HomeMy WebLinkAboutItem 1 - Appeal the Harbor Permit - Approval in Concept for the AERIE Dock StructureCITY OF NEWPORT BEACH
HARBOR COMMISSION STAFF REPORT
Agenda Item No. 1
October 14, 2009
TO: HARBOR COMMISSION
FROM: Harbor Resources Division
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmilleranewi)ortbeachca.cov
SUBJECT: Appeal the Harbor Permit / Approval in Concept for the AERIE Dock Structure at
201 -207 Carnation Avenue
ISSUE
Should the Harbor Commission affirm, modify or reverse the decision of the Harbor Resources
Manager who approved the Harbor Permit / Approval in Concept of the AERIE dock structure?
RECOMMENDATION
The Harbor Commission may choose one of the following actions:
1. Affirm the decision of the Harbor Resources Manager who approved the Harbor Permit /
Approval in Concept of the AERIE dock structure; or
2. Modify the decision of the Harbor Resources Manager; or
3. Reverse the decision of the Harbor Resources Manager.
DISCUSSION
On July 8, 2009, the Harbor Commission considered the AERIE project which includes eight (8)
slips and one (1) guest side tie to accommodate eight (8) new residential units proposed for the
property. The Commission reviewed the project along with the Special Conditions (Exhibit 1).
These conditions covered construction activity, noise, and providing minimal impact to the
adjacent cove, as well as various other conditions of use with the dock system, including a
beam limit restriction for vessels berthed at the bayward -most side tie. The Harbor Commission
then provided comments which were forwarded to the City Council who certified the
Environmental Impact Report (EIR) as being adequate on July 14, 2009:_.
On July 31, 2009, Harbor Resources issued a Harbor Permit,/ Approval in Concept with Special
Conditions for the dock system, and on August 13, 2009, the project opponents appealed the
issuance oftHis Harbor Permit.
The appeal 'questions the adequacy of the Environmental Impact Report and references
comments sdbmitted to the City in a letter dated May 4, 2009, by Coast Law Group (Exhibit 2).
AERIE Harbor Permit Appeal
October 14, 2009
City Staff and the City's environmental consultant prepared written responses to these
comments (Exhibit 3) in accordance with the California Environmental Quality Act. These
comments and responses were considered by both the Planning Commission and City Council
prior to the Council's determination to certify the EIR as being adequate on July 14, 2009. In
summary, environmental and policy issues highlighted in the appeal related to the proposed
dock structures have been addressed to the City Council's satisfaction and adequate mitigation
for potential impacts to the marine and boating environment are provided. These measures
have been applied to the Harbor Permit / Approval in Concept through the Special Conditions to
further ensure avoidance and mitigation of potential impacts.
The Harbor Commission may only consider the material previously submitted and discussed at
prior Harbor Commission meetings (Exhibit 5). For reference, the EIR is posted at:
httr)://www.newoortbeachea.aov/index.asi)x?i)acie=692
APPEAL PROCEDURES
Section 17.65.040 of the City's Municipal Code states:
A. Hearing Date. An appeal shall be scheduled for a hearing before the appellate
body within thirty (30) days of the filing of the appeal unless both applicant and
appellant body consent to a later date.
B. Notice and Public Hearing. An appeal hearing shall be a public hearing if the
decision being appealed required a public hearing. Notice of public hearings shall
be given in the manner required for the decision being appealed.
C. Plans and Materials. At an appeal hearing, the appellate body shall consider only
the same application, plans and project related materials that were the subject of
the original decision.
D. Hearing. At the hearing, the appellate body shall review the record of the
decision and hear testimony of the appellant, the applicant and any other
interested party.
E. Required Findings. At an appeal hearing, the appellate body shall make the
findings prescribed in the individual chapters of this Code when affirming,
modifying or reversing the original decision.
F. Decision and Notice. After the hearing, the appellate (or reviewing body) shall
affirm, modify or reverse the original decision. When a decision is modified or
reversed, the appellate (or reviewing) body shall state the specific reasons for
modification or reversal. Decisions on appeals shall be rendered within thirty (30)
days of the close of the hearing. The Harbor Resources Manager shall mail
notice of a Harbor Commission decision and the City Clerk shall mail a notice of
a City Council decision. Such notice shall be mailed within five working days after
the date of the decision to the applicant and the appellant.
AERIE Harbor Permit Appeal
October 14, 2009
PUBLIC NOTICE
This meeting has been publicly noticed via a mailer (to the residents and occupants within a
310' radius of the project) along with a jobsite posting on August 27, 2009. It was also posted
on the City's website on September 11, 2009 (Exhibit 4). This appeal was originally noticed for
the September 16, 2009 Harbor Commission meeting, but the applicant requested the appeal
be continued until the date certain Harbor Commission meeting on October 14, 2009. The
Commission unanimously approved this request via a motion on September 16, 2009.
This agenda item has been noticed according to the Ralph M Brown Act (72 hours in advance of
the public meetings at which the Harbor Commission considers the item). It was also posted on
the City's website.
ENVIRONMENTAL REVIEW
An EIR (SCH# 2007021054) has been prepared for the entire project which includes both
landside and harbor improvements. The City Council made the final determination as to the
adequacy of the EIR on July 14, 2009, and Harbor Resources staff issued a Harbor Permit /
Approval in Concept with Special Conditions for the dock portion of the project.
Prepared by:
Chris Miller
Harbor Resources Manager
Attachments: Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Harbor Permit / Approval in Concept with Special Conditions
Appeal
Written Response to Appeal Comments
Public Notice
Previous Harbor Commission Staff Reports (April 8, July 8 and
September 16 2009)
AERIE Harbor Permit Appeal
October 14, 2009
Exhibit 1
Harbor Permit / Approval in Concept with Special Conditions
HARBOR RESOURCES ACTION LETTER
RARSOR - \n
HAR1 RESOURCES
WO
829 HARBOR ISLAND DR
�tiiroa�`aP NEWPORT BEACH. CA 92660
(849) 644.3034 FAX (949} 723.0589
Action:
Approval date:
Pier Permit Number:
Applicant:
Site Address:
Approval in Concept / Pier Permit
July 31, 2009
105 -201
Advanced Real Estate Services, Inc
Mr. Richard Julian
201 -207 Carnation Avenue
Legal Description:
On July 31, 2009, the Harbor Resources Manager approved the following
Eight (8) replacement slips and one (1) guest side tie dock are requested for the eight
(8) new residential units proposed. The new dock layout is located between the existing
Pierhead line and the natural rock outcroppings, with special attention to the existing
eelgrass bed on the southern side of the property. The new docks will be composed of
timber supported by rotationally molded plastic pontoons which requlre less draft
(bottom clearance) than concrete floats, allowing the dock system to be located as close
to the rock outcropping as possible. This layout will accommodate boats up to 4004set
in length.
The current six (6) steel dock guide piles that support the existing docks will be replaced
with 19 new guide piles supporting the new dock system. Of these 19 piles, nine (9) will
be larger diameter piles (approx. 2 -foot diameter) to support the long, outside, bayward-
most side -tie float. All guide piles will be pre- stressed concrete piles set in pre - drilled
holes.
The existing 20 -foot long gangway will be replaced by a 44 -foot gangway. The pile -
supported pier walkway between the existing gangway platform and the existing
concrete pad will be repaired / replaced with a structure in- like -kind (timber - framing
system, a 2x timber deck, and limber railings all around). The existing concrete piles
supporting the walkway will be repaired in the form of concrete repairs. The gangway
platform construction will include the repair and replacement of four (4) steel piles,
timber framing with metal connectors, and a 2x timber deck with railings all around. The
existing concrete pad, concrete steps, and safety railings will be repaired and patched
as necessary.
AERIE Harbor Permit Appeal
October 14, 2009
Page 2
The Harbor Resources Manager's approval is subject to the attached conditions.
Appeal Period
The Harbor Resources Managers decision may be appealed to the Harbor Commission
within 14 (fourteen) days of the approval date via a written request addressed to Harbor
Resources. For additional information on filing an appeal, contact Harbor Resources at
(949)644 -3034.
6y, �6%yty
Chn�nsue Miller, Harbor Resources Manager
Attachments: Supporting Documents
AERIE Harbor Permit Appeal
October 14, 2009
:
�•r.,V,•ct�
HARBOR RESOURCES DIVISION
829 Harbor Island Drive
Newport Beach, CA 92660
(949) 644 -30341 Fax (949) 723 -0589
APPROVAL IN CONCEPT
APPROVAL IN CONCEPT BY THE CITY OF NEWPORT BEACH as required for permit
application to the South Coast Regional Commission pursuant to California
Administrative Code, Sections 13210 and 13211.
General Description of Proposed Development: Remove existing dock structure.
Construct 8 slips and 1 quest side tie for 8 new residential slips. Remove and replace
gangway with 44'ciangway. Various repairs to the supporting walkway. pier platform
and. support piles. See the Action Letter for a full ro'ect description-
County Encroachment Permit required because docks are over County Tidelands.
Address number must be stenciled on at least 1 bayward facing pile.
Pier conditions must be signed by applicant prior to final approval.
Property Address: 201 -207 Carnation Ave.
Harbor Permit Number: 105 -201
Plan Check Number: TBD
A licant: Advanced Real Estate Seniices Inc.. Richard Julian
Applicant's M iling Address: 23792 Rockfield 131vd- STF 100 take Forest CA 92630
Phone Number. 949 595 -5900
I have reviewed the plans for the foregoing development including:
1. The general site plan, including any roads and public access to the shoreline.
2. The grading plan, if any.
3. The general uses and intensity of use proposed for each part of the area covered
in the appllcation.
Page 1 of 2
AERIE Harbor Permit Appeal
October 14, 2009
And Find
They comply with the current adopted Newport Beach General flan, Municipal
Code, Title 17 and any applicable specific or precise plans or,
o That a variance of exception has been approved and final.
A copy of any variance, exception, conditional use permit or other Issued permit is
attached together with all conditions of approval and all approved plans including
approved tentative tract maps. On the basis of this finding, these plane are approved in
concept and said approval has been written upon said plans, signed and dated.
Should Newport Beach adopt an ordinance deleting, amending or adding to the
Municipal Code or other regulations in any manner that would affect the use of the
property or the design of a project located thereon, this Approval In Concept shall
become null and void as of the effective date of this said ordinance.
In accordance with the California Environmental Quality Act or 1970, and state and local
guidelines adapted thereunder, this development:
❑ Has been determined to be ministerial or categorically exempt.
o Has received a final Exemption Declaration or final Negative Declaration (copy
attached).
XHas received a Final Environmental Impact Report (copy attached).
All discretionary approvals legally required of Newport Beach prior to issuance of a
harbor permit and a building permit have been given and are final. The development is
not subject to rejection in principal by Newport Beach unless a substantial change is
proposed.
This concept approval in no way excuses the applicant from complying with all
applicable policies, ordinances, codes and regulations of Newport Beach. See attached
Special Conditions.
July 31, 2009
Attachments:
Worksheet for Building Permit Application
Drawing
Pier Conditions
Page 2or2 - --
AERIE Harbor Permit Appeal
October 14, 2009
i•I
HARBOR RESOURCES DIVISION
829 Harbor Island Drive
Newport Beach, CA 92660
(949) 644 -3034 / Fax (949) 723 -0589
Special Conditions
July 31, 2009
Property Address: 201 -207 Camation Ave.
With reference to the plans currently under consideration at the above referenced address to
reconfigure or modify the dock system or bulkhead, the following conditions will now be In
effect:
1. The project proponent is aware of the Harbor Permit Policies (Council Policy H -1) and Title
17 of the City of Newport Beach Municipal Code. The project proponent understands that the
above referenced structure(s) is under the purview of these Policies and Codes.
2. Any future work on the above mentioned structure(s) requires permits with the City of
Newport Beach and any other applicable agencies. Painting and work considered to be
cosmetic in nature does not require a permit.
3. The conditions set forth in this document pertain to the proposed dock system and /or
bulkhead under consideration. Any future modifications or alterations to the dock system
and /or bulkhead may require new conditions which may override or change these conditions.
These conditions supersede all past conditions associated with this property.
4. Only marine oriented uses are allowed on the pier, pier platform, gangway and float. Patio
furniture, plants etc... we not permitted.
5. In accordance with Municipal Code 10.08.030 A. the project proponent shall obtain the
proper permits for equipment and materials storage. "Except as otherwise provided in this
section, no person shall use any public street, sidewalk, alley or parkway or other public
property for the purpose of storing or displaying any equipment, materials or merchandise, or
any other commercial purpose. B. Public streets, sidewalks, alleys, or parkways may be used
for the purpose of selling, storing, or displaying any equipment, material, merchandise or for
other commercial purposes in the following cases: ... For the temporary storage of construction
equipment or material provided a permit is issued pursuant to Chapter 12.62 of this Code and
the storage is consistent with provisions of the Uniform Building Code."
