quality. Therefore, operational impacts would be less than significant. c. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner that would result in substantial erosion or siltation on site or off site? Less- than - Significant Impact, The existing project area is in the San Diego Creek Watershed. The existing landscaped areas surrounding and located on the project site drain predominately into the retarding basin to the northwest of the project site (TGR Geotechnical, Inc. 2008) (Appendix B). The existing parking areas drain via sheet flow to concrete ribbon gutter within the existing parking lot. Stormwater generally travels westerly along the gutter and is discharged into an existing catchment basin in the southwest comer located in the main entrance into the project site, along the west side of the site (Appendix B). No streams or rivers are currently located on or around the project site and the proposed project would not directly affect the flow of a river or stream. The proposed project would involve some grading and minor soil disturbance during construction. These activities would minimally alter the existing drainage pattern of the site and would comply with the DAMP (described above in Section IX(a), Hydrology and Water Quality). Once operational, the proposed project would not substantially increase the impervious area on the project site as the existing site is already largely paved with surface parking. Furthermore, operation of the proposed project would not significantly increase the amount of exposed soil thereby contributing to siltation or erosion. The Preliminary WQMP (Appendix B) provides BMPs such as pevereret deleill landscape detention, efficient irrigation, runoff- minimizing landscaping, and a roof drainage planter to control the volume and quality of runoff generated by the slight increase in impervious surface on site. As described in the Preliminary WQMP (Appendix B) and the Preliminary PRIES Office Building B July 2010 Initial Study/M iligated Negative Declaration 4-11 ICF J&S 00873.09 City of Newport Beach Chapter 4. Errata to the Draft IS MIND Hydrology Report (Appendix H), flow would continue to drain in a westerly direction into the existing catchment basin. Therefore, the operation of the project site as an office building would not result in a substantial change to the existing drainage. Impacts associated with erosion during operation and construction, either on site or off site would be less than significant. d. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner that would result in flooding on site or off site? Less- than - Significant Impact with Mitigation Incorporated No streams or ri vers are located on site, and therefore, construction and operation of the proposed project would not directly affect the flow of a river or stream. Substantial amounts of stormwater are not readily absorbed into the soil because of the urban character of the area and the existing use of the project site +±(84 surface parking spaces). During construction, runoff quantities and velocity from the project site would be minimized through implementation of Mitigation Measure WQ -1. As discussed above in Section IX(a) and (c), operation of the proposed project would not substantially alter the existing drainage pattern of the site and would not substantially increase the impervious area on the project site. As discussed above in Section IX(a) and (c), BMPs would be used to improve treatment and storage capacity for the proposed project, which is an improvement over the existing site conditions. Any changes in hydrology are designed to retain and infiltrate stormwater to provide water quality benefits and reduce urban storm flow runoff, providing partial flood relief to receiving waters. Furthermore, peak flows are generally the same under the existing conditions as the proposed Project conditions. The proposed project would not substantially alter the existing drainage pattern of the project site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner that would result in flooding on site or off site. Impacts would be less than significant with mitigation incorporated. A Create or contribute runoff water that would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? Less - than - Significant Impact with Mitigation Incorporated. Overall, urban street flooding is rarely considered a problem in the City of Newport Beach (City of Newport Beach 2003). As described above in Section IX(d), the urban character of the area and the existing use of the project site as 84 stalls of surface parking would not allow stormwater to be readily absorbed into the soil. The proposed project would not substantially alter the existing drainage pattern of the site and would not substantially increase the impervious area as discussed in Section IX(a), (c), and (d) above. PRES Office Building B July 2010 4 -12 Initial Study /Mitigated Negative Declaration ICF JyS 00873.09 City of Newport Beach Chapte(4. Errata to the Draft IS /MND The Koll Center Newport retarding basin is located adjacent to the project site. Koll Center Newport Planned Community maintains the retarding basin (Tong pers. comm. a). The purpose of the retarding basin is to reduce the flow rate within the respective downstream storm drain systems so that older, possibly undersized downstream facilities will be able to carry the discharge from new development areas upstream (City of Newport Beach 2000). The existing stormwater infrastructure is designed to first discharge volumes into the existing stormwater drain in Von Karman Avenue generated by low -flow storm events and then discharge volumes into the retarding basin generated by high -flow storm events. Stormwater volumes are conveyed via a subterranean 48 inch stormdrain, which transverses the existing parking lot of the PRES building in a northerly direction, to an existing subterranean manhole approximately 14 feet from the edge of the retarding basin (see Figure 2 -5 of Chapter 2 of the Draft IS/MND and Appendix H). There is a concrete weir wall inside the manhole. The weir wall regulates the volume of stormwater that is generated by the surrounding tributary area of the Koll Center and enters the retarding basin. The existing stormwater infrastructure is designed so that flows from lower frequency storms with lower runoff volumes, such as 2 -year and 10 -year storm events, are deflected by the weir wall and forced to flow in a northwesterly direction toward the City's public system in Von Kanman Avenue. Stormwater volumes generated from upstream and the surrounding Koll Center that would overtop the weir wall and enter the retarding basin would come from large storm events (e.g., 100 -year storm events). As discussed in Section Mal, the difference between the existing flow rate and the proposed project flow rate is negl- ipible, and the peak flow under proposed project conditions is nearly identical to existing conditions. Therefore, as discussed above, an HCOC would not result as part of the proposed project Der the County of Orange Technical Guidance Document. Similarly, the storm volume difference before and after development for 2 -year and 10 -year storm frequencies is less than 2 percent. Therefore, the proposed project meets the County of Orange criteria established in the technical guidance document for control of stormwater runoff, and an HCOC would not occur. However, the Final WOMP will include a BMP such as the Cultec Model PAC 150 to reduce the peak flow generated during 100 -year storm event. This type of BMP could store 24.91 cubic feet of stormwater and would prevent stormwater generated by the proposed project from overflowing the existing weir wall. Furthermore, since the cubic feet generated by the 2 -year and 10-year storm events are less than the cubic feet of stormwater generated by the 100 -year storm event, volumes generated by those smaller storm events would not create an HCOC and would he contained by the BMP. Thus, the prooect design would not funnel water into the retarding basin: all flows from the proposed project would flow toward the existing parking lot and would be contained by t� he capacity of the existing stormwater infrastructure. The proposed project would comply with the policies outlined in the General Plan to minimize runoff- related flooding impacts. These policies include NR 3.1 1, NR 3.20 and NR 4.4 and implementation would reduce the volume of PRES Office Building B July 2010 4 -13 Initial Study /Mitigated Negative Declaration ICF AS 00973.09 City of Newport Beach Chapter 4. Errata to the Draft IS /MND runoff generated and potential for flooding. The Preliminary WQMP (Appendix B) for the proposed project discusses operational BMPs, inspection and maintenance of catch basins, and design of drainage facilities to minimize adverse effects on water quality. Stormwater drainage flows from the proposed project would be accommodated by the camvity of the exi.tinL catchment basin (Tong. pers. comm. b). Furthers . _ ,:_ _ _ 1 \(a). Filterra Bioretention Systems are proposed (or this site and are included in the Preliminary WOMP and would be included in the Final WOMP as a method to maintain existing water ater quality. Appendix H includes a letter of confirmation from the manufacturer of the Filtera Bioretention System that the flows and cubic feet of stormwater generated by the proposed project and cited above would be fully contained by two Filtera Bioretention Systems of 6.5 feet by 4 feet for the roof drain and 6.5 feet by 4 feet for the parking lot. Therefore, the entire stornwater volume and flow generated by the proposed project site would be fully treated by the Filtera Bioretention System prior to discharge into the existing stormwater system of the City of Newport Beach. The Filtera Bioretention System would be sized appropriately to deal with the flows generated by the proposed project site and would treat the runoff of the site. The PF@'i.:,;;,ar? Final WQMP would be reviewed and approved by the City prior to the issuance of grading permits. At that time it would be finalized and would demonstrate that the BMPs discussed in the Preliminary WQMP and the Preliminary Hydrology Report will control stormwater runoff and maintain water quality. Furthermore, with the incorporation of Mitigation Measure WQ-1, the proposed project would not provide substantial additional sources of polluted runoff during construction. Increased runoff would not exceed the capacity of existing storm drain systems or generate polluted runoff. Therefore, impacts on stormwater would be less than significant with mitigation incorporated. XII. Noise, Page 3 -53 e. For a project located within an airport land use land use plan or, where such a plan has not been adopted, within 2 miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? Less- than - Significant Impact. The project site is located approximately 0.5 mile from John Wayne Airport. Figure N2 of the City of Newport Beach General Plan shows the existing 65 dBA CNEL noise contour for John Wayne Airport. Figure N2 shows that the project site is located approximately 0.25 to 0.5 mile outside the 65 dBA CNEL noise contour for John Wayne Airport (City of Newport Beach 2006a). Figure N2. "Existing Noise Contours." of the City of Newport Beach General Plan shows that the proMsed project is located within the 60 CNEL noise contour of the AELUP Noise Contours. Per Table I. "Airport Land Use Commission for Orange County Airport Environs Land Use Plan Limitations on Land Use Due to Noise (Applicable to Aircraft Noise Sources)." of the AELUP, commercial land use categories such as retail and office, which experience a CNEL of less than 65 dB, are considered "normally consistent." Furthermore. PRIES Office Building B July 2010 4 -14 Initial Study /Mitigated Negative Declaration ICFJ8ao0e70.09 City of Newport Beech Chapter 4. Errata to the Draft IS/MND normally consistent land uses, such as office land uses within the 60 dB contour, are allowed to use conventional construction method~ and no special noise reduction requirements are needed. The AELUP identifies noise impacts zones and recommends measures to reduce aircraft noise on certain land uses. A Moderate Noise Impact is identified as 60 dB CNEL or greater, but less than 65 dB CNEL and is included in Noise Impact Zone ­2" of the AELUP. The AELUP sMifiically identifies residential land units in this zone and requires sound attenuation as set forth in the California Code of Insulation Standards, Title 25, California Code of Regulations for residential units. The AELUP text does not identify commercial retail or office land uses as reouiring sound attenuation. Since the roposed project does not include residential unit. and is within the 60 dB CNEL contour, it is normally consistent with the aip, i and is not requii i it, provide sound attenuation Therefore, noise impacts related to air traffic would be less than significant. XIV. Public Services, Pages 3 -56 to 3 -57 Discussion Would the project result in substantial adverse physical impacts associated with: a/. Fire protection? Less- than - Significant Impact. As discussed in Section XIII. "Population and Housing." employees that would work at the site would likely reside in the Orange County area. Because the tvW of business would be related to real estate services, unique qualifications are generally not required and would not result in the need to recruit people from out of the state or the region Therefore the proposed project would not result in growth- inducing effects because the population of Newport Beach or Orange County would not increase and there would be no additional demand for fire protection and emergency medical services. Implementation of the proposed project could potentially contribute additional demand for fire protection and emergency medical services, including possible additional demand on and use of fire equipment and medical supplies at the project site. 5_ r 4011i !he PFOP&Le The project site is located in the City of Newport Beach Fire Department service area. There are eight fire stations strategically located throughout the City so that a fire unit can respond to residents and businesses in less than 5 minutes. The City of Newport Beach Fire Department is considered an all-risk Fire Department and provides services for all types of emergencies (City of Newport Beach 20096). The project site is served by the nearest fire station, Santa Ana Heights Fire Station #7, which is located at 20401 Southwest PRIES Office Building B Juty To f o Initial Study/Mitigated Negative Declaration 4.15 ICP J&S ODS73.e9 City of Newport Beach Chapter 4. Errata to the Draft IS/MND Acacia Street at the intersection of Southwest Acacia Street and Mesa Drive, approximately 1.9 miles to the southwest of the project site. The Fire Department reviewed the proposed proiect's site plans and project description on March 26 and June 2, 2010. The Fire Department reviewed the proposed rroiect for consistency with the California Fire Code, including the size and location of the building, occupancy safety, fire hydrant necessity, and fire truck and emergency access. Therefore, Tlhe proposed project would include all necessary fire protection devices, including fire sprinklers, and would be required to comply with all Building and Fire Codes adopted by the City, including compliance with applicable water pressure and fire equipment regulations. Emergency vehicle access for the proposed project would be provided to the project site from Von Karman Avenue. —The proposed project would be within the current capacity of the Newport Beach Fire Department and would not create the need for any new facilities or personnel (Bunting pers. comm.). Impacts would be less than significant. a2. Police protection? Less - than - Significant Impact. As discussed above and in Section XIII, - Population and Housing:' employees that would work at the site would likely reside in the Orange County area: therefore, the project would not result in growth - inducing effects because the population of Newport Beach or Orange County would not increase, and there would be no additional demand for police protection services within the City of Newport Beach. The Newport Beach Police Department would provide police protection services for the proposed project. The Police Department is located at 870 Santa Barbara Drive, at the intersection of Jamboree Road and Santa Barbara, approximately 3.5 miles from the project site. The project site is located in Newport Beach Police Department Area 2 (Newport Beach Police Department 2010). The Newport Beach Police Department confirmed that, if constructed, the proposed project would not change their current operating practices (Hartford pars. comm.). Furthermore, based on the personal communication correspondence, even if employees came from other cities in Orange County, the police department would be able to accommodate the increase in professional office employees. A- disewsed Depoome t. Additionally, the department is currently patrolling the project site and surrounding areas. Therefore the proposed project would not require new or additional police facilities. Impacts would be less than significant. XVI. Transportation and Traffic, Pages 3 -59 to 3 -63, a. Conflict with an applicable plan, ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non - motorized PRIES Office Building B July 2010 4 -16 Initial Study /Mitigated Negative Declaration ICF Jas 00673,09 City of Newport Beach Chapter 4. Errata to the Draft IS /MND travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? In 2009 as part of the Draft Environmental Impact Report for the City Hall and Park Development Plan, existing conditions of roads and intersections around the project site were determined (LSA 2009). They are described in Appendix E. As described in Chapter 2. "Project Description," of the Draft 1S/MND, the construction staging area would be located along the southwest property line employees and visitors to these offices could use the other access road off Von Karmen Avenue. Furthermore, since construction would last approximately 8 months employees and visitors to these offices would use the other access road off Von Karmen Avenue during construction time, after which normal access would be restored. Therefore, impacts associated with circulation due to construction staging would be less than significant. During construction, the maximum daily trips would depend on the number of truck trips received in a day and the number of employees at the construction site. Furthermore, no more than 15 construction workers would be at the construction site at one time. Table 3 -12 below provides the estimated daily roundtrip truck trips and number of construction employees associated with each phase of construction. Table 3 -12. Estimated Truck Trips and Construction Employees Construction Phase Construction Activity Duration Worker Per (Days)' Day Construction Worker Roundtrips Per Day Roundtrip Truck Trips Per Phase Roundtrip Truck Trips per Day ° Total Trips Per Dap Demolition 6 6 12 20 3 15 Grading 24 6 12 40 2 14 Construction, 168 15 30 12` 2 12 asphalting, and architectural finishine ' Phase duration assumes a six -day construction work week. a There is overlap between the construction of the proposed project, asphalting. and architectural finishing. Twelve roundtrip truck trips would only occur during a 1 week (5 day) period of asphalting. a Numbers are rounded to nearest whole number. b. Conflict with an applicable congestion management program, including, but not /united to level of service standard and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways? PRES Office Building B July 2010 417 Initial Study /Mitigated Negative Declaration ICF J35 07e73.09 City of Newport Beach Chapter 4. Errata to the Draft IS/MND Less- than - Significant Impact. Within the defined Orange County Congestion Management Program highway network, intersections and freeway segments are not allowed to deteriorate to a condition worse than LOS E, or the base year LOS if it is worse than E (Orange County Transportation Authority 2007 and 2W920P). The following intersections are Congestion Management Program intersections within the vicinity of the proposed project: MacArthur Boulevard/Jamboree Road, 1-405 northbound ramps/Jamboree Road, and 1405 southbound ramps /Jamboree Road. Table 3 -14 below summarizes the 20073 AM and PM peak hour LOS for these Congestion Management Program intersections. Table 3 -14. Peak Hour Level of Service for Congestion Management Program Intersections' Intersection 20073 .AM Peak Hour LOS 20073 PM Peak Hour LOS MacArthur Boulevard/Jamboree Road C D h I -405 northbound ramps/Jamboree Road C C I405 southbound ramps/Jamboree Road. D C43 He= 5 naee 2 of 3 "Orange County Congestion Management flrogtam Level of Service 2009" in the Orange County 2009 Cana ion Manu cincin Proenml (Orarlg' County Tmn mrui ion Authority 2009) d m not identify a deterioration of LDS at my of the in erscytion� ow Two of the intersections (1-405 northbound ramps/Jamboree Road and 1405 southbound ramps/Jamboree Road) are not within the jurisdiction of the City of Newport Beach, as they are located in the City of Irvine. All intersections in Table 3 -14 are operating at LOSS D or better. The 19 AM peak hour trips and any one time. Therefore, the addition of the proposed project's 19 AM peak hour trios and 18 PM peak hour trips would not downgrade the existing LOS at the intersections described above to LOS DE or worse per the CMP LOS requirements. ie% On Bea h The proposed project was included in the cumulative projects list of the traffic study for the City Hall Draft Environmental Impact Report for the City Hall and Park Development Plan, which included other cumulative projects located within the City of Newport Beach and the City of Irvine (LSA 2009). Table 17 of the City Hall DEIR summarizes the cumulative analysis and identifies there would be no significant impacts at any of the studied intersections, which include the intersections identified above, in 2013 (LSA 2009). Furthermore, for all intersections shared by the City of Irvine and the City of Newport Beach a LOS of E is acceptable during AM and PM peak periods. Table 22 of the DEIR indicates the MacArthur Boulevard/Jamboree Road intersection would continue PRES Office Building B July 2010 4.18 Initial Study/Mitigated Negative Declaration ICF AS 00973.09 City of Newport Beach Chapter 4. Errata to the Draft IS/MND to operate at an acceptable level of service (LSA 2009). Finally, the Orange County Congestion Management Program (2007) Appendix B -2 identifies specific criteria for which projects are exempt. Any development applications generating vehicular trips below the ADT threshold for CMP traffic analysis include any project generating less than 2,400 ADT total, or any project generating less than 1,600 ADT directly onto the CMP Highway System. The proposed project would generate approximately 132 trips per day, and thus would be below the criteria established by the Congestion Management Program. Therefore, the proposed project would not exceed, either individually or cumulatively, a LOS standard and impacts would be less than significant. c. Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? Less - Than - Significant Impact. As described in Section VIII(e) Hazards and Hazardous Materials, the project site is located within the boundaries of the AELUP for John Wayne Airport. The proposed project would be within the height restriction zone for the John Wayne Airport and the notification area of the FAR Part 77 Imaginary Surfaces aeronautical obstruction area. The proposed project includes constructing one three -level office building with a maximum height of 50 feet. The project site is approximately 492 feet above mean sea level _ . Therefore. the proposed project would exceed the notice criteria for 77 13(a)(2) by approximately 4 feet (Federal Aviation Administration 2010) Projects that meet the height restriction threshold must comply with federal and state procedures including filing a Notice of Proposed Construction or Alteration (Federal Aviation Form 7460 -I) Therefore. the City of NewWn Beach would file a notice of Proposed Construction or Alteration with FAA (FAA Form 7460 -1) in accordance with Federal Aviation Regulation (FAR) Part 77 The FAA would then perform an aeronautical study to determine if the project is considered an obstruction and if the project is determined to be a hazard to air navigation ( Airoort Land Use Commission 2008). Following FAA's aeronautical study of the project site the proposed project would comply with conditions of approval imposed or recommended by FAA. The City would receive a Determination of No Hazard to Air Navigation prior to the issuance of building permits Therefore the proposed project would comply with Section 77.13 of the FAR and FAA reguirements. Thff.efarr. iThe proposed project would not result in a change of air traffic patterns including either an increase in traffic levels or a change in location that would result in substantial safety risks. Impacts would be less than significant. PRIES Office Building B July 2010 Initial Study /Mitigated Negative Declaration 4-19 ICF AS 00873.09 City of Newport Beach Chapter 4. Errata to the Draft IS/MND Chapter 4. References County of Orange 2004. General Plan County of Orange. 2010. Exhibit 7.111 Technical Guidance Document for the Preparation of ConceptuaUPreliminary and/or Project Water Quality Management Plans (WOMPs) Submitted to the Santa Ana Regional Water (Duality Control Board May 24. Available at: http://www.ocwatersheds.conVDocumentsfrechnicaIGuidance.pdf. Accessed on: July 27, 2010. Environmental Protection Agency (EPA) 2010 National Pollutant Discharge Elimination System (NPDES) Frequently Asked Questions Available: <http• / /cfpub epa ov /npdes /fa"s efm> Accessed: June I8 2010 Federal Aviation Administration. 20 10. Notice Criteria Tool Available: < https:// oeaaa. faa. gov /oea"extemal/gisTools/gisAction jsp ?action =doNoN oticeReauiredTool &latD= 33 &IatM= 39 &latS=48 78 &latDir– N &IongD =1 17 &Ion gM=5 1 &Ion S =39.17 &Ion ir=W &datum= NAD83 &siteElevation =49 &structureHei ght= 50 &traversewav= NO &onAirport= false &submit =Submit> . Accessed: August 5. 2010. Heariford. Bill Lt Support Services Division of the City of Newport Beach Police Department. June 16, 2010 —Email Orange County Flood Control Division 1986 Orange County Hydrology Manual. Available at: < http: / /www.ocflood.com/DocumentVof /OC Hydrology Manual pdf> Accessed on: July 27, 2010. Orange County Transportation Authority. 2007 Orange County Congestion Management Pro- am Orange County Transportation Authority. 2009 Orange County Conizestion Management Program. Available ac < http://www.octa.net/pdf/cmpQ9.0 Accessed on: July 27. 