6. The project shall be implemented in conformance with the Local Coastal Program -Coastal
Land Use Plan.
7. In accordance with Municipal Code 10.28.040 the following noise regulations apply: "A.
Weekdays and Saturdays. No person shall, while engaged in construction, remodeling, digging,
grading, demolition, painting, plastering or any other related building activity, operate any too],
equipment or machine in a manner which produces loud noise that.disturbs, or could disturb, a
person of normal sensitivity who works or resides in the vicinity, on any weekday except
between the hours of seven a.m. and six -thirty p.m., nor on any Saturday except between the
hours of eight a.m. and six p.m. B. Sundays and Holidays. No person shall, while engaged in
construction, remodeling, digging, grading, demolition, painting, plastering or any other related
building activity, operate any tool, equipment or machine in a manner which produces loud
noise that disturbs, or could disturb, a person of normal sensitivity who works or resides in the
vicinity, on any Sunday or any federal holidWe 1 of 2
AERIE Harbor Permit Appeal
October 14, 2009
8. The contractor shall post and update a two week schedule of construction activities at a
Iocafton(s) easily accessible to local residents.
9. Eelgress beds have been found adjacent to the project area and shall be protected per the
"Southern California Eelgrass Mitigation Policy" prepared and managed by NCAAt National
Marine Fisheries Service,
10. During construction, disturbance of the adjacent beach shall be minimized. Construction
materials and equipment shall not be placed on the beach. The beach's sand dollar habitat
shall be protected during construction. The project applicant shall submit a Beach Protection
Plan to the Harbor Resources Manager for approval MOT to start of construction. In addition,
the Beach Protection Plan shall include Best Management Practices for protecting the beach
after the project is oomplete.
11. The project applicant and its successors are notified that even though the proposed dock
system replaces an existing dock system, the new docks will be constructed in the Entrance
Channel to Newport Bay which is subject to surge and swell activity which may cause damage
to the dock system and vessels berthed therein. It is the responsibility of the project applicant
and Its successors to maintain and operate the dock system to minimize damage t0 the dock
system and vessels. The dock system shall be subject to nuisance abatement per Title 17 of
the Municipal Code, If in the opinion of the Harbor Resources Manager, it presents an
endangerment to other facilities or vessels In the harbor.
12. The project applicant must remove the existing dock system including the gangway and
pier within 90 days of receiving all final regulatory permits allowing the construction of the
replacement dock system.
13. The vessels that will be side -tied to the outside, bayward -most float which is positioned on
the Pierhead Line, shall not extend Into the harbor more than 24 feet from the edge of this
outside, bayward -most float.. This is shown on the approved drawings as the "Vessel Width
Umft Line." The vessels side tied at this location shall be safety secured to withstand various
weather and oceanrbay conditions. The applicant shall also submit an Inclement Weather
Action Plan to the Harbor Resources Manager that describes detailed preventative measures
that writ be taken with respect to the vessels during storm conditions.
14. The guest side4ie on the north end of the dock system shall only be available for vessels
less than or equal to 30 feet in length. This side tie shall be used for guest berthing only and
will riot be used for any permanant, long term vessel storage, and will not be rented or leased.
15. The number of boat slips and side ties (as described in 913 and #14 above) approved in
the final design must be the same as the number of dwelling units approved by the City Council
in the final project approval.
16. The side property lines extend in the water along their same bearings. Vessels shall not
encroach upon the neighbor's property on either side.
17. The slips and side ties are only available for AERIE owner's use, except for the guest side
tie, They are not to be used by anyone else, whether by rental, lease or loan or any other
measure. Every eatencaryear, the applicant shall provide the Harbor Resources Managerwith
a list that demonstrates that the AERIE homeowners are owners of their corresponding vessels.
18. The applicant will comply with the conditions and mitigation measures eppiicatxe to the
dookipler construction portion of the project as provided in Council Resolution No, 2009 -62,
Chris Miller, Harbor Resources Manager
Applicant Signature Print Name Date
Page 2 .of 2
Exhibit 2
Appeal
4V t S e d APie'k
August 13, 2009
Chris Miller
City of Newport Beach
Harbor Resources
829 Harbor Island Drive
Newport Beach, CA 92660
RE: 201 -207 Comadon Avenue
10irwtimm,
AERIE Harbor Permit Appeal
October 14, 2009
We recently received your harbor Resources Action Lcu(r regarding the Approval in
Concept/ Pier Permit for the Aerie project's proposedanarinu, date July 31,2009. We
am appealing your decision to the liarhor Conunission for many masons, but specifically
for tltcapproval of as VM R Ond is legally deficient and the resulting violations under the
California Envirunmcntal Quality Act (C)?QA). The project also violates the City's own
CLUP policies, Ow Coastal Act, and California Trust Doctrine:
Per the appeal, please include and refer to the DEIR Comment Letter from Coast Law
Group, dated May 4, 2009, submitted to the Newport Beach Planning Department, and
the Harbor Commission, on behairof Residents for Responsible Development,(RFRD),
of which Joe and Liso Vallejo, and Kathleen: McIntosh, am members.
Joe Vallejo, Lass Vallgo
eujJ/-Wc
Kathleen McIntosh
Residents for Responsible Development
AERIE Harbor Permit Appeal
October 14, 2009
Exhibit 3
Written Response to Appeal Comments
(o- (
May 4, 2009
James Campbell
Principal Planner
Newport Beach Planning Dept
3300 Newport Boulevard
Newport Beach, CA 92658
RECVIrl) BY
A
- ,It.!INO DV.OAPTMFl`4(
(�7TF-12- fit). to
169 Saxony Road
Suite 204
Encinitas, CA 92024
040111 r Lr l:,a 760- 942 -0505
1,
,,,.i .j r5{ j �bl I r''�'. 760-942 -8515
Via Electronic Mail
j a m p b e l l@ c i ty. n ew p o rt-b e a c h, c a, u s
Re: Aerie Multiple - Family Residential Project
Residents for Responsible Development
Comments on Draft Environmental Impact Report
Dear Mr. Campbell:
Coast Law Group LLP represents the interests of Residents for Responsible Development
(RFRD) with respect to the City's review of the above - referenced project (the "Aerie Project" or
"Project "). RFRD is comprised of a group of concerned neighbors living in Corona Del Mar and
Newport Beach. Thank you for the opportunity to participate in the review process and to
submit comments on the Draft Environmental Impact Report (DEIR) While RFRD is not
opposed to the appropriate development or the subject property, the Project as currently
proposed does not comply with the City's land use regulations and therefore fails to adequately
protect the site's coastal bluff and surrounding resources.
Further, the DEIR is legally deficient under the California Environmental Quality Act (CEQA)
because it fails to carry out the statute's informational goals- As the City is aware, CEQA
mandates full disclosure to promote informed decision - making and an opportunity for
meaningful public participation. The statute's fundamental goals have not been carried out in
this case. Given the scope of the Project and the numerous significant impacts associated
therewith, the Project cannot be approved as currently designed. With these issues in mind,
RFRD respectfully submits the following comments for the City's consideration:
1. Coastal Bluff Impacts
The DEIR Is legally deficient under CEQA because the Project will result in significant land use
impacts. As a cursory review of the DEIR discloses, construction of the proposed condominium
structure will result in the complete eradication of the underlying coastal blu€f. Notwithstanding
this obvious fact and the City's express coastal policies prohibiting the same, the DEIR fails to
discuss or otherwise acknowledge the significance of this loss Indeed, the DEIR painstakingly
avoids the issue altogether and therefore fails to satisfy its informational purpose under CEQA_
Per appendix G of the CEQA Guidelines, a proposed project will result in a significant land use
impact if it conflicts "with any applicable land use plan, policy, or regulation of an agency with
jurisdiction over the project (Including, but not limited to the general plan, specific plan, local
coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an
environmental effect"
Here, the City's General Plan and Coastal Land Use Plan (CLUP) set forth express provisions
prohibiting the physical alteration of coastal bluffs and landforms Particularly relevant to the
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 2
consistency analysis in this case, these regulations are separ'ale and dislinci from the general
restrictions that apply to aesthetics and compliance with the predominant line of existing
development (PLOED)
(per For instance, one of the discrete goals of the General Plan is to ensure that "[ d]evelopment
respects natural landforms such as coastal bluffs." (General Plan, Goal NR23, p 10 -40) To
(�� f effectuate this goal, the Natural Resources Element sets forth a number of specific coastal bluff
T. policies, including the following:
NR 23 1. Maintenance of Natural Topography: Preserve cliffs, canyons, bluffs,
significant rock outcroppings, and site buildings to minimize alteration of the site's
natural topography and preserve the features as a visual resource.
(General Plan, p 10 -40, emphasis added).'
Similarly, the CLUP contains a discrete section addressing "Natural Landform Protection" (see
CLOP §4.4 3. p 4 -74 to 4 -80) and expressly states that coastal bluffs are to be protected. (ld.
at p. 4 -75). In doing so, the CLUP notes that coastal bluffs have been "physically or visually
obliterated by structures, landform alteration or landscaping," (ld at p. 4 -75). As with the
General Plan, the CLUP sets forth a number of specific policies to ensure that new
10.2 development complies with its protective mandate. For Instance, the CLUP states:
4 4 3 -12: Employ site design and construction techniques to minimize alteration of
coastal bluffs to the maximum extent feasible, such as ... [u]tilizing existing driveways
and building pads to the maximum extent possible l
(CLUP, pp 4-78,4-79)
Furthermore, the CLUP specifically references the coastal platform occupied by Corona del Mar
and addresses the manner in which bluff - related development may occur Notably, the clear
intent of the CLUP is to prohibit any further alteration of Corona del Mar's coastal bluffs. The
CLUP states:
Corona del Mar Is one of the few areas in the coastal zone where there is extensive
development of the bluff face; specifically, residential development on Avocado Avenue,
(0'3 Pacific Drive, Carnation Avenue, and Ocean Boulevard The Initial subdivision and
development of these areas occurred prior to the adoption of policies and regulations
intended to protect coastal bluffs and other landforms. Development in these areas is
allowed to continue on the bluff face to be consistent with the existing development
pattern and to protect coastal views from the bluff top. However, development of the
bluff face is controlled to minimize further alteration
(Cl p. 4 -76; emphasis added).
' See also Policy LU1 .3 (requiring the preservation of'open space resources, beaches, harbor,
parks, bluffs, preserves, and estuaries as visual, recreational and habitat resources)
a See also Policy 4 4 1 -3 ( "Design and site new development to minimize alterations to significant
natural landforms, including bluffs, cliffs and canyons')-
fO 4-
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 3
To ensure Corona del Mar's coastal bluffs are protected in accordance with this intent, the
CLUP sets forth the following policy:
4.4.3.8: Prohibit development on bluff faces, except private development on coastal
bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del
Mar determined to be consistent with the predominant line of existing development or
public improvements providing public access, protecting coastal resources, or providing
for public safety. Permit such improvements only when no feasible alternative exists
and when desianed and constructed to minimize alteration of the bluff face. to not
surrounding area to the maximum extent feasible
(CLUP, p 4 -78; emphasis added) '
Thus, as the foregoing illustrates, coastal bluffs in the area have been physically and visually
obliterated due to prior development and associated grading activities. To prevent the continued
loss of these resources, development must be carried out such that alterations to the natural
topography and underlying coastal bluff are minimized to the maximum extent feasible. This
16 �� mandate Is separate and distinct from the obligation to preserve coastal bluffs as a visual
resource. And to the extent bluff - related development is permitted in the Corona del Mar area
at all, it must be consistent with and limited to the scope of pre- existing structures such that
further landform alterations are avoided. These limitations apply because bluff face
development is now strictly prohibited and is only allowed per those grandfathered uses.
In the General Plan and CLUP consistency analysis, the DEIR repeatedly concludes that the
Project complies with the foregoing policies because the exterior development will not extend
below the PLOED and the structures will have a "curvilinear' design. In doing so, the DEIR
(D (� completely ignores the Project's lateral encroachments and subterranean impacts to the bluff.
The DEIR's consistency analysis is therefore deficient because it fails to address the specific
bluff protection policies outlined above. And as detailed below, the DEIR's findings are not
supported by substantial evidence and will be subject to challenge as an abuse of discretion.
Ip -7
The Project is sited above the entrance to Newport Harbor on one of the City's character-
defining coastal bluffs. As such, it is visible from public vantage points throughout the Balboa
Peninsula and Newport Bay (DEIR, p. 3 -2). The bluff is part of the Monterey Formation, which
was formed approximately 80,000 to 120,000 years ago and has a "high paleontological
sensitivity" due to an abundance of marine life fossils (DEIR, pp 4 9 -1, 4'10 -1). The bluffs are
considered "significant scenic and environmental resources and are to be protected " (CLUP,
p. 4 -75).