2010. PRES Office Building B July 2010 4 -20 Initial Study /Mitigated Negative Declaration ICF AS OD573.09 REVISED B -6 -10 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING ADOPTION OF A MITIGATED NEGATIVE DECLARATION, APPROVAL OF GENERAL PLAN AMENDMENT NO. GP2007 -009, APPROVAL OF PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2007 -006, APPROVAL OF TENTATIVE PARCEL MAP NO. NP2010 -005, AND APPROVAL OF EXCEPTIONS TO THE PLANNED COMMUNITY GENERAL DEVELOPMENT STANDARDS FOR A NEW COMMERCIAL OFFICE BUILDING LOCATED 4300 VON KARMAN AVENUE (PA2007 -213) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Professional Real Estate Services, Inc. (PRES), with respect to property located at 4300 Von Karman Avenue, and legally described as Parcel 1 of Parcel Map, as per map filed in Book 60, Page 14 of Parcel Maps, in the Office of the Orange County Recorder, requesting approval of: 1) a General Plan Amendment to increase the maximum allowable development limit 'or Anomaly Location #2 of the Land Use Element by 11,544 gross square feet, 2) an amendment to the Koll Center Newport (PC -15) Planned Community text to allow an increase to the Allowable Building Area for Professional & Business Office Site B by 9,917 net square feet, 3) approval of a tentative parcel map to subdivide the existing 55.779- square -foot parcel of land into two separate parcels, and an exception to the Koll Center Newport Planned Community General Development standards which require a minimum site of area of not less than 30,000 square feet, and to lower the parking requirement of one space for each 225 net square feet to one space for each 250 net square feet. 2. The applicant proposes to develop a new 11,960- gross- square -foot .:ummercial office building. 3. The subject property is located within the Koll Center Newport (PC -15) Planned Community Zoning District and the General Plan Land Use Element category is Mixed - Use Horizontal 2 (MU -1-12). 4. The subject pioperty is not located within the coastal zone. 5. A public hearing was held by the Planning Commission on August 5, 2010, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Paqe 2 of 13 Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Page 3 of 13 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. 2. The draft Mitigated Negative Declaration was circulated for a 20 -day public comment period beginning on May 19, 2010, and ending on June 7, 2010. The contents of the environmental document and comments on the document were considered by the Planning Commission in its review of the proposed project. 3. On the basis of the entire environmental review record, the proposed project, with mitigation measures, will have a less than significant impact upon the environment and there are no known substantial adverse affects on human beings that would be caused. Additionally, there are no long -term environmental goals that would be compromised by the project, nor cumulative impacts anticipated in connection with the project. The mitigation measures identified and incorporated in the Mitigation Monitoring and Reporting Program are feasible and will reduce the potential environmental impacts to a less than significant level. 4. The Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program attached as Exhibit "A" is hereby recommended for adoption by the City Council. The document and all material, which constitute the record upon which this decision for recommendation was based, are on file with the Planning Department, City Hall, 3300 Newport Boulevard, Newport Beach, California. 5. The Planning Commission finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS. 1. The project site is located in the Statistical Area L4 (Airport Area) of the Land Use Element of the General Plan, and is identified as Anomaly Location #2. The General Plan Land Use Element designates the project site as Mixed -Use Horizontal 2 ( "MU- H2"). The MU -H2 designation provides for a horizontal intermixing of uses that may include regional commercial office, multifamily residential, vertical mixed -use buildings, industrial, hotel rooms, and ancillary neighborhood commercial uses. The proposed new commercial business plazaoffice building is consistent with this designation. Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Page 4 of 13 2. General Plan Policy LU 3.2 encourages the enhancement of existing neighborhoods, districts, and corridors, by allowing for re -use and infill with uses that are complementary in type, form, scale, and character. The policy states that changes in use and /or density /intensity should be considered only in those areas that are economically underperforming, are necessary to accommodate Newport Beach's share of projected regional population growth, improve the relationship and reduce commuting distance between home and jobs, or enhance the values that distinguish Newport Beach as a special place to live for its residents. The scale of growth and new development shall be coordinated with the provision of adequate infrastructure and public services, including standards for acceptable traffic level of service. The PFOposed 4 Plan amendment to increase --the --ma*i - bwable development -wit in Anomaly- kocatien- k24fom- 1;960,146- gross - square feet to 4, 071.699 gross square feet y LU- 3-2-as 4o4ows: The proposed General Plan amendment to increase the maximum allowable development limit by 11,544 gross square feet restricted to office use only, as depicted in Exhibit "B" and Exhibit "C attached hereto and incorporated by reference, is consistent with General Plan Policy LU3.2 as follows • The increased development limit would allow for development and infill with a new commercial office building that is complementary in type, form, scale and character, and consistent with the existing development pattern in the area. • The proposed project would be served by adequate infrastructure and public services, and the proposed increase in development limits would not exceed existing service levels for public services or utilities. • As described in the analysis included in the Transportation and Traffic Section of the MND (Pages 3 -59 through 3 -65, and in the Errata, Pages 4 -16 through 4 -18), the proposed project is expected to generate a total of 132 ADT (average daily trips) per day, and a total of 19 a.m. peak hour trips and 18 p.m. peak hour trips. These assumptions are based on criteria from the Institute of Transportation Engineers Trip Generation, 8th Edition. Per the Circulation Element of the General Plan, a Level of Service (LOS) E is considered acceptable at intersections in the John Wayne Airport Area shared with the City of Irvine. The addition of 19 a.m. peak hour trips and 18 p.m. peak hour trips is not anticipated to worsen the LOS at these shared intersections with implementation of the proposed project. Thus, operation of the proposed project would not impact the standards for acceptable traffic LOS in this area. 3. General Plan Policy LU 6.15.1 provides for the development of distinct business park, commercial, and airport- serving districts and residential neighborhoods that are integrated to ensure a quality environment and compatible land uses. The proposed General Plan amendment to increase the maximum allowable development limit is consistent with this policy as follows: Planning Commission Resolution No. PRIES Office Building B (PA2007 -213) Page 5 of 13 • The proposed project would provide for development of the site with a new commercial office building, integrated to ensure a quality environment that is compatible with the existing surrounding land uses in the Koll Center Newport Planned Community. 4. Charter Section 423 requires that all proposed General Plan Amendments be reviewed to determine if the square footage (for non - residential projects), peak hour vehicle trip, or dwelling units thresholds would be exceeded as the means to determine whether a vote by the electorate would be required to approve the General Plan Amendment. Pursuant to Council Policy A -18, voter approval is not required as the proposed General Plan Amendment, with the increased development limit of 11,544 gross square feet restricted to office use only. does not exceed the non- residential floor area threshold, does not exceed the peak hour vehicle trips threshold, and does not create any new dwelling units. 5. The General Plan includes several goals and policies emphasizing high quality redevelopment and new development of sites, utilizing adequate standards for site and building design, parking and undergrounding of utilities, landscaping, and signage control. The Koll Center Newport Planned Community Development Standards provides the regulations to implement these various goals and policies. 6. The amendment to the Koll Center Newport Planned Community text to increase the allowable building area for Office Site B from 967,803 net square feet to 977,720 net square feet, with the granting of exceptions to the minimum site area of not less than 30,000 square feet, and a change the off - street parking requirements of one space for each 225 square feet to one space for each 250 square feet would meet the intent of the Koll Center Newport Planned Community Development Considerations. As described below, the development standards would be substantially met, and the project as proposed would not be detrimental to the surrounding office developments. 7. The granting of the exception to subdivide the existing 55,779- square -foot parcel of land into two separate parcels, comprised of approximately 32,395 square feet, and approximately 23,383 square feet can be made subject to the facts in support of following findings: A. Finding: That the granting of the exception will not be detrimental to the public welfare or injurious to other property in the vicinity. A.1 Facts in Support of Finding: The granting of the exception to the minimum lot size would not be detrimental to the public welfare or injurious to other property in the vicinity because: Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 6 of 13 ® The area in which the project site is located is fully developed and bounded on the north by common areas comprised of landscaping and a large water feature (referred to as a retarding basin in the MND). m The proposed development would be located within the building envelope of the project site, would meet the setback requirements, and would not exceed the maximum height requirements. ® The proposed lot size of 23,383 square feet is similar to or larger than other lots in the vicinity of the project site (4320 Von Karman: approximately 12,294 square feet; 4220 Von Karman: 23,065 square feet; and 4040 MacArthur Blvd.: 25,847 square feet). B. Finding: That the Development Considerations and intent of this Planned Community Development Standards are substantially met. B.1 Facts in Support of Finding: The Development Considerations are provided on page 2 of the Koll Center Newport Planned Community text, and includes a provision that a precise development plan be submitted to the Planning Director for review in order to insure development consistent with the master plan concept of the Koll Center. The precise plan shall be reviewed prior to the issuance of any building permit to show conformance with the requirements of the planned community text. The plan review material shall include: 1. Building Criteria: a) size, b) location, c) height, and d) materials 2. Parking Criteria: a) areas, including drives and accesses, b) quantity, and c) size 3. Landscaped Areas: a) setbacks, b) walls, c) plazas, and d) pools, fountains and /or other amenities 4. Signing Criteria: a) location, b) size, and c) quantity 5. All other site improvements as directed by the Planning Director Detail plans have been submitted for informational purposes, and include of the above required items, with the exception of signage plans which would be required for review prior to the issuance of any building or sign permit. B.2. Facts in Support of Finding: Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 7 of 13 If the amendment to the General Plan and planned community text is approved to allow an increase in the development limits, and the exception to the minimum site area and parking requirements were granted, the intent of the development standards would be substantially met because: e A commercial office building is a permitted use in Office Site B. The proposed development would be located within the building envelope of the site. ® The proposed building would meet the required setback, building height and landscape requirements. o The proposed project would be incorporated into the overall development pattern of the Koll Center, a master planned campus office park complex. 8. The granting of the exception to the Koll Center Planned Community General Parking Requirement standards to lower the parking requirement of one space for each 225 net square feet to one space for each 250 net square feet can be made because this parking ratio is consistent with Chapter 20.66 of the NBMC, and adequate off - street parking to accommodate all parking needs for the project site will be provided. 9. A tentative parcel map tentative parcel map to subdivide the existing 55,779- square- foot parcel of land into two separate parcels in order to accommodate development of the new office building has been prepared in accordance with Title 19 of the Newport Beach Municipal Code (NBMC). The Planning Commission determined in this case that the proposed parcel map is consistent with the legislative intent of Title 20 of the NBMC, and the following findings per Section 19.12.070, and facts in support of such findings are set forth: A. Finding: That the proposed map and the design or improvements of the subdivision are consistent with the General Plan and any applicable specific plan, and with applicable provisions of the Subdivision Map Act and this Subdivision Code. Facts in Support of Finding: A -1. The purpose of the proposed parcel map to subdivide the existing 55,779 - square -foot parcel of land into two separate parcels. As part of the proposed project, the applicant requests approval of a General Plan amendment to increase the maximum allowable development limit on the subject property to allow development of new office building on one of the two parcels. If the General Plan amendment is approved, the proposed subdivision and improvements of the subdivision would be consistent with the General Plan and the MU -H2 land use designation. Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Page 8 of 13 B. Finding: That the site is physically suitable for the type and density of development. Facts in Support of Finding: B -1. The proposed subdivision would create two lots which would be physically suitable to accommodate the proposed development of a new office building, and the lots have a slope of less than 20 percent, which is suitable for development. B -2. As part of the proposed project, the applicant requests approval of a General Plan amendment and an amendment to the Koll Center Newport Planned Community text to increase the maximum allowable development limit on the subject property. If the General Plan amendment and planned community text amendment are approved, the project site would be physically suitable for the amount of entitlement (or intensity) proposed for development of the site. C. Finding: That the design of the subdivision or the proposed improvements will not cause substantial environmental damage nor substantially and avoidably injure fish or wildlife or their habitat. However, notwithstanding the foregoing, the decision - making body may nevertheless approve such a subdivision if an environmental impact report was prepared for the project and a finding was made pursuant to Section 21081 of the California Environmental Quality Act that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. Facts in Support of Finding: C -1. A MND has been prepared for the proposed project, and it has been determined that the design of the subdivision for the proposed development will not result in a significant effect on the environment, nor substantially and avoidably injure fish or wildlife or their habitat. D. Finding: That the design of the subdivision or the type of improvements is not likely to cause serious public health problems. Facts in Support of Finding: D -1. The proposed parcel map would subdivide the existing 55,779- square -foot parcel of land into two separate parcels. Construction for the proposed new Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 9 of 13 office building would comply with all Building, Public Works, and Fire Codes, which are in place to prevent serious public health problems. Public improvements will be required of the developer per Section 19.28.010 of the Municipal Code and Section 66411 of the Subdivision Map Act. All ordinances of the City and all Conditions of Approval shall be complied with. E. Finding: That the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the decision - making body may approve a map if it finds that alternate easements, for access or for use, will be provided and that these easements will be substantially equivalent to easements previously acquired by the public. This finding shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to the City Council to determine that the public at large has acquired easements for access through or use of property within a subdivision. Facts in Support of Finding: EA The design of the development will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development, and all on -site easements including those for reciprocal ingress and egress shall be incorporated on the final parcel map. F. Finding: That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map Act, if the land is subject to a contract entered into pursuant to the California Land Conservation Act of 1965 (Williamson Act), the resulting parcels following a subdivision of the land would not be too small to sustain their agricultural use or the subdivision will result in residential development