Notwithstanding the foregoing, the Project will result in the eradication of the site's underlying
coastal bluff, as follows: "The upper elevation of the project site is approximately 70 feet above
mean sea level," (DEIR, p 4 7 -1; emphasis added) Project construction will require
excavation to an elevation of 28 feet. (DEIR, p. 4.2 -2, Table 4.2 -1) As such, the proposed
project will result in the eradication of 60% of the underlying bluff (See DEIR pp. 3 -19, 3 -21,
' See also Policy 2 B 1.4 (ensure that new development does not contribute to the "destruction of
the site or surrounding area or in any way require the construction of protective devices that would
substantially alter natural landforms along bluffs and cliffs ");
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 4
Ex 3 -13, 3 -14, cross sections illustrating extent of bluff removal).
To accomplish this result, the Project will require the excavation of 25,000 cubic yards of the
underlying bluff, which will simply be disposed of in the Brea Olinda Landfill, (DEIR, p. 4.2 -3)
The need to transport such a large quantity of earth material to the landfill will result "in the
generation of approximately 2,105 heavy truck trips over the 5 -month grading and excavation
phase" (id at 4 2 -3).
The scope of the excavation is further illustrated by the fact that the project will require a
setback variance, as "the majority of the encroachments are subterranean." (!d. at 4.1 -20). In
that regard, the site will be completely hallowed out such that only a sliver of the bluff face will
remain intact The DEIR states:
Excavations for and construction of planned subterranean levels, which will remove
existino fill soils as well as a maiority of the terrace deposits caooino the bedrock ar
tz,-1
of the exposed bluff face to approximately Elevation 52 8 NAVD
the [sic] both the lithologic bedrock unit exposed and the rock quality, the remaining
trapezoidal section of intact rock will have sufficient strength to remain in place during
the economic life of the structure (i.e., 75 years).
(DEIR pp 4.9 -6, 4 9 -7; emphasis added).
The direct purpose of these excavation activities is to accommodate a massive, six story
building consisting of over 61,000 square feet by eradicating the underlying bluff and disguising
a high -rise structure in its place (See DEIR, p. 3 -12).' To allow such a practice would set an
incredibly poor precedent for future development in the area and would lead to the complete
destruction of the City's coastal bluffs over time Moreover, the Project would permanently alter
the 100,000 year -old bluff in favor of leaving a rock "pillar' that is only expected to remain in
place for the structure's 75 -year economic life.
Notwithstanding the foregoing, the DEIR slates that the Project "has been designed to 'fit' the
bluff' and "would not alter the existing landform that characterizes the site " (DEIR, pp, 4 1 -20,
4 5 -B) As set forth above, these contentions are not supported by substantial evidence. In that
regard, there is no question that the Project violates the protective policies of the General Plan
and CLUP, as the proposed development has not been designed to "minimize alteration" of the
(0 -9 site's natural topography and underlying bluff "to the maximum extent feasible" (General Plan
Policy NR 23.1; CLUP Policy 4.4.3 -8; emphasis added) Further, less intrusive alternatives
(that do not require substantial excavation) clearly exist. Based on the foregoing, the Project
will result in significant land use impacts and the DEIR's conclusions to the contrary are not
' While the logic of this passage Is not entirely clear, It seems to suggest that the excavation
activities will somehow constitute a Project benefit because evisceration of the bluff will result in less bluff
erosion in the future This. of course, defies common sense and cannot be relied upon as a justification
for Project approval.
' The DEIR does not identify the square footage of the site's existing residential structures and
therefore fails to provide an adequate baseline for evaluating Project Impacts
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 5
supported by substantial evidence,
2. Visual & Aesthetic Impacts
Given the bulk and scale of the proposed condominium structure, the Project will result in
significant visual and aesthetic impacts under CEQA. The overall building height of the
�� (D residential structure will be increased by approximately nine feet over the existing multiple -
family structure and 17 feet over the existing single family residence. (DEIR, p. 4.5 -3) As
noted above, the resulting Project consists of a 61,000 square -foot high -rise structure which is
entirely inconsistent with the surrounding community in terms of both architectural style and
overall mass °
10 -(f
Relevant here, the CLOP states that the City must "[cjontinue to regulate the visual and
physical mass of structures consistent with the unique character and visual scale of Newport
Beach." (CLUP, Policy 4.4 2 -2). Despite this dear mandate, the DEIR fails to provide a
reasoned analysis of the Project's compatibility with the surrounding neighborhood (such as a
comparative square footage analysis of other residential structures on Carnation Avenue).
Instead, the DEIR repeatedly stales that the Project will not result in a significant aesthetic
impact because "it would be smaller than the Channel Reef Development located to the south "
(DEIR, p. 4.1 -35). Given the DEIR's conclusory discussion of this issue, approval of the Project
will be subject to challenge as an abuse of discretion.
The foregoing deficiencies are equally at issue with respect to the scope of the proposed dock
structure The dock, which will total approximately 3,500 square feet (CRM Eelgrass Survey, p.
(o_.rZ 21), will accommodate nine vessels, Including a 100 -foot yacht. While the DEIR does not
provide any details regarding the height and bulk of the vessels expected to be moored on -site,
there is no question that their presence will directly impact views of Carnation cove and the
adjacent rock outcroppings that form its southwestern boundary.
With respect to this Issue, the General Plan states: "Preserve cliffs, canyons, bluffs, significant
rock outcroppings, and site buildings to minimize alteration of the site's natural topography and
60_(3preserve the features as a visual resource." (General Plan, NR 23 1; p 10 -40, emphasis
added). Likewise, the CLUP identifies rock outcroppings as significant iandforms that must be
protected (CLUP, p 4 -77)
10.14
In attempting to reconcile the dock structure with the foregoing policies, the DEIR states,
"Although some views of the cove and rock features below the bluff from some vantages in the
harbor would be partially or totally obscured by the proposed dock facility, the obstruction would
be brier and intermittent only as one travels in and out of the harbor" (DEIR, p. 4.1 -16; see
also p. 4.5 -8)
This conclusion is not supported by substantial evidence, as it fails to consider the Project's
impacts on stationary views from the Peninsula Indeed, the dock system has been sited
directly adjacent to the two rock outcroppings such that they will be completely obscured from
cross - channel vantage points. (See DEIR, Ex 3 -17, depicting extent to which outcroppings will
be obscured). By the same token, the DEER fails to evaluate potential impacts to views from
6 See e g visual simulations at Exhibits 4 5 -7 and 4 5 -8.
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 6
Carnation Cove to the Harbor and Channel. (See CLUP Policy 44 1 -1, requiring protection of
public views to and along the bay and harbor)
With respect to glare, the DEIR fails to adequately consider the drastic increase in reflective
surface area resulting from the Project's design. (See DEIR, Ex, 4 -15, 3 -16) In that regard, the
DEIR should evaluate potential view impacts from Harbor and Peninsula vantage points during
times or maximum sun reflection
3. Noise Impacts
While the DEIR recognizes that noise impacts will be significant and unmitigable with respect to
construction of the proposed residential structure, it fails to adequately consider dock - related
�O - 6 Impacts! The DEIR states, "Construction of the dock is scheduled from May 2012 to July 2012
and is estimated to have a duration of 40 days" (DEIR, p 4 4 -20). Given this time- frame, the
DEIR must evaluate potential noise impacts to recreational uses within Carnation Cove, as the
beach area is most frequently visited during summer months.
lt> -!7
Moreover, the DEIR deliberately understates dock - related construction impacts on neighboring
residences The DEIR states that impacts from drilling noise will reach 71dB and 68 dB at 101
Bayside Place and 2495 Ocean Boulevard, respectively. (DEIR, p. 4.4 -20) However, these
figures represent average noise impacts. The dock constriction noise study prepared by
Wieland Acoustics states that maximum noise levels at those locations will reach 83 dB and 77
dB, respectively (Wieland Acoustics Study, App. E, p 12). These figures clearly exceed the
standard 65 dB threshold of significance for assessing residential noise impacts. (See DEIR, p.
44-1),
By the same token, the DEIR completely omits any reference to noise Impacts associated with
installation of the concrete piles (which will reach 80 dB at the closest residence) (1d.). The
,0_,8 failure to include this information constitutes a prejudicial abuse of discretion, as the DEIR does
not disclose the full extent of the Project's environmental impacts
4. Vibrational Impacts
With respect to vibrational impacts, the DEIR states that the "analysis of potential short -term
vibration Impacts was evaluated at both the closest distance that would occur as well as the
average distance " (DEIR, p. 4.4 -23). However, this does not appear to be accurate, as the
Vibrational study attached to the DEIR only slates that impacts were assessed from a distance
of 80 feet (See Planning Center Study, DEIR App. F, p. 57). In any event, neither the DEIR
nor the vibrational study identifies the actual distance between the anticipated impacts and the
closest residence.
7 Regarding construction of the residential structure. the applicable noise study did not consider
impacts associated with crane operations on the grounds that use of the rig would be Intermittent
(Planning Noise Study, App. F, pp 31.32) However, as is the case with construction traffic, intermittent
tmpscts can result in significant noise impacts. As such, the crane's impacts must be properly evaluated
in the Final EIR
s The DEIR also fails to disclose noise Impacts to residential structures across the Channel
Notably. drilling - related noise levels will reach 65dB at 2222 Channel Road (Wieland Acoustics Study,
App E. p 12) Because this borders the 65 dB threshold, the impact must be disclosed
to -in
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 7
Because the Project requires a setback variance to accommodate excavation activities, the
impacts are likely to occur within several feet of adjacent residences. As such, the DEIR must
address potential vibrational impacts in terms of both cosmetic and structural damage This
applies with respect to construction of the condominium structure as well as the dock facility, as
"the risk of structural damage still exists even at relatively low vibration levels," (Wieland
Acoustics Study, App. E, p 7). Notably, the study prepared to measure dodo- related vibrational
impacts does not address this Issue. The report states:
Because it is outside our area of expertise, the risk (if any) of structural damage due to
transmitted vibrations or dynamic settlements has not been evaluated in this study This
risk should be analyzed and assessed by qualified structural and geotechnical
engineers
(Wieland Acoustics Study, App_ E, p. 15; emphasis added),
This issue must be adequately analyzed in the Final EIR and to the extent any significant
impacts will result the DEIR must be re- circulated The analysis must give due consideration to
site conditions, including the hard rock material prevalent in the Monterey Formation (see DEIR,
pp. 4.9 -1, 4.9 -7), as well as the age and physical condition of neighboring structures' Also
relevant, the evaluation must be based on peak particulate velocity (PPV) threshold standards.
PPV "is most appropriate for evaluating potential building damage since it is related to the
stresses that are exerted upon the buildings." (Wieland Acoustics Study, App. E. p. 6) 10
The DEIR's analysis of vibrational impacts on human perception is likewise deficient, and fails
to accurately disclose the findings of the applicant's own reports. Notably, "when groundborne
vibration exceeds 72 to 80 VdB, it is usually perceived as annoying to occupants of residential
buildings." (ld. at p. 8) Per the CEQA Guidelines, a significant impact will be assessed if the
project will result in "[e]x[psosure of persons lo, or generation of, excessive groundborne
vibration or groundborne noise levels. This impact will occur if any construction activity causes
I4-. ..:6.N:..a ...JS...:I.. 1- -1 It :A B. ...........1 Yh I— OA k1AD n1 ..n —A: -------- :.L...1::.1 6..:Idiw.. n 11A .
emphasis added). Here, development of the condominium structure will result in the following
impacts at the nearest structures:
to —2, f
• Loaded Trucks: 90 VdB
Caisson Drill: 97 VdB
• Large Bulldozer: 97 VdB
I
• Ram Hoe: 97 VdB
(Planning Center Study, App.. F. p 59, In 2).
Based on the foregoing, the Project's construction impacts will exceed the applicable threshold
by a substantial margin As such, the Project will result in significant vibrational impacts to
0 See Wieland Acoustics Study, App E, p 6 ('The level of ground vibration experienced at any
location depends mainly on the construction method. soil medium, distance from the vibratory source, and
the structural dynamics of the building')
10 See also Transportation- and Construction - Induced Vibration Guidance Manual, California
Department of Transportation (June 2004), p. 27 The Planning Center Study does not explain why
differing standards were applied with respect to evaluating potential cosmetic damage
(n -22'
Aerie Project, comments on Draft EIR
May 4, 2009
Page 0
neighboring residents and the Final EIR cannot be certified without a statement of overriding
considerations on this issue
S. Eelgrass Impacts
Eelgrass beds are considered habitat areas of particular concern because they attract "many
marine invertebrates and fishes and the added vegetation and the vertical relief [they] provide
enhances the abundance and diversity of the marine life compared to areas where the
sediments are barren." (DE1R, pp. 4.7 -7, 4- 7 -14). The beds also serve as a nursery for various
juvenile fish species (Id at 4.7 -7; CLUP, p. 4 -9)- Further, eelgrass Is a major food source in
nearshore marine systems, and serves numerous beneficial physical roles (such as reducing
wave action and erosion, stabilizing sediment and improving water clarity)- (Southern California
Eelgrass Mitigation Policy (revision 11), p 1).
Given the foregoing, the "loss of eelgrass as a result of coastal development is considered to
be a significant environmental impact, and any potential impacts to this resource must be
avoided, minimized or mitigated." (CLUP, p 4.58; emphasis added) In that regard, the CLUP
sets forth a number of eelgrass protection policies, including the following:
4.14-1: Continue to protect eelgrass meadows for their important ecological function as
a nursery and foraging habitat within the Newport Bay ecosystem.
4 1.4 -3: Site and design boardwalks, docks, piers, and other structures that extend over
the water to avoid impacts to eelgrass meadows. Encourage the use of materials that
allow sunlight penetration and the growth of eelgrass
4 2 -5 -1: Avoid impacts to eelgrass (Zoslera marina) to the greatest extent possible.
Mitigate losses of eelgrass at a 1.2 to 1 mitigation ratio and in accordance with the
Southern California Eelgrass Mitigation Policy. Encourage the restoration of eelgrass
throughout Newport Harbor where feasible.
(CLUP, pp. 4 -40, 4 -41, 4 -60; emphasis added)
The Southern California Eelgrass Mitigation Policy (Mitigation Policy), in turn, 'requires all
eelgrass patches to be protected or replaced, regardless of its size, location, or habitat value or
the extent of eelgrass coverage within the harbor." (CLUP, p 4 -59). However, as a threshold
matter, the Mitigation Policy states that transplant mitigation shall only be considered after
policies for avoidance and minimization "have been pursued to the fullest extent possible prior
to the development of any mitigation program" (Mitigation Policy, p 1).
With respect to "boat docks and related structures," the Mitigation Policy expressly reiterates
the need to avoid eelgrass impacts from the outset, as follows:
Boat docks, ramps, gangways and similar structures should
eelgrass or potential eelgrass areas is infeasible, impacts should be minimized by
utilizing, to the maximum extent feasible, construction materials that allow for greater
light penetration (e.g , grating, translucent panels, etc ).
(Mitigation Policy, p 2; emphasis added)
!0-2 -3
Cmfj r r.
to -�4
10-25
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 9
These avoidance measures are necessary due to "the time (i e , generally three years)
necessary for a mitigation site to reach full fishery utilization " (Id. at p. 3; emphasis added).
The Mitigation Policy also sets forth detailed mapping requirements. It states:
The project applicant shall map thoroughly the area, distribution, density and
relationship to depth contours of any eelgrass beds likely to be impacted by project
construction. This includes areas immediately adjacent to the project site which have
the potential to be indirectly or inadvertently impacted as well as potential eelgrass
habitat areas.
(Id at p. 2; emphasis added)
With respect to these last requirements, eelgrass mapping surveys shall only be valid "for a
period of 60 days with the exception of surveys completed in August - October " (Id. at p. 3). In
addition, potential eelgrass habitat areas must be mitigated at a ratio of 1 to 1 (ld.)
In this case, construction of the proposed dock facility will violate the CLUP's protective policies
and will therefore result in significant eelgrass impacts Further, the DEIR's proposed mitigation
measures are wholly inadequate, as they fail to comply with the basic requirements of the
Mitigation Policy
As a preliminary matter, the prevalence and current location of eelgrass beds in the Project
vicinity are not known with sufficient accuracy because the DEIR continues to rely on the March
2007 eelgrass survey (DEIR, p. 4.7 -16) While the applicant's eelgrass survey was apparently
updated in March of [his year, it continues to rely on the survey activities conducted in March of
2007 (CRM Eelgrass Survey, p 6).
Per the Mitigation Policy, the 2007 survey is no longer valid and the DEIR therefore relies on
outdated information in purporting to assess potential eelgrass impacts- In that regard, a
current survey must be performed to evaluate the extent to which the southern eelgrass bed
has extended further north into the dock area. (See CRM Eelgrass Survey, Fig, 4) Likewise,
the status of the eelgrass patch adjacent to the northern property boundary line must be
evaluated."
With respect to the substantive policies set forth above, the Project violates the CLUP because
the dock has not been sited and designed to avoid impacts to eelgrass meadows "to the
greatest extent possible." (CLUP, 4.1.4 -3; 4.2 5 -1). Indeed, the dock's design and proposed
location will result in direct impacts to the eelgrass meadow located to the south of the cove.
With respect to vessel - related impacts, the DEIR states that propeller scarring and prop wash
associated with the construction barge and support vessels could adversely impact eelgrass
vegetation. To mitigate this Impact, the DEIR states as follows:
Support vessels and barges shall maneuver and work over eelgrass beds only during
tides of +2 feet mean lower low water (MLLW) or higher to prevent grounding within
eelgrass beds, damage to eelgrass from propellers, and to limit water turbidity.
H The survey must also satisfy the Mitigation Policy's requirements with respect to surveying
density and identifying / mitigating impacts to potential eelgrass habitat areas (see Mitigation Policy, p 2)
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 10
(DEIR, p 4..7 -16; emphasis added)
10-2-5 However, the DEIR fails to address the significant impacts that will result from boats owned by
qlo T the residents themselves As reflected in Figure 5 of the applicant's eelgrass survey, all boats
I using the dock's southern slips must travel directly through the adjacent eelgrass bed to access
the dock. Because no tide - related access restrictions apply, these activities will result in
significant eelgrass impacts_ The DEIR is legally deficient because it falls to evaluate or
otherwise consider this impact
Further, the Project not only violates the CLUP, it fails to comply with the express provisions of
the Mitigation Policy The policy states that docks are to be sited and designed to "avoid
to (Mitigation Policy, p. 2; emphasis added). The surface area of the proposed dock system totals
approximately 3,500 square feet (CRM Eelgrass Survey, p 21), and the DEIR provides no
discussion as to why such a massive structure is required
Because the dock system can be eliminated outright or limited to its current size, there is no
basis to conclude that eelgrass meadows have been avoided to the maximum extent feasible
Indeed, the elimination of the dock's southern slips could potentially avoid impacts to the cove's
A0 eelgrass bed. As such, the scope of the dock must be appropriately reduced before
transplanting measures may be implemented under the Mitigation Policy. (See Mitigation
Policy, P. 1) "
6. Impacts to Carnation Cove
Carnation Cove supports "an extremely diverse assemblage of plant and animal life due to its
location near the Harbor Entrance Channel and the combination of rocky outcrops and fine
sands -to -silt substrates " (DEIR, p 4.7 -8) As such, the Cove is "an important marine sandy
tidal flat that displays features that while once present and common, no longer exists in other
areas of Newport Bay." (ld.; emphasis added). These shallow areas support a significant
intertidal sand dollar population which is now unique and rare within the Bay. (Id) "If the sand
dollar population that exists in the cove is removed, it is unlikely that it would establish itself at
another site because similar conditions do not exist elsewhere in the bay." (Id. at p 4 7 -17).
The sandy sediment also provides viable bottom habitat for numerous snail species (Id.).
10 -Z8
Given the Cave's inherent biological value, disturbances of the "intertidal and shallow subtidal
habitat, eelgrass, and sand dollar bed within the cove would be considered a significant adverse
impact to on -site resources " (CRM Eelgrass Survey, p. 22; DEIR, p 4 7 -17).
Although the Cove's tidal habitat is expressly recognized as "unique and rare," the DEIR fails to
provide any meaningful discussion as to how dock construction impacts wilt actually be
mitigated. This deficiency is due, in large part, to the fact that the DEIR provides an entirely
inadequate project description with respect to dock removal and construction activities.
Because the DEIR fails to provide this critical information, the Project's impacts cannot be
accurately assessed
12 To the extent transplanting measures will apply. the DEIR does not provide sufficient
information as to how they will be implemented
10 _;!g
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 11
For instance, the DEIR's dock - related project description consists of less than one full page.
With respect to dock removal, the DEIR simply slates that six support piles will be removed and
the existing 20 -foot gangway will be replaced by a 60 -foot long gangway Regarding dock
construction, the DEIR states that 19 piles will be required to support the new dock and that the
four steel piles supporting the gangway platform will be repaired or replaced. (DEIR, p 3 -26)
As to construction activities within the Cove itself, the DEIR merely stales that the timber
walkway will be replaced in- like -kind and "existing concrete piles supporting the walkway will be
repaired in the form of concrete repairs." (DEIR, p 3 -26; emphasis added).
Notably, the pier and walkway structure will pass over one of the Cove's rock outcroppings and
directly into the sensitive tidal habitat discussed above. (See DEIR, Ex 3 -17). As such,
construction activities will take place on the beach and within the sand dollar habitat
Notwithstanding this fact, the DEIR does not provide any meaningful discussion (either in the
project description or biological resources section) as to the construction equipment that will be
required, the manner in which pier supports and timber replacement will be delivered to the
Cove, the manner in which the pler /walkway supports piles will be installed without impacting
the sand dollar population, the number of vessels that will be working on -site, and so on
With respect to mitigation measures, the DEIR states that the tidal area will be adequately
protected because construction workers will be instructed to avoid the area. (DEIR, p. 4.7 -17)
However, the DEIR does not explain how this is possible given the need for "concrete repairs"
to the supporting piles themselves. Nor does the DEIR explain how silt curtains can be
10-30 deployed to protect the tidal habitat from these direct impacts. Likewise, the DEIR states that
tubidity plumes will be reduced because piles will be removed and replaced using "Best
Available Technology " (fd, at p. 43-18). Yet the DEIR does not provide any explanation as to
what technologies will actually be used.
Moreover, there is no basis to conclude that the remaining "protective" measures (notifying
10-31 residents of the Cove's sensitivity, placing debris bins on -site, and removal of debris from the
seaFloor) will adequately mitigate construction impacts Indeed, the fact that construction debris
will need to be removed from the bottom indicates that impacts will in fact occur.
Given the foregoing, the DEIR contains a legally deficient project description and fails to
(0-37- adequately evaluate the Project's impacts on Carnation Cove Further, the findings associated
with the aforementioned mitigation measures are not supported by substantial evidence "
Special Status Plant Species
Under CEQA, the deferral of environmental assessment to a future date runs counter to the
statute's express policy which requires that environmental review be conducted at the earliest
feasible stage in the planning process. Sundstrom v. County of Mendocino (1988) 202 Cal.
Ga -33 App 3d 296, 307 (citing Pub. Resources Code, § 21003.1) -
Here, the DEIR improperly defers the assessment of whether any special status plant species
exist on -site. Per the DEIR, nine such species have the potential to exist at the Project site
(DEIR, p 4 7 -2), but the extent to which they are actually present remains unknown In that
I) The DEIR stales. "sand transport impacts are not anticipated as a result of the placement and
configuration of piles in a single row (hat is parallel and not perpendicular to the direction of sand
transport " (DEIR. p 4 7 -17) Given the sensitive nature of the Cove. such speculation is improper under
CEQA and sand transportation must be adequately studied and evaluated in the Final EIR
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 12
regard, the DEIR states that surveys will be performed to acquire this information "during the
appropriate blooming window identified for each species " (DEIR, p. 4.7 -13) To the extent any
special status species do exist on -site, an incident take permit must be obtained prior to
issuance of a grading permit. (td ).
(0-33 Deferral of the impact assessment in this manner is entirely improper under CEQA Notably, all
L0l.Q'� nine species are currently within their blooming window (DEIR, p 4 7 -2) As such, the
presence and extent of any impacts must be assessed now so appropriate mitigation measures
may be assessed during the CEQA review process. To the extent any such impacts will occur,
the DEIR must be re- circulated for public review." Similarly, the DEIR must assess the extent
to which dock construction activities will impact the southern coastal bluff scrub community
existing on the rock outcroppings. (See DEIR, p 4 7 -1)..
to _3¢
8. Traffic and Parking Impacts
The DEIR "s discussion of parking and traffic impacts falls to satisfy CEQA's informational
purpose For instance, the DEIR fails to adequately consider potential impacts related to off -
site construction parking and shuttle transportation, and improperly defers review with respect
to the location of anticipated parking sites. The DEIR states that "the applicant will secure one
or more binding off -site parking agreements to accommodate the varying number of workers
needed for each construction phase." (DEIR, p. 1 -9). The DEIR further states that these "off-
site parking location(s) will be located within a five -mile radius of the site." (td.)
Because the DEIR defers the identification of parking sites to a later date, it inappropriately
circumvents the public's opportunity to comment on any related impacts - particularly the
concerned residents and businesses that will be located in close proximity thereto. Notably, the
DEIR does not identify how many construction workers are anticipated to park off -site during
each phase, the number of parking spaces that will be required, potential sites with sufficient
capacity to meet those needs, and the traffic conditions in the site(s)' vicinity Upon completion
of this analysis, the DEIR must be re- circulated to afford an adequate opportunity for public
review and comment
The DEIR is similarly deficient with respect to the identification and analysis of the heavy
!fl-3S vehicle staging /queuing areas that will be necessary to ensure that only one truck is present at
any given time at the Project site (See RCPG Policy 4.04 - "Transportation control measures
shall be a priority.")
Further, the DEIR fails to adequately consider road and safety impacts associated with heavy
truck activities Notably, the roadways in the Project vicinity are antiquated and in poor
condition The surface condition of adjoining streets will be adversely affected by the
thousands of heavy truck trips that will occur over the 32 -month construction period In that
regard, the DEIR fails to specify the anticipated tonnage per truck or otherwise evaluate road
deterioration and safety concerns
Finally, the DEIR fails to adequately consider potential fire safety concerns associated with the
underground parking facility and the extent to which fire personnel will be able to access the
10„37
same In cases of emergencies
" By the same token, deferral of the analysis prohibits an accurate determination of whether the
Project will result in significant land use impacts See CLUP Policy 4 4.3 -15; General Plan Policy NR 217
(requiring that new development be designed and sited to "minimize the removal of native vegetation ")..
The same deferral deficiencies apply with respect to the scope of shading impacts on eelgrass beds
Aerie Project, Comments on Draft EIR
May 4, 2009
Page 13
91 Floor Area Ratio
Because floor area ratio (FAR) is a measurement used to determine development intensity and
is based on developable land space, areas that cannot be developed or improved are not to be
included in net lot area. With respect to the proposed condominium structure, the applicant has
10 3c3 inappropriately included the site's submerged lands in the FAR calculation. Doing so has
resulted in a project that is not compatible with the surrounding neighborhood in terms of size,
bull( and scale. Because FAR regulations are intended to ensure that new construction
remains consistent with existing development and community character, the violation thereof
will result in a significant land use impact under CEQA.
10. Setback Variance
While the City is afforded discretion in justifying variances and modifications, its discretion is
subject to significant limitations In that regard, a variance may be proper where the harms that
the regulatory scheme is intended to prevent would not otherwise occur, In this case, the
(0 39 requested setback variance will result in significant unmitigable impacts to the underlying
coastal bluff. As such, approval of the Project as currently proposed will severely compromise
the integrity of the City's land use regulations and policies. The request is therefore improper
and should be denied
11. Miscellaneous
The DEIR is further deficient because It fails to consider (1) the extent to which kayak/small boat
access to Carnation Cove will be obstructed during summer dock construction activities, (fi) the
16),40 Project's impacts on waste disposal capacity as a result or dumping 25,000 cubic yards of bluff
material into the Brea Olinda Landfill; and (ill) the extent to which the expanded dock facility
(and associated construction activities) will impact channel navigation and recreation.
(d -4.1
11 Conclusion
As detailed above, the Project will result in a number of significant environmental impacts in
addition to those relating to construction noise. By failing to adequately evaluate those
additional impacts up front in the DEIR, the City improperly limited the scope of environmental
review. Likewise, the massive size, bulk and scale of the Project is not compatible with the
surrounding community, as reflected by the structure's excessive square footage and the
resulting need to eradicate the underlying coastal bluff Based on the foregoing, the Project is
not legally defensible and approval of the EIR in its current form will constitute an abuse of
discretion.
Sincerely,
COAST LAW GROUP LLP
!J
�r /
Ross i Campbelr Me' o A. Gonzalez
./
CC: Client
Karl Schwing, California Coastal Commission (by e-mail)
10. Coast Law Group (May 4, 2009)
Response to Comment Nos. 10 -1 through 10 -5
The commenter offers the interpretation that Natural Resources Policy NR23.1 provides two separate and
distinct development objectives that are to minimize alteration of a site's natural topography and to
preserve the site's features as a visual resource. The commenter points to CLUP Policy 4.4.3 -12 and the
narrative of the Coastal Land Use Plan regarding the goal to control bluff face development to minimize
further alteration. These two objectives cannot be separate and distinct when considering that CLUP
Policy 4.4.3 -8 that allows development on the Corona del Mar bluff faces provided it is done so in
accordance with the identified PLOED. If minimizing alteration of a site's topography were a separate goal,
minimizing alteration would suggest no alteration beyond that associated with existing development would
be allowable. If this were the case, a site well within the PLOED could not achieve development levels
comparable to the predominant development pattern and an inequity would be created that is contrary to
Policies 4.4.3 -8 and 4.4.3 -9. Both of the NR23.1 objectives are achieved when development does not
alter the topography of the site in excess of the PLOED.
The comment incorrectly states that the intent of the CLUP is to prohibit any further alteration of coastal
bluffs in Corona del Mar. Development on coastal bluff faces in Corona del Mar, including Carnation
Avenue, is controlled to minimize further alteration and is permitted by CLUP Policies 4.4.3 -8 and 4.4.3 -9.
Development must be within the PLOED. The City Council established a PLOED for the site at elevation
507 feet NAVD88. The project is proposed to be more than two feet higher than the PLOED at elevation
52.83 feet NAVD88, except for a dock access /emergency exit at elevation 40.5 feet NAVD88, which will
be recessed and screened from public view by rocks and /or landscape elements. The basement and sub-
basement levels are subterranean and will not be visible from either the street or the bay. Project
implementation will result in the removal of man -made elements (except the existing access stair on the
bluff face) located below the PLOED that currently affect the visual character and integrity of the bluff.
Specifically, the bluff face is altered to varying degrees with retaining walls supporting the apartment
building and exterior walkways. This bluff face alteration due to existing development extends down the
bluff faced to varying elevations from approximately 68 feet to as low as 42.3 feet. As a result of
development, these altered portions of the bluff face below elevation 50.7 feet NAVD88 ( PLOED) will be
restored. The remainder of the bluff face below the PLOED established by the City Council will be
preserved. These aspects of the proposed project will avoid a significant impact to the visual quality and
views and will result in an enhanced view of the bluff below the proposed building when viewed from the
Bay.
The commenter suggests that that the project is inconsistent with a portion of CLUP Policy 4.4.3 -8 that
"permits such improvements only when no feasible alternative exists..." The reference in CLUP Policy
4.4.3 -8 to "such improvements" has been interpreted by the City Council to refer to the "public
improvements' referenced in the first sentence of the policy and not "private development." Therefore, the
commenter's interpretation of Policy 4.4.3 -8 is not accurate.
The comment further states that "to the extent bluff - related development is permitted in the Corona del
Mar area at all, it must be consistent with and limited to the scope of pre- existing structures such that
further landform alterations are avoided. These limitations apply because bluff face development is now
strictly prohibited and is only allowed per those grand- fathered uses." The commenter presumably
believes that bluff face further development of bluff faces is prohibited except where pre- existing
structures have altered the bluff face. Indeed this is one interpretation of PLOED policies, but it fails to
recognize the fundamental principal of the policy. Properties are presently developed on the bluff face to
differing degrees and those properties that are not developed consistent with the predominant
development pattern are allowed to further alter the bluff face to achieve development judged to be within
the identified predominant development pattern; it is a way to preserve a measure of equity in property
rights by allowing similar lots in similar topographic settings to be developed in a similar manner. In this
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Responses to Public Comments
May 2009
Page 44
case, the City Council considered the existing development along the Carnation /Ocean bluff and the
identified the PLOED at 50.7 feet NAVD88. The project is proposed to be more than two feet higher than
the PLOED at elevation 52.83 feet, except for a dock access /emergency exit at elevation 40.5 feet that is
recessed and screened from public view. As a result, the proposed project is consistent with existing
development pattern of the area and it preserves the bluff face below the proposed residential structure as
a visual resource in a manner that minimized alteration of the site's natural topography consistent with
CLUP and General Plan policy.
Response to Comment No. 10 -6
The comment incorrectly concludes that that CLUP's policies apply to subterranean excavation and
"lateral encroachments." This conclusion is not supported by the plain wording of the CLUP policies. The
referenced policies (4.4.3) never discuss subterranean excavation and/or lateral encroachments. To the
contrary, they regularly make reference to "bluff faces" (4.4.3 -8, 4.4.3 -9). Therefore, the DEIR properly
concludes that the project is consistent with the CLUP policies analyzed in Table 4.1 -2. With respect to
minimizing landform alteration, refer to Responses to Comment Nos. 10 -1 through 10 -3.
Response to Comment No. 10 -7
The comment incorrectly states that the project will result in the eradication of the site's underlying coastal
bluff. As stated in these responses to comments, the lowest elevation of the proposed project (other than
the dock access /emergency exit) is approximately 10 feet higher on the bluff than the lowest extent of a
portion of the foundation of the existing residential structure. Additionally, excavation behind the bluff face
will not adversely affect either the stability of the bluff or appearance of the bluff. The issues raised by this
comment are fully addressed in General Plan and CLUP consistency analyses (refer to Tables 4.1 -1 and
4.1 -2, respectively) in Section 4.1 of the DEIR.
It is important to note that the reason to minimize landform alteration is to avoid visual impacts in the
context of the CLUP policies and Coastal Act. Alteration of the bluff below and behind the bluff face and
PLOED does not compromise either the integrity of the bluff as intended in Policy NR 23.1 or the PLOED
as established by the City Council. While the intent of Policy NR 23.1 may be the "preservation" of the
bluff, development must balance the goals of maintaining /enhancing the aesthetic character of a coastal
bluff and, at the same time, minimize landform alteration. The project has been designed to achieve that
balance by respecting the PLOED as established by the City Council, incorporation of a landscape palette
that is complementary to the City's coastal bluff environment, and siting and designing the structure to
conform to the existing bluff topography. As a result, the project is consistent with the intent of these
policies.
Response to Comment No. 10 -8
The commenter provides conclusory statement without stating any basis for those conclusions. The
comment alleges that excavation associated with the proposed project would "set an incredibly poor
precedent for future develop merit in the area and would lead to the complete destruction of the City's
coastal bluffs over time." This is incorrect. Developments like the proposed project require extensive
environmental review prior to approval. If such future projects could lead to bluff instability or erosion
impacts, those issues would be examined in the course of that environmental review. Ultimately, the City
will make an individualized determination as to the appropriateness of a given project for a given site. It is
therefore both inaccurate and irresponsible to suggest that approval of the proposed project would
somehow "lead to the complete destruction of the City's coastal bluffs over time."
The comment further alleges that excavation associated with the proposed project would "would
permanently alter the 100,000 year -old bluff in favor of leaving a rock 'pillar' that is only expected to
remain in place for the structure's 75 -year economic life." This intentionally misrepresents the DEIR's
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Responses to Public Comments
May 2009
Page 45
reference to a 75 -year economic life. The reference to 75 years in the DEIR was not intended as an
upper -limit on the durability of the rock pillar. Instead, it was a direct response to CLUP Policy 2.8.6 -10,
which requires developers to "[s]ite and design new structures to avoid the need for shoreline and bluff
protective devices during the economic life of the structure (75 years)."
A number of technical studies have been prepared to assess the potential project to ensure that
development of the site is consistent with CLUP Policy 2.8.6 -10. These studies include: (1) Grading Plan
Review Report prepared by Neblett & Associates, August 2005; (2) Coastal Hazard Study prepared by
GeoSoils Inc., dated October 2006; (3) Stormwater Pollution Prevention Plan prepared by Hunsaker and
Associates dated June 2005 (revised January 17, 2008); and (4) Hydrology analysis prepared by
Hunsaker & Associates Irvine dated March 2007 (Revised December 20, 2007). Collectively, the findings
of these studies and technical review documents indicate that the project will neither be subject to nor
contribute to erosion, geologic instability, geologic hazard nor require shoreline protective devices during
the economic life of the structure (75 years). In addition, the proposed project will be designed to comply
with current CBC structural design parameters and other measures prescribed in the
geologic /geotechnical report prepared for the project. Additionally, to further validate the conclusions of
the studies pertaining to the stability of the bluff, the City retained an independent third party geologist to
review the stability issue. That third party geologist, GMU, concurred with the conclusions of the reports
regarding bluff stability.
Although footnote 4 of this comment suggests that the engineering and geological studies defy common
sense, the reality is those studies are based on sound scientific and engineering data and analysis.
Additionally, footnote 5 of this comment states that the DEIR does not identify the square footage of the
site's residential structures. The DEIR provided information related to the size of the site, number of units,
percent of site coverage to provide the appropriate baseline for evaluating project impacts. As a point of
information, the square footage of the site's existing residential structures is approximately 16,493 square
feet. (Note: This number is referenced in the Air Quality Technical Appendix.)
Response to Comment No. 10 -9
Refer to Responses to Comment Nos. 3 -8, 2 -11, 3 -18, and 10 -4. The comment states that "the Project
violates the protective policies of the General Plan and CLUP), as the proposed development has not
been designed to 'minimize alteration' of the site's natural topography and underlying bluff "to the
maximum extent feasible." (Emphasis in original.) The City disagrees. The project is proposed to be
more than two feet higher than the PLOED at elevation 52.83 feet NAVD88, except for a dock
access /emergency exit at elevation 40.5 feet NAVD88. As a point of reference, the lowest reach down the
bluff face of the existing apartment building is 42.3 feet NAVD88. Project implementation will therefore
result in up to a maximum of approximately 10 additional vertical feet of bluff face along a portion of the
bluff that is currently altered, as compared with existing conditions. As an added benefit, the man -made
features (e.g., concrete remnants, pipes, etc.) would be removed from the bluff face below the proposed
structure, which would be landscaped and enhanced with native plant materials.
Response to Comment No. 10 -10
The comment incorrectly concludes that the proposed project would result in "significant visual and
aesthetic impacts under CEQA" because it will be taller and larger than existing development. This
comment reflects disagreement with the conclusions presented in the Draft EIR. However, it does not
provide new facts or new analysis that would permit a meaningful response. Other than noting that the
project is not a high rise structure and it is not the tallest structure nor the structure with the greatest
number of stories in the vicinity, the commenter is referred to the analysis in Section 4.1 (Land
Use /Relevant Planning) and Section 4.5 (Aesthetics) for the detailed analysis supporting the conclusions
presented in the DEIR.
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 46
Response to Comment No. 10 -11
It should be noted that a comparative floor area analysis, as suggested in this comment, is not necessarily
the only or best measure of determining potential visual impacts related to the physical mass of a
particular structure within a visual context. Other factors, such as architecture, building materials, site
design, and conformity with the natural topographic features, in this case, a coastal bluff, are but a few of
the factors that determine a project's potential visual impacts.
The Corona del Mar community is represented by a variety of architectural styles and designs and is
characterized by a range of smaller single - family detached residences to large, multiple - family structures
when viewed from the harbor. Although the proposed multiple - family structure be unique in character, its
mass would not be unique when compared to other structures in the immediate vicinity, including the
Channel Reef development. What the comment characterizes as an "abuse of discretion' is reference to
a much larger project two lots from the proposed project. To the contrary, to pretend that the diversity of
architecture and structures within the neighborhood does not exist would ignore the directives of CEQA to
analyze the project in the context of the existing environment. Many of the 17 visual simulations contained
in Section 4.5 clearly depict the diverse structures both in terms of design and mass that are present in the
neighborhood. In addition, these simulations illustrate that the physical mass of the proposed structure is
not out of character when viewed in context with the existing structures.
Response to Comment No. 10 -12
This comment is incorrect. The height and bulk of the boats anticipated to utilize the proposed dock
facilities are illustrated in each of the visual simulations from the harbor vantages (refer to Exhibit 4.5 -14
through 4.5 -19). As indicated in those visual simulations and discussed in the accompanying analysis of
the view impacts, the potential effects of the proposed docks would alter views from several vantages;
however, the views would only be interrupted for a short period of time as one travels up and down the
channel. None of the existing aesthetic amenities (e.g., bluff formations below the PLOED, rock
outcroppings, cove, etc.) would be destroyed or permanently damaged as a result of project
implementation and views to the bluff and below, although temporarily affected, would not be lost. As a
result, potential visual impacts are anticipated to be less than significant.
Response to Comment Nos. 10 -13 and 10 -14
As indicated in the visual analysis and reiterated in Response to Comment No. 10 -12, none of the existing
rock outcroppings would be destroyed or permanently altered. The proposed project has been designed
in accordance with the established predominant line of existing development (PLOED) established by the
Newport Beach City Council with the exception of the emergency access, which has been designed to be
indiscernible from the harbor.
Exhibit 4.5 -4 (Simulation V02) does provide a visual perspective from Channel Road Beach, which is
located across the channel from the subject property. As indicated in that visual simulation and discussed
on page 4.5 -8 in the Draft EIR, when occupied by one or more boats, the proposed boat docks would also
obscure some of the rock features located below the bluff. However, it is important to note that views of
the majority of the natural features located north of the proposed docks would not be affected. The affect
would be similar to that related to view blockage that would occur with boats that could be docked at the
existing dock facilities. Therefore, while the proposed project would result in some long -term obstruction
from public vantages along the Peninsula, the incremental effect of such obstruction when compared to
the existing obstructions as well as those that could occur from the use of the existing docks would be less
than significant.
Aerie (PA 2005196)
Responses to Public Comments
May 2009
Page 47
Response to Comment No. 10 -15
Refer to Response to Comment No. 2 -21.
Response to Comment No. 10 -16
Based on the data provided in Section 7 of the referenced report, and using a distance of 130 feet from
the proposed dock construction to the beach at Carnation Cove, it is estimated that the average
construction noise level will be 72 dB(A) and the maximum noise level will be 77 dB(A) during the drilling
phase. During the concrete pile phase the estimated average construction noise level will be 69 dB(A) and
the maximum noise level will be 77 dB(A). The estimated increase in noise level due to construction
activities will be 14.6 to 21.5 dB(A) during the drilling phase and 11.6 to 18.5 dB(A) during the concrete
pile phase. These levels do not substantially increase the severity of the identified noise impact and do not
change the DEIR's finding of unavoidable significant construction noise impacts. Recreational uses in the
small cove are limited to swimming and kayaking when the tide is higher in the Bay and occasionally sun
bathing when the cove is exposed at low tide. Physical access from the water will be maintained during
construction of the docks; however, visitors may choose to avoid the cove during the construction period.
Noise would be intermittent during the day and intermittent during the overall construction. Assuming that
access to the cove might be affected for up to 40 days, the resulting impact to access (for recreational use
of the cove) is considered less than significant considered the intermittent, short-term nature of the
potential impact.
With respect to footnote 7, crane usage at the project site was estimated by the project's architect to occur
for less than 15 percent of the time. The graphics in the Construction Noise and Vibration Study depict
average conditions for each of the major construction phases. Inclusion of noise contour graphics for all
types of equipment that would be used during the construction of the proposed project would not be
practical. The noise contour graphics were included to portray typical noise level exposures at the noise
sensitive uses proximate to the project site. Due to the intermittent and infrequent nature of crane usage
at the project site, this noise source was not included as part of the portrayal of typical conditions. In
addition, the inclusion of noise generated by intermittent crane usage would not result in a substantial
increase in the severity of noise impacts or change the finding of unavoidable significant construction
noise impacts nor would it substantially change the magnitude of noise generated at the project site.
Response to Comment No. 10 -17
The commenter is correct that maximum noise levels were not identified in the main body of the DEIR.
However, as indicated in the comment, they can be found in Appendix E of the DEIR. The location of
these maximum noise levels within the DEIR does not affect the DEIR's analysis or conclusions. With
regard to a "standard 65 dB threshold of significance for assessing residential noise impacts ", the 65 dB
standard referred to in the comment is a community noise equivalent level (CNEL) standard and is applied
only to transportation noise (e.g., traffic) since it considers 24 hours of continuous noise exposure.
Construction noise is controlled by Section 10.28.040 (Construction Activity — Noise Regulations) of the
City's Municipal Code. This section of the Code controls construction noise by regulating the hours during
which it is allowed to occur. There are no quantitative standards for construction noise levels.
Response to Comment No. 10 -18
The noise impacts associated with the installation of concrete piles are discussed in Appendix E of the
DEIR. Referring to the appendix, it can be seen that both the average and maximum construction noise
levels during the concrete pile phase of dock construction are expected to be less than the noise levels
during the drilling phase. The location of this discussion within the DEIR does not change the DEIR's
finding of unavoidable significant construction noise impacts nor does it change the magnitude of
construction noise generated at the project site.
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 48
The noise impacts at residences across the Channel are discussed in Appendix E of the DEIR. The
location of this discussion within the DEIR does not change the DEIR's finding of unavoidable significant
construction noise impacts. With regard to the 65 dB threshold, please refer to Response 10 -17.
Response to Comment No. 10 -19
The comment states that the vibration analysis only addresses construction equipment working 80 feet
from vibration - sensitive uses. Both the average and maximum vibration levels were assessed as shown
in Table 18 of the Construction Noise and Vibration Study. The average vibration level is based on
equipment operating at the center of the project site, approximately 80 feet from the nearest residence.
The maximum vibration level is based on equipment generally working between 9 and 13 feet from the
nearest residence as shown in the attached tables. The attached table summarizing vibration further
supports the conclusions regarding vibration impacts set forth in the DEIR.
Response to Comment No. 10 -20
The comment requests that cosmetic and structural damage be taken into account in the DEIR. Cosmetic
and structural damage from construction activities were evaluated as shown in the analysis starting on
page 4.4 -22 of the DEIR, Section 7.2 of the Environmental Noise Study for the Construction of the
Proposed Carnation Cove Dock Replacement Project, and Section 4.2.2 of the Construction Noise and
Vibration Study. Cosmetic and structural damage are considered as the same type of impact. The DEIR
specifies cosmetic damage relative to project generated vibration because structural damage may imply
damage to the structural integrity of a building, which would not occur due to construction activities.
The comment also requests that the analysis consider site conditions, including the geology at the project
site. The methodology for the assessment of vibration impacts is consistent with the methods adopted by
the Federal Transit Administration for construction activities. Prediction of vibration impacts is inherently
difficult due to the multitude of variables, such as geologic strata, soil type, presence of water, etc. The
most accurate method of determining levels of vibration at sensitive uses is through the use of vibration
monitoring equipment included in the Construction Management Plan (CMP). The CMP requires that
vibration probes be placed at 215 Carnation Avenue to monitor construction activities at the site due to its
proximity and relationship to the subject property. A vibration monitoring program will identify any
construction activity that exceeds the criteria for cosmetic damage. If cosmetic damage occurs, the
applicant has agreed to indemnify the property owners in the immediately contiguous lots against any
losses resulting from that cosmetic damage, provided that those contiguous owners provide the applicant
with access to their structures to allow a pre - demolition inspection of the current condition of their
structures. With the implementation of the vibration monitoring, which includes use of alternative methods
if vibration levels have the potential to cause cosmetic or structural damage and the requirement to
indemnify property owners of vibration - induced cosmetic /structural damage, vibration impacts were found
to be less than significant.
Response to Comment No. 10 -21
The comment states that the DEIR's analysis of annoyance from construction - generated vibration is
deficient in that it exceeds the FTA's threshold of perceptibility. Although the vibration does exceed the
threshold of perceptibility, as stated in the DEIR and the Construction Noise and Vibration Study, the
assessment of human annoyance from construction vibration were based collectively on four criteria and
not a single one:
1. perceptibility
2. frequency of occurrence
3. time of occurrence
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Responses to Public Comments
May 2009
Page 49
4. duration
These four criteria provide a more comprehensive approach to the assessment of what constitutes
"excessive" vibration impacts (as cited by the comment) as opposed to the sole criterion of vibration
perceptibility.
An example of this is inherent in the assessment of construction noise. Construction noise would be
perceptible for hundreds of feet and, in some instances, thousands of feet. However, the mere audibility
of construction noise does not constitute an impact. As with the assessment of vibration impacts, the
same factors required for vibration assessment need to be considered. For example, if a backhoe were
used for utility trenching along a roadway during the day for four months, the noise from this activity would
be perceptible, but, due to the occurrence during the least noise sensitive portion of the day, it would not
be a significant construction noise impact. However, if this same backhoe were working in the late night
for the same amount of time to avoid causing traffic congestion, it would likely be construed as a
significant construction noise impact due to the increased sensitivity people have to noise during the late
night. The noise generation from the backhoe would remain the same, but the other factors need to be
considered in the overall assessment of vibration impacts.
Because of the importance of these four criteria, the vibration impact analysis for construction activities
does not rely solely on perceptibility to determine potential vibration impacts.
Response to Comments No. 10 -22 through 10 -27
Comments acknowledged. Refer to Responses to Comment Nos. 2 -9, 2 -36, and 4 -5. In regards to
vessel transit, vessels transit throughout Newport Harbor transit over eelgrass beds in the vicinity of
Corona del Mar, Balboa Island, Balboa Peninsula, Bay Island, and Harbor /Linda Isles, and within yacht
club basins. Except for where depths are extremely shallow (at the inner edges of docks), we have
observed no propeller scars or evidence of adverse impacts due to normal vessel movement approaching
docks. Eelgrass in the vicinity of the project dock area is located at depths between -6 to -12 ft MLLW.
These depths are sufficient for vessel transit to and from the docks without adverse impacts to eelgrass.
The commenter further expresses the opinion that the proposed dock structures are not consistent with
CLUP Policies 4.1.4 -3 and 4.2.5 -1 in that they have not been designed to avoid impacts to eelgrass to the
"greatest extent possible" and that insufficient mitigation is proposed for operation of the slips. Policy
4.1.4 -3 calls for the design of structures including floating docks over the water to "avoid impacts to
eelgrass meadows." Policy 4.2.5 -1 states; "Avoid impacts to eelgrass (Zostera marina) to the greatest
extent possible. Mitigate the loss of eelgrass at a 1.2 to 1 mitigation ratio and in accordance with the
Southern California Eelgrass Mitigation Policy. Encourage the restoration of eelgrass throughout Newport
Harbor where feasible." Both policies provide for mitigation of impacts. Refer to Responses to Comment
Nos. 2 -9, 2 -36, and 4 -5 and Section 4.7 (Biological Resources) of the DEIR for a discussion of measures
that have been incorporated within the project to avoid and mitigate impacts to eelgrass. The proposed
docks have been designed to avoid the eelgrass beds to the maximum extent while providing one slip per
unit and maintaining necessary maneuvering area between the proposed docks and nearby docks for the
safety of use. The only possible way to avoid impacts and further is to provide a smaller dock structure
thereby providing berthing for fewer boats or smaller boats. Given the nature of the propose project, this
change is not practical; however, the City Council will need to consider if the project has avoided and
mitigated impacts to eelgrass consistent with CLUP policies. In regards to potential vessel - related
impacts, vessels constantly transit throughout Newport Harbor over eelgrass beds and except where
depths are extremely shallow (at the inner edges of docks at low tides), no propeller scars or evidence of
adverse impacts due to normal vessel movement approaching docks have been observed. Eelgrass in
the vicinity of the project dock area is located at depths between -6 to -12 ft MLLW. These depths are
sufficient for vessel transit to and from the docks without adverse impacts to eelgrass.
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 50
Response to Comment Nos. 10 -28 through 10 -32
The construction work associated with the docks and gangway will not result in any significant impacts to
the sand dollar habitat or eelgrass beds. Materials associated with the disassembly and demolition of the
docks and the'over the water gangway' will be removed via a barge. The removal and repair on the upper
fixed pier walkway will be completed from the walkway level after a protective barrier (15 mil Stegowrap)
has been placed below it during construction to minimize the possibility that construction debris could
impact the marine environment. As shown in the figure associated with comment 4 -5, sand dollars have
not been identified in the sandy area near the pier walkway. That figure is based on a survey performed
in August 2008 by Coastal Resource Management. As a result, all work associated with the upper fixed
pier walkway will maintain a distance of no less than 50 feet from the sand dollar habitat.
The repair to the concrete piers will be from the sandy area below and completed during low tide. Again,
as shown in the figure associated with Response to Comment 4 -5, no sand dollars are located in this
area. Each pier area will be protected by draping a 15 mil thick Stegowrap barrier over the sand and over
the two -foot tall plywood wall that will be built around each concrete pier. All construction debris and
concrete repairs will be contained within this 'clean zone' and will be removed from the site by the
contractor by land.
The construction barge will be outfitted with the drilling equipment, storage tanks, hoists, and materials,
including the pre -cast piles. The concrete piles will be loaded onto the barge from a nearby shipyard,
which will be the material loading and off - loading venue for the entire dock project. The drilling operation
will incorporate a steel casing or sleeve around the hole to be drilled. During the drilling itself, a vacuum
hose will extract debris from the casing and pump it into a storage tank on the barge, filtering materials
from the sea water as it pumps. The concrete pre -cast pile will be hoisted from the barge into predrilled
holes. Each pile will have a full depth silt curtain placed around it during the placement operation. Finally,
the dock sections will be constructed and finished off site, delivered to the shipyard and floated to the
Aerie site for assembly. Final utility distribution and dock accessories will be in -place on the floating dock.
A marine biologist will monitor the dock demolition, pile installation and all associated rebuilding to ensure,
among other things, implementation of Best Management Practices, as specified in the Construction
Management Plan and DEIR (pages 4.7 -16, 18.) A silt screen will be placed across the entrance to the
cove where eelgrass and sand dollar beds are located. The eelgrass silt curtains will be placed under the
direction of the marine biologist for each operation. This will ensure that impacts to the intertidal marine
resources will be avoided.
Response to Comment No. 10 -33
Contrary to the commenter's contention, when the formulation of the precise means of mitigating impacts
is truly impractical at the time of project approval, the agency may devise measures that will satisfy
specific performance criteria identified at the time of project approval. (See e.g., Sacramento Old City
Assn. v. City Council, 229 Cal.App.3d 1011(1991).) The commenter notes that surveys are proposed to be
performed during the appropriate blooming window identified for each species, and argues that waiting for
that blooming season is improper under CEQA. The basis for the commenter's contention appears to be
that "all nine species are currently within their blooming window." However, the Notice of Preparation of
the DEIR was published on September 23, 2008, and preparation of the DEIR, followed by public review,
has occurred since that time. This period of preparation was not during the "blooming window' of the
species, thus rendering the precise means of identifying and mitigating impacts to these species
impractical. As a result, the CMP and the DEIR provide for a pre- construction nesting survey and a series
of focused surveys to determine presence or absence of these species. As indicated in Section 4.7
(Biological Resources), a qualified botanist shall conduct focused surveys within the appropriate blooming
windows to determine the presence or absence of these species. If during the focused surveys these
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 51
species are identified as being impacted by the development, an incidental take permit pursuant to
Section 2081 of California Fish and Game Code will be required before a grading permit may be issued.
Additionally, the proposed bluff landscaping plan incorporates native drought tolerant plant species that
must be found to be compatible and consistent with California coastal bluff environment. Thus, the legal
requirements discussed above have been satisfied. The provisions of the CMP and the DEIR constitute
the required commitment by the applicant and the City to avoid or reduce to a level of insignificance all
potential impacts to special status plant species.
Response to Comment No. 10 -34
The Construction Management Plan requires one or more off -site parking location(s) to be secured in
order to prevent construction workers from parking in the neighborhood surrounding the project site. The
project applicant will be required to secure a binding agreement to accommodate the varying number of
workers needed for each construction phase, which agreement shall be presented to the City prior to the
issuance of the permits for the phase of construction that will require the off -site parking. This agreement
must ensure that (1) the off -site parking location will commit a sufficient number of spaces to Aerie
construction workers during the relevant term, and (2) the off -site location possesses the proper permits
and authority to rent the subject spaces. Once the proper agreements are in place, two ten - passenger
shuttle vans will run up to 6 -8 trips each morning and evening and up to 5 trips at lunch time to /from the
project site and remote parking lot.
Once again, because the actual dates of construction are not now known, it is not feasible, much less
practical, for the applicant to identify specific impacts and mitigation at the time of project approval.
Although the Construction Management Plan requires that the off -site parking location(s) will be within a 5
mile radius of the project site, it is not currently known when construction will commence, therefore it is not
possible to execute binding agreements with off -site parking lot operators at this time. It is also not
possible to evaluate any site - specific environmental impacts associated with an off -site parking location
without engaging in speculation, which is prohibited by the California Environmental Quality Act.
Therefore, the applicant has agreed to a condition requiring that, if the Planning Director determines that
the operation of the off -site parking shuttle may result in one or more potentially significant environmental
impacts that have not been evaluated in this DEIR, appropriate environmental review will commence
pursuant to the California Environmental Quality Act prior to the issuance of the permit for the applicable
phase of construction. Thus, the legal requirements discussed in prior Responses have been satisfied.
The provisions of the CMP and the DEIR constitute the required commitment by the City and the applicant
to avoid or reduce to a level of insignificance all potential impacts related to off -site parking.
Response to Comment No. 10 -35
Refer to Response to Comment 8 -9. Section 2.6 (Construction Process) in the Congestion Management
Plan (CMP) included in Appendix B of the Draft EIR includes a project design feature that limits only one
truck at a time in 15 minute intervals at the project site. As indicated in the CMP, during the excavation
process, flagmen will coordinate with the project foreman at the dump site who will radio in the dump
trucks from the Olinda -Alpha Sanitary landfill. In addition, the flagmen will also coordinate ingress and
egress of cement trucks and delivery trucks during the respective construction phases. As indicated in the
CMP, these trucks would arrive at the site with no greater frequency than the discharge rate by the
contractor so that no more than one truck is on -site at one time and that trucks will not need to queue on
Carnation Avenue.
Response to Comment No. 10 -36
Refer to Responses to Comment Nos. 8 -4 and 8 -5 above. As indicated above, the CMP addresses all
aspects of the construction activities anticipated to occur, including road and safety issues. Section 4.0
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 52
(Traffic Control) identifies the haul routes, deliver requirements, and traffic control plan. Section 5.0
(Safety and Security) outlines the measures that will be implemented to ensure pedestrian safety,
including fencing, appropriate signage and safe and clean pathways to the project site. In addition, a four -
foot wide temporary crosswalk will be created across Carnation Avenue to direct pedestrians to the
existing sidewalk on the southerly side of the street, subject to the approval of the Public Works
Department.
Response to Comment No. 10 -37
The project has been designed to comply with the California Fire Code. As indicated in Section 5.5 on
page 5 -2 of the DEIR, a preliminary code compliance analysis was conducted by City staff. Based on that
analysis, the proposed building is in compliance, although a final compliance determination will be made
prior to the issuance of a building permit. If required, the project will be redesigned to address the Fir or
Building Departments' comments, including the underground parking component. The project has been
designed with several features to facilitate and enhance the provision of adequate fire protection, including
an emergency communication device, automatic fire suppression system, automatic and manual fire
alarm systems, a fire control room, a Class I wet standpipe, and other features as determined necessary
by the Newport Beach Fire Department.
Response to Comment No. 10-38
The commenter incorrectly states that the proposed project violates applicable floor area provisions. The
calculation o f the maximum allowable gross floor area based upon applicable Zoning provisions and
definitions provided with the Zoning Code (Title 20 of the Municipal Code). The maximum allowable gross
floor area for a multi -unit development is 1.75 times the buildable are of the lot. The buildable area of the
lot is defined as the lot area minus required setback areas. No provisions for the exclusion of submerged
lands from the calculation of the maximum gross floor area exist.
Response to Comment No. 10 -39
To the extent that the comment is addressing the significant environmental impacts that could result from
the granting of the approval of the modification to the setbacks, refer to Responses to Comment Nos. 3 -8,
3 -18, and 3 -23 for an explanation as to why there are no such significant impacts. To the extent that the
comment is addressing the criteria for the approval of the proposed modification, that is not an
environmental issue and no further response is necessary.
Response to Comment No. 10 -40
The construction of the dock system will not significantly impact the use of the small cove by swimmers or
kayaks. The docks are north of the entrance to the cove. Therefore, there is no impact to access or use
of the cove. The construction time frame of the docks is estimated to be from May 16 to July 10, of which
approximately three weeks will be required for the drilling operation. All construction materials and
equipment will access the dock area from the bay via barges designed for this purpose.
The California Integrated Waste Management Act of 1989 (i.e., AB 939) requires that the County must
maintain 15 years of available Countywide solid waste disposal capacity. The County's landfill system
currently has a 15 -year capacity to accommodate the proposed project. As a result, project implementation
will not result in any significant impacts on landfill capacity and, further, will not adversely affect the ability of
the existing facilities operated and maintained by the Orange County Waste & Recycling (OCW &R) to
provide adequate landfill capacity to serve the County. The Orange County landfill system has sufficient
capacity to accommodate both the proposed project and future development within the County based on
current plans and long -range capacity.
Aerie (PA 2005 -196)
Responses to Public Comments
May 2009
Page 53
The proposed dock facilities do not extend into the navigable waters of Newport Harbor. Therefore, project
implementation will not adversely affect either navigation or recreation._In addition, the barge will stage for
drilling and placement of the pre -cast piles landward of (i.e., outside) the 500' channel width and also
landward of the line of the existing navigation station north of the docks. Dock construction is outside of
the inbound general boating traffic lanes in the harbor channel.
Response to Comment No. 10 -41
This comment reflects the commenter's conclusion that summarizes the prior comments. The comment
is acknowledged; no further response is necessary.
Aerie (PA 2005196)
Responses to Public Comments
May 2009
Page 54
AERIE Harbor Permit Appeal
October 14, 2009
Exhibit 4
Public Notice
HARBOR RESOURCES
PUBLIC NOTICE
201 - 207 Carnation Avenue
Dock Replacement Protect
The project applicant at 201 — 207 Carnation Avenue is proposing a project which includes
replacement of an existing two slip dock system with a system capable of berthing nine vessels
as shown on the reverse side of this notice.
This dock replacement project will be considered by the Harbor Commission on:
Wednesday, August 13, 2008
6:00 PM
City Hall Council Chambers
3300 Newport Blvd.
The Harbor Commission is requested to advise the City's Harbor Resources Division on the
Approval in Concept which is necessary for dock replacement projects of this kind. The Harbor
Commission may also advise Harbor Resources on any proposed special conditions. The public
is invited to provide comments by attending this meeting and /or by emailing to the address
below.
Addition information will be posted to the Harbor Resources website in the coming weeks.
httt : / /www.city.newi)ort- beach. ca. us /hbr /HarborCommissionnew.html
Thank you,
Chris Miller
Harbor Resources Manager
cm i I_lera,city. newport- beach. ca. us
(949) 644 -3043
AERIE Harbor Permit Appeal
October 14, 2009
Public Outreach 310' Radius from Project
AERIE Harbor Permit Appeal
October 14, 2009
Exhibit 5
Previous Harbor Commission Staff Reports (April 8, July 8 and September 16, 2009)
CITY OF NEWPORT BEACH
HARBOR COMMISSION STAFF REPORT
Agenda Item No. 2
April 8, 2009
TO: HARBOR COMMISSION
FROM: Harbor Resources Division
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmiller @city.newport- beach.ca.us
SUBJECT: Aerie Dock Project at 201 -207 Carnation Avenue
ISSUE
Should the Aerie project applicants at 201 -207 Carnation Avenue be permitted to replace the
existing double U- shaped float with a dock system capable of berthing 8 vessels for residents
and 1 guest side -tie? A Draft Environmental Impact Report (SCH# 2007021054) has been
prepared and is available for public comment and review. The 45 -day public review period ends
on May 4, 2009 and the Draft EIR and comments received will be considered by the Planning
Commission and the City Council who will make a final determination on the adequacy of the
Draft EIR prior to taking action on the proposed dock system.
RECOMMENDED ACTION
The Harbor Commission is requested to:
Provide comments on the environmental aspects of the dock system, as well as its
overall design. Harbor Resources will forward this input to the Planning Commission
and the City Council who will review the entire project as a whole.
DISCUSSION
History
On March 12, 2008, staff sought the Harbor Commission's advice on the proposed Aerie dock
layout in order to help facilitate the environmental review that would follow. On June 19, 2008,
the Planning Commission recommended that the Mitigated Negative Declaration (environmental
review) be approved. On July 22, 2008, the City Council heard nearly three hours of testimony
and postponed their decision on the Mitigated Negative Declaration until their September 9,
2008 meeting. Relevant to the Harbor Commission's purview, much public discussion focused
on the view from the water up to the rocky bluffs, and how the vessels might impact this scenic
view. Therefore, staff was tasked with investigating this potential view issue. In addition, the
project opponents asked that the Mitigated Negative Declaration be denied and that a full
Environmental Impact Report (EIR) be prepared. Minutes from the July 22, 2008 Council
meeting may be viewed on the City's website via the Council Agenda for August 12, 2008. In
the end, the applicant chose to prepare a full EIR which is publicly available either online at:
hftp://www.city.newr)ort-beach.ca.us/PLN/proeects/l)romects.htm or at the following locations:
Planning Department
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
(959) 644 -3200
Project Location and Existing Dock System
Aerie Dock Project
April 8, 2009
Page 2
Central Library
1000 Avocado Avenue
Newport Beach, CA 92625
(949) 717 -3800
The Aerie project at 201 -207 Carnation Avenue is located near the intersection of Carnation
Avenue and Ocean Boulevard near the harbor entrance channel. See Exhibit 1. As indicated,
the Bulkhead, Pierhead and Project Lines extend beyond the nearby adjacent docks into the
channel. The reason for this unusual Harbor Line configuration is because the Army Corps of
Engineers anticipated the bay to be filled to those lines when they were established in 1936.
As the years progressed, this never materialized.
The existing floating docks (timber frame, concrete pontoons, and timber deck) are in very poor
condition and require complete replacement. These docks can accommodate four (4) small
vessels at about 25' to 30' in length. See Exhibit 2.
In June 2007, Harbor Resources requested the applicant to voluntarily demolish the existing
dock system because of its hazardous condition. The applicant expressed concern that such an
action could jeopardize his ability to construct a replacement dock system; therefore, the
deteriorated docks still remain.
Proposed Dock Layout
Eight (8) replacement slips and one (1) guest side tie dock are requested for the eight (8) new
residential units proposed. The new dock layout is located between the existing Pierhead Line
and the natural rock outcroppings, with special attention to the existing eelgrass bed on the
southern side of the property. The new docks will be composed of timber supported by
rotationally molded plastic pontoons which require less draft (bottom clearance) than concrete
floats, allowing the dock system to be located as close to the rock outcropping as possible. This
layout will accommodate boats up to 100 -feet in length. See Exhibit 3 and 4.
The current six (6) steel dock guide piles that support the existing docks will be replaced with 19
new guide piles supporting the new dock system. Of these 19 piles, nine (9) will be larger
diameter piles (approx. 2 -foot diameter) to support the long, outside, bayward -most side -tie
float. All guide piles will be pre- stressed concrete piles set in pre - drilled holes. The wave
attenuator, as previously discussed in earlier revisions, has been eliminated from the project
design.
The existing 20 -foot long gangway will be replaced by a 44 -foot gangway. The pile- supported
pier walkway between the existing gangway platform and the existing concrete pad will be
repaired / replaced with a structure in -like -kind (timber- framing system, a 2x timber deck, and
timber railings all around). The existing concrete piles supporting the walkway will be repaired in
the form of concrete repairs. The gangway platform construction will include the repair and
replacement of four (4) steel piles, timber framing with metal connectors, and a 2x timber deck
with railings all around. The existing concrete pad, concrete steps, and safety railings will be
repaired and patched as necessary.
Aerie Dock Project
April H, 2009
Page 3
As discussed at the March 2008 Harbor Commission meeting, the project engineer (URS Cash
and Associates) did evaluate several alternative dock designs before finalizing the proposal as
described in this report.
One of the Harbor Commission's concerns at the March 12, 2008 meeting was the possibility of
the new dock system encroaching upon the main harbor entrance channel. The project
engineer has attempted to illustrate that there are ten "lanes" in the entrance channel (defined
as 50' wide lanes) at the project location. As one moves further inside the harbor, these ten
lanes decrease to nine lanes as a result of the channel marker near Carnation Cove and not as
a result of the proposed docks. See Exhibit 5.
Eelgrass is also abundant near the project's edge, particularly near the southern end. See
Exhibit 6. As is typical of all dock construction projects, the applicant will submit an eelgrass
survey as part of the application process to the federal and state agencies for review. Any
impacts will mitigated.
Harbor Commission's Previous Concerns
At the March 28, 2008 Harbor Commission meeting, several concerns were discussed. The
applicant's responses to those concerns are:
Storm Wave Conditions
Under extreme conditions, up to 2.5 ft. waves could be experienced at the project site
(Noble Consultants, Inc. report, May 9, 2006), impacting 30 to 35 boats in Newport
Harbor, including those proposed at the Aerie project. This would be an uncommon
event occurring under storm conditions from the South to South East. Based on
historical accounts, some boat owners have elected to remain in their existing slips
during these extreme events, while others have moved their vessels to City of Newport
Beach - managed mooring cans within Newport Harbor. The City has between 80 to 100
mooring cans available to the public at any given time, and has traditionally made these
available to boaters on a first come, first served basis. It is understood from the Harbor
Resources Department that this practice will remain in place.
The Aerie project will utilize a wood - framed system for strength and flexibility which will
be beneficial during extreme wave conditions. The dock design shall be based on the
extreme wave conditions identified in the coastal engineering study (Noble Consultants,
Inc. 2008). A greater concern is the interaction between a berthed boat and the dock
system, since the two will move at different cycles from one another thereby causing
large line forces and potential physical impacts. During these infrequent severe
conditions, boat owners from the Aerie project, like other boat owners in Newport
Harbor, will likely request mooring cans from the City. Toward that end, Mitigation
Measure 4.9 -2a requires that "during periods when boats would be exposed to
excessive wave - induced motions, boats should be sheltered at mooring can locations
that are available inside Newport Harbor to avoid damage."
Number of Slips Provided for Project
The Aerie docks will consist of eight boat slips for the eight Aerie residences, with a
headwalk extension allowing for the potential side -tie of up to a 30 foot boat for guest
Aerie Dock Project
April 8, 2009
Page 4
use (visiting vessels). This additional guest dock extension is feasible, since the water
depth, eelgrass adjacency and navigation to the adjoining slips is not impacted by the
installation of such a dock. This slip would be used strictly for visiting boats and will not
be rented or leased.
Eelgrass and Biological Impacts
The eelgrass impact and location of the boat docks has been taken into account with the
dock location being previously shifted to mitigate the eelgrass environment. The Harbor
Resources Department has reviewed this issue in the past, made recommendations to
the Applicant, and the dock design has been revised accordingly. The potential impacts
to the eelgrass and biological habitats have been studied by Mr. Rick Ware of Coastal
Resources Management (May 12, 2008). The assessment provides for mitigation
measures before, during and after construction to ensure protection of habitat that exists
on site. With incorporation of these mitigation measures, the project's EIR concluded
that potential impacts to eelgrass and other marine species located within the Carnation
Cove will be reduced to a less than significant level.
Small boat access to Private Beach and along the Harbor's edge
Access by small and human - powered boating craft along the harbor line is currently
restricted by existing docks on the Aerie project site. Although the proposed
replacement docks would project further toward the Main Channel than the existing
docks, the fundamental navigation conditions for small and human - powered boating craft
will not undergo a meaningful change as a result of the project.
Public access to the mean high tide line of the small cove adjacent to the Aerie docks
will not be restricted by the project. Kayakers and human - powered watercraft have, and
will be able to continue to, access this cove area.
Impacts to natural environment during construction; ie, rock outcropping
The project site's waterfront area is characterized by various rock outcroppings that form
a small cove beach. These exposed outcroppings will be protected during the
installation of the Aerie docks. To this end, the applicant will not drive pilings into the
submerged bedrock, as is typical for these installations. Instead, holes will be drilled into
the subgrade (mostly rock strata) and then piles will be installed into those drilled holes.
This type of construction limits both noise and vibration.
Potential Shoaling
The Noble Consultants Inc. Report of May 6, 2008, addressed potential shoaling
conditions. This report was based on recent observations as well as a review of
historical sediment movements, storm conditions, channel orientation, maintenance
dredging and storm drainage. Noble Consultants concluded that "with a small percent
(approximately 6 percent) of the along - channel blockage areas resulting from the
proposed new dock facility, the potential impact to this unique sediment movement
process in the entrance channel is insignificant, although localized sand deposit resulting
from the presence of the proposed guide piles within the sand - moving path may occur.
In addition, the project is located in the down -drift direction of the neighboring Channel
Aerie Dock Project
April 8, 2009
Page 5
Reef, the project's potential impact on sedimentation at the up -drift location such as
Channel Reef is inconsequential."
Future Dredging
Based on the Noble Consultants Report, the impact of this project, as it relates to scour
and sedimentation, is considered to be minimal and inconsequential and should not
change the characteristics of these processes from historical experience. The beach
within the 201 -207 Carnation Cove project has historically scoured over time, requiring
sand replenishment. The China Cove property to the south has traditionally shoaled,
with dredging efforts and sand replenishment of these two facilities coinciding to a
balanced "cut and fill" condition.
Special Conditions
Staff has proposed several Special Conditions which the Harbor Commission may evaluate and
advise modifying as appropriate. Aside from the routine conditions, these unique Special
Conditions are:
In accordance with Municipal Code 10.08.030 A. the project applicant shall obtain the
proper permits for equipment and materials storage. "Except as otherwise provided in
this section, no person shall use any public street, sidewalk, alley or parkway or other
public property for the purpose of storing or displaying any equipment, materials or
merchandise, or any other commercial purpose. B. Public streets, sidewalks, alleys, or
parkways may be used for the purpose of selling, storing, or displaying any equipment,
material, merchandise or for other commercial purposes in the following cases:.. For the
temporary storage of construction equipment or material provided a permit is issued
pursuant to Chapter 12.62 of this Code and the storage is consistent with provisions of
the Uniform Building Code."
2. The contractor shall post and update a two week schedule of construction activities at a
location(s) easily accessible to local residents.
3. In accordance with Municipal Code 10.28.040 the following noise regulations apply: "A.
Weekdays and Saturdays. No person shall, while engaged in construction, remodeling,
digging, grading, demolition, painting, plastering or any other related building activity,
operate any tool, equipment or machine in a manner which produces loud noise that
disturbs, or could disturb, a person of normal sensitivity who works or resides in the
vicinity, on any weekday except between the hours of seven a.m. and six -thirty p.m., nor
on any Saturday except between