incidental to the commercial agricultural use of the land. Facts in Support of Finding: F.1 Because the subject property is not considered an agricultural preserve and is less than 100 acres, it is not subject to the Williamson Act. In addition, the subject property is zoned PC -15 (Koll Center Newport Planned Community), which does not allow agricultural uses. G. Finding: That, in the case of a `land project' as defined in Section 11000.5 of the California Business and Professions Code: (a) there is an adopted specific plan Planning Commission Resolution No. PRIES Office Building B (PA2007 -213) Paqe 10 of 13 for the area to be included within the land project; and (b) the decision - making body finds that the proposed land project is consistent with the specific plan for the area. Facts in Support of Finding: GA The property is not a "land project" as defined in Section 11000.5 of the California Business and Professions Code, and the project site is not located within a specific plan area. H. Finding: That solar access and passive heating and cooling design requirements have been satisfied in accordance with Sections 66473.1 and 66475.3 of the Subdivision Map Act. Facts in Support of Finding: H.1 The proposed parcel map and improvements associated with the proposed project are subject to Title 24 of the California Building Code that requires new construction to meet minimum heating and cooling efficiency standards depending on location and climate. The Newport Beach Building Department enforces Title 24 compliance through the plan check and inspection process. Findinq: That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act and Section 65584 of the California Government Code regarding the City's share of the regional housing need and that it balances the housing needs of the region against the public service needs of the City's residents and available fiscal and environmental resources. Facts in Support of Finding: 1.1 The proposed parcel map would subdivide the existing 55,779- square -foot parcel of land into two separate parcels. No residential uses are proposed as part of the project, and no affordable housing units are being eliminated. J. Finding: That the discharge of waste from the proposed subdivision into the existing sewer system will not result in a violation of existing requirements prescribed by the Regional Water Quality Control Board ( "RWQCB'). Facts in Support of Finding: Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 11 of 13 J.1 The proposed project would not exceed wastewater treatment requirements of the RWQCB, and additional wastewater discharge into the existing sewer system generated by the proposed project would not violate Rk YQCB requirements. K. Findinq: For subdivisicns lying partly or wholly within the Coastal Zone, that the subdivision conforms with the certified Local Coastal Program and, where applicable, with public access and recreation policies of Chapter Three of the Coastal Act. Facts in Support of Finding K.1 The subject property is not located in the Coastal Zone. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach does hereby find, on the basis of the whole record, that there is no substantial evidence that the project will have a significant effect on the environment and that the Mitigated Negative Declaration reflects the Planning Commission's independent judgment and analysis. The Planning Commission hereby recommends that the City Council adopt the Mitigated Negative Declaration, including the Mitigation Monitoring and Reporting Program, attached as Exhibit "A ". The document and all material, which constitute the record upon which this decision was based, are on file with the Planning Department, City Hall. 3300 Newport Boulevard, Newport Beach, California. 2. The Planning Commission of the City of Newport Beach does hereby recommend that the City Council approve General Plan Amendment No. 2008 -0s, �P2007 -009 to increase the maximum allowable development foi Anomaly Location #6 -from 34;500 y Square- feet to 46,044 gross square- Teet,limit by 11,544 gross square feet restricted to office use only. as depicted in Exhibit "B" and Exhibit "C" attached hereto and incorporated by reference. 3. The Planning Commission of the City of Newport Beach does hereby recommend that the City Council approve Planned Community Development Plan Amendment No. a 001PD2007 -006 to amend the Koll Center Newport (PC -15) Planned Community text to allow an increase in the allowable building area for Professional & Business Office Site FIB from 2400967.803 net square feet to 42;646977,720 net square feet Exhibit -D-attached hereto and incorporated by reference. Planning Commission Resolution No. PRES Office Building B (PA2007 -213) Paqe 12 of 13 4. The Planning Commission of the City of Newport Beach does hereby recommend that the City Council approve Tentative Parcel Map NP2010 -006 subject to the conditions set forth in Exhibit "Ri ." Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Paqe 13 of 13 PASSED, APPROVED AND ADOPTED THIS 5th DAY OF AUGUST, 2010. AYES: NOES: ABSTAIN ABSENT: tl' Earl McDaniel, Chairman BY: Michael Toerge, Secretary EXHIBIT "A" Mitigation and Monitoring Reporting Program No. Mitigation Measure Time Frame for Responsible Verification of Compliance Implementation& Monitoring Initials Date Remarks Monitoring A enc Biological Resources BIO -1 The removal of ornamental trees on site shall not During construction Project be scheduled during the avian nesting season construction (approximately February I through August 31) contractor to ensure project conformance with the Migratory Bird Treaty Act. If clearing and grubbing are proposed to occur between February I and August 31, a preconstruction survey for nesting birds shall be conducted by a qualified biologist no more than 7 days prior to the start of construction. If nesting birds occur within the disturbance limits, a buffer around the nest shall be determined by a qualified biologist. All construction activities shall occur outside the buffer area until a qualified biologist has determined that the nest is complete and that no new nesting activity has occurred within the buffer area. Cultural Resources CR -I Project plans shall specify that that qualified During construction Project paleontologist shall be contacted in the event that construction potential paleontological resources are contractor discovered. During construction, the contractor shall halt site excavation or preparation if suspected fossilized remains are unearthed. Construction shall cease on site and shall not be resumed until a qualified paleontologist is contacted to assess the resources and identify appropriate treatment measures, if applicable. Treatment measures may include salvaging fossils and samples of sediments as they are unearthed to avoid construction delays and/or temporarily halting or diverting equipment to allow removal of abundant or large specimens. Recovered specimens shall be prepared to a point or identification and permanent preservation, including washing of sediments to recover small invertebrates and vertebrates. Specimens shall be curated into a professional, accredited museum repository with permanent retrievable storage. A report of findings, with an appended itemized inventory of specimens, shall be No. Mitigation Measure Time Frame for Responsible Verification ofCompliance Implementation& Monitoring Initials Date Remarks Monitorin A enc prepared and shall signify completion of the program to mitigate impacts on paleontological resources. Geology and Soils GEO -1 Prior to approval of grading permits, soil Prior to issuance of City of Newport preparation measures to minimize expansion grading permits Beach Building potential shall be identified by the applicant in Department construction documents and grading permits. During construction, grading of the site by the contractor shall adhere to grading plans approved by the City. Soils required to bring the site to final grade shall be placed as engineered fill. The site soils may be re -used as compacted fill provided the material is cleaned of organics, demolition debris, and other deleterious materials. Fill originating on the project site shall be moisture- conditioned to approximately 130% of optimum and compacted to a minimum relative compaction of 90% in accordance with American Society for Testing and Materials (ASTM) standard D 1557 for laboratory compaction characteristics. The implementation of these measures shall be verified during field inspections. GEO -2 Prior to approval of grading permits, the grading Prior to issuance of City of Newport plans shall stipulate that all fill shall consist of grading permits Beach Building non - expansive materials, moisture- conditioned Department to near optimum if cohesionless, and to l30% of optimum if cohesive or clayey. The characteristics of the fill soil shall be evaluated by the geotechnical consultant prior to placement, and confirmed to meet grading plan specifications. GEO -3 Prior to approval of grading permits, the grading plans shall stipulate that wall backfill soils shall Prior to issuance of grading permits City of Newport Beach Building consist of granular, cohesionless backfill with Department sand equivalent greater than 30 and an expansion index less than 30. The characteristics of the fill soil shall be evaluated by the geotechnical consultant prior to placement, and confirmed to meet grading plan specifications. Hydrology and Water Quality WQ -1 Prior to issuance of grading permits, the Prior to issuance of City of Newport applicant shall prepare and have approved by the grading permits Beach Public City aSWPPP to be implemented during Works construction, which shall include BMPs to Department prevent discharges of polluted stormwater from construction sites from entering the storm drains or the existing retarding basin. The S WPPP shall be prepared as directed in the City's stormwater No. Mitigation Measure Time Frame for Responsible Verification of Compliance Implementation& Monitoring Initials Date Remarks Monitorin Aoenc protection requirements, and may include, but not be limited to, the following measures: • Diversion of off -site runoff away from the construction site. • Revegetation of exposed soil surfaces as soon as feasible following grading activities. is Installation of perimeter straw wattles to prevent off -site transport of sediment. R Protection of drop inlets (filters and sand bags or straw wattles) with sandbag check V dams in paved roadways. a Provision of specifications for construction waste handling and disposal. ® Training of subcontractors on general site housekeeping. Noise N -1 All noise - producing project equipment and During final design City of Newport vehicles using internal combustion engines shall and prior to plan Beach Code be equipped with mufflers, air -inlet silencers check approval Enforcement where appropriate, and any other shrouds, shields, or other noise - reducing features in good City of Newport operating condition that meet or exceed original Beach Building factory specification. Mobile or fixed "package" Department equipment (e.g., arc welders, air compressors) shall be equipped with shrouds and noise control features that are readily available for that type of equipment. N -2 All mobile and fixed noise - producing equipment During grading, site City of Newport used on the proposed project that is regulated for preparation, and Beach Code noise output by a local, state, or federal agency construction Enforcement shall comply with such regulation while in the course of project activity. City of Newport Beach Building Department N -3 Electrically powered equipment shall be used During final design City of Newport instead of pneumatic or internal combustion— and prior to plan Beach Code powered equipment, where feasible. check approval Enforcement During grading, site City of Newport preparation, and Beach Building construction Department N -4 Mobile noise - generating equipment and During, grading, site City of Newport machinery shall be shut off when not in use. preparation, and Beach Code construction Enforcement City of Newport Beach Building Department No. Mitigation Measure Time Frame for Responsible Verification of Compliance Implementation& Monitoring Initials Date Remarks Monitorin A enc N -5 Material stockpiles and mobile equipment During, grading, site City of Newport staging, parking, and maintenance areas shall be preparation, and Beach Code located as far as practical from noise- sensitive construction Enforcement receptors. City of Newport Beach Building Department N -6 Construction site and access road speed limits During, grading, site City of Newport shall be established and enforced during the preparation, and Beach Code construction period. construction Enforcement City of Newport Beach Building Department N -7 The use of noise - producing signals, including During, grading, site City of Newport homs, whistles, alarms, and bells, shall be for preparation, and Beach Code safety warning purposes only. construction Enforcement City of Newport Beach Building Department N -8 No project - related public address or music During, grading, site City of Newport system shall be audible at any adjacent receptor. preparation, and Beach Code construction Enforcement City of Newport Beach Building Department N -9 The onsite construction supervisor shall have the responsibility and authority to receive and During final design and prior to plan City of Newport Beach Code resolve noise complaints. A clear appeal process check approval Enforcement to the project proponent shall be established prior to construction commencement that shall During grading, site City of Newport allow for resolution of noise problems that preparation, and Beach Building cannot be immediately solved by the site construction Department supervisor. EXHIBIT "I3" REVISED TABLE LU2 ANOMALY LOCAT*NS Table Anomaly Number Statistical Area land Use Designation Development Limit (so Develo ment Limit Other Additional Information 1 L4 MU -H2 460,095 471 Hotel Rooms (not included in total square footage) 2 L4 MU -H2 1,052,880 2a 1.4 MU -H2 18,810 11,544 sf restricted to general office use only (included in total square footage) 3 1.4 CO-G 734,641 4 L4 MU -1-12 250,176 5 1.4 MU -H2 32,500 6 L4 MU -H2 34,500 7 L4 MU -H2 81,372 8 L4 MU -H2 442,775 9 L4 CG 120,000 164 Hotel Rooms (induded in total square footage) 10 L4 MU -H2 31,362 349 Hotel Rooms (not included in total square footage) 11 L4 CG 11,950 12 L4 MU -1-12 457,880 13 L4 CO -G 288,264 14 L4 CO- GIMU -H2 860,884 15 L4 MU -1-12 228,214 16 L4 CO-G 344,231 17 L4 MU -H2 33,292 304 Hotel Rooms (not included in total square footage) 18 L4 CG 225,280 19 L4 CG 228,530 21 J6 CO-G 687,000 Office: 660,000 sf Retail: 27,000 sf CV 300 Hotel Rooms 22 J6 CO-G 70,000 Restaurant: 8000 sf, or Office: 70,000 sf 23 K2 PR 15,000 24 L3 IG 89,624 25 1.3 PI 84,585 26 L3 IG 33,940 27 1.3 IG 86,000 28 1.3 IG 110,600 29 1.3 CG 47,500 39 M6 CG 54,000 31 L2 PR 75,000 32 L2 PI 34,000 Table Anomaly Stahsllcal land Use Development Number Area Designation Limit ES9 Development Limes Other Additional Information Administrative Office and Support Facilitates: 30,000 sf 33 M3 PI 163,680 Community Mausoleum and Garden Crypts: 121,680 sf Family Mausoleums: 12,000 sf 34 1-1 CO-R 484,348 35 L1 CO-R 199,095 36 L1 CO-R 227,797 2,050 Theater Seats (not 37 1.1 CO-R 131,201 included in total square footage) 38 1.1 CO-M 443,627 39 1.1 MU -143 408,084 40 L1 MU -H3 1,426,634 425 Hotel Rooms (included in total Square Footage) 41 L1 CO-R 327,671 42 1.1 CO-R 286,166 43 L1 Cv 611 Hotel Rooms 1,700 Theater Seats (not 44 L1 CR 1,619,525 included in total square footage) 45 L1 CO-G 162,364 46 1.1 MU -H31PR 3,725 24 Tennis Courts Residential permitted in accordance with MU -1-13. 47 L1 CG 105,000 48 Lt MU -1-13 337,261 49 1.1 PI 45,208 50 L1 CG 25,000 51 K1 PR 20,000 52 K1 Cv 479 Hotel Rooms 53 K1 PR 567,500 See Settlement Agreement 54 it CM 2,000 55 H3 PI 119,440 In no event shall the total 1,343,238 990,349 sf Upper Campus combined gross floor area of 56 A3 PI both campuses exceed the 577,889 sf Lower Campus development limit of 1,343,238 sq. ft. 57 Intentionally Blank 58 JS I PR 20,000 Table Anomaly statistical Land Use Development Number Area Designation Umti Development Umti Other Additional Information 157 Hotel Rooms and 144 59 H4 MU-W1 487,402 Dwelling Units (included in total square footage) 60 N CV 2,660,000 2,150 Hotel Rooms (included in total square footage) 61 N CV 125,000 62 L2 CG 2,300 63 G1 CN 66,000 64 M3 CN 74,000 65 M5 CN 80,000 66 J2 CN 138,500 67 D2 PI 20,000 68 L3 PI 71,150 69 K2 CN 75,000 70 D2 RAMD Parking Structure for Bay Island (No Residential Units) 71 Lt CO-G 11,630 72 L1 CO -G 8,000 73 A3 CO-M 350,000 74 L1 PR 35,000 City Hall, and the administrative offices of the City of Newport 75 1-1 PF Beach, and related parking, pursuant to Section 425 of the City Charter. EXHIBIT "C" REVISED FIGURE LUI I FOR STATISTICAL AREAS J6, L4 9 � 5 , ti ®��I1 001111 �l�]'�' � �l � � � �fl ©� �1� ®� � � � • F�> s 3 PART I1 Section 1. Group I EXHIBIT "D" KOLL CENTER NEWPORT PLANNED COMMUNITY TEXT CHANGES COMMERCIAL Site Area and Building Area PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area including landscape setbacks with property lines. (4) 0 Site A Site B Site C Site D Site E Site F Site G IC Site A Site B Site C Site D Site E Site F Site G Building Sites (4) Total Acreage 30.939 acres * (29) 43.703 acres (11) 18.806 acres (10) 19.673 acres 2.371 acres 1.765 acres 5.317 acres (8) 122.574 acres (8)(10)(11) Allowable Building Area Office Acreage 30.939 acres *(29) 43.703 acres (11) 18.806 acres (10) 19.673 acres 2.371 acres 1.765 acres 5.317 acres (8) 122.574 acres(8)(10)(11) 366,147 square feet (16)(26)(29)(30) 977,720 square feet (13)(16)(28)(30) 674,800 square feet (I 0)(15) 240,149 square feet (8)(13) 32,500 square feet (4) 24,300 square feet (4) 45,000 square feet (8) 2.350,699 square feet (15)( *) *(3)(4) In addition to 19.399 acres of office use, there is 9.54 acres for hotel and motel and 2.0 acres of lake within Office Site A. Therefore_. there are 30.939 acres net within Office Site A. (3)(4)(16) A 2. Site B Statistical Analysis (4) The following statistics are for information only. Development may include but shall not be limited to the following: Story heights shown are average heights for possible development. The buildings within each parcel may vary. Assumed Parking Criteria: a. One (1) space per 225 square feet of net building area @ 120 cars per acre for Sites C, D, E, F and G. Allowable Building Area ......... 967,803 square feet (13,16,28,30) Site Area ......... 43.703 acres (4) (11) a I'll C. Buildin Hg eight Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development Parking 3259 cars Landscaped Open Space (11) Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development Land Coverage (16,28,30) ............... 11.22 acres .... I.......... 7.48 acres ............... 5.61 acres ............... 4.49 acres ............... 3.74 acres ............... 3.21 acres ............... 2.81 acres ............... 2.49 acres ............... 2.24 acres ............... 2.04 acres .............1. 1.87 acres Land Coverage (11,13,16,28,30) ............... 27.16 acres Land Coverage (11,13,16,28,30) ............... 5.32 acres ............... 9.06 acres ............... 10.93 acres ............... 12.05 acres ............... 12.80 acres ............... 13.33 acres 13.73 acres ............... 14.05 acres ............... 14.30 acres ............... 14.50 acres ............... 14.67 acres EXHIBIT "E" CONDITIONS OF APPROVAL TENTATIVE PARCEL MAP NO. NP2010 -005 1. A parcel map shall be recorded with the Orange County Clerk- Recorder Department. The Map shall be prepared on the California coordinate system (NAD83). Prior to recordation of the Map, the surveyor /engineer preparing the Map shall submit to the County Surveyor and the City of Newport Beach a digital - graphic file of said map in a manner described in Section 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. The map to be submitted to the City of Newport Beach shall comply with the City's CADD Standards. Scanned images will not be accepted. 2. Prior to recordation of the parcel map, the surveyor /engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Sections 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set on each lot corner, unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 3. All improvements shall be constructed as required by City Ordinance and the Public Works Department, and shall comply with all Building, Public Works and Fire Codes. 4. No permanent structures may be built within the limits of any easement within the property, unless otherwise approved by the Public Works Department. 5. All work conducted within the public right -of -way shall be approved under an encroachment permit issued by the Public Works Department. 6. All applicable Public Works Department plan check fees, improvement bonds and inspection fees shall be paid prior to processing of the map by the Public Works Department. 7. County Sanitation District fees shall be paid prior to issuance of any building permits, if required by the Public Works Department or the Building Department. 8. Prior to recordation of the Parcel Map, fair share fees shall be paid in accordance with City Ordinance 94 -19 of the Newport Beach Municipal Code. 9. The parcel map shall be recorded prior to the issuance of any building permits. 10. Prior to site plan approval and issuance of any building permits, the applicant shall file a notice of Proposed Construction or Alteration with FAA (FAA Form 7460 -1) in accordance with Federal Aviation Regulation (FAR) Part 77. Following FAA's Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 2 of 5 aeronautical study of the project site, the proposed project shall comply with conditions of approval imposed or recommended by FAA. Subsequent to these findings, the City shall refer the proposed project to the Orange County Airport Land Use Commission for consistency analysis. The Director of Planning, or designee, shall verify that the City has received a Determination of No Hazard to Air Navigation prior to the issuance of building permits for the northern parcel. 11. Additional Public Works improvements, including street and alley reconstruction, work may be required at the discretion of the Public Works Inspector. 12. If any of the existing public improvements surrounding the site is damaged by the private work, public works improvements including, but not limited to, curb and gutter, sidewalk, and alley /street reconstruction may be required at the discretion of the Public Works Inspector. 13. An encroachment agreement shall be applied for and approved by the Public Works Department for all non - standard improvements within the public right -of -way and /or extensions of private, non - standard improvements into the public right -of -way fronting the development site. 14. Arrangements shall be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements if it is desired to record a parcel map or obtain a building permit prior to completion of the public improvements. 15. Overhead utilities serving the site shall be undergrounded to the nearest appropriate pole in accordance with Section 19.28.090 of the Municipal Code unless it is determined by the City Engineer that such undergrounding is unreasonable or impractical. 16. A sewer demand capacity study shall be submitted to the Public Works Department along with the first plan check. The study recommendation (s) shall be incorporated as part of the submitted plans. Any cost of upgrading the existing City sewer lateral shall be borne by the applicant. 17. The applicant shall provide a new public sewer easement for the existing City sewer lines along the southerly property lines. (Note: The new easements do not appear to impact the proposed development.) 18. In accordance with the provisions of Chapter 13 (or any other applicable chapters) of the Newport Beach Municipal Code, additional street trees may be required and existing street trees shall be protected in place during construction of the subject project, unless otherwise approved by the General Services Department and the Public Works Department through an encroachment permit or agreement. 19. All improvements shall comply with the City's sight distance requirement. See City Standard 11 0 -L. Planning Commission Resolution No. _ PRIES Office Building B (PA2007 -213) Page 3 of 5 20. The parking layout and circulation is subject to further review by the Public Works Department. The parking layout shall comply with City Standard STD - 805 -L -A and STD - 805 -L -B. 21. Trash service shall be provided prior to the start of the work day so it does not impact the overall circulation of the site. 22. All on -site drainage shall comply with the latest City Water Quality requirements. 23. All existing drainage facilities in the public right -of -way shall be retrofitted to comply with the City's on -site non -storm runoff retention requirements. The Public Works Inspector shall field verify compliance with this requirement prior to recordation of the parcel map. 24. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 25. In compliance with the requirements of Chapter 9.04, Section 901.4.4, of the Newport Beach Municipal Code, approved street numbers or addresses shall be placed on all new and existing buildings in such a location that is plainly visible and legible from the street or road fronting the subject property. Said numbers shall be of non - combustible materials, shall contrast with the background, and shall be either internally or externally illuminated to be visible at night. Numbers shall be no less than four inches in height with a one -inch wide stroke. The Planning Department Plan Check designee shall verify the installation of the approved street number or addresses during the plan check process for the new or remodeled structure. 26. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Newport Business Plaza including, but not limited to, the General Plan Amendment No. GP2007 -009, Planned Community Development Plan Amendment No. PD2007 -006, and Tentative Parcel Map No. NP2010 -005. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Paqe 4 of 5 any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 27. This Parcel Map shall expire if the map has not been recorded within three years of the date of approval, unless an extension is granted by the Planning Director in accordance with the provisions of Section 19.16 of the Newport Beach Municipal Code. Planning Commission Resolution No. _ PRES Office Building B (PA2007 -213) Paoe 5 of 5 Mitigation Measures 28. The applicant shall comply with all mitigation measures and standard conditions contained within the approved Mitigation Monitoring and Reporting Program of the adopted Mitigated Negative Declaration (Exhibit "A ") for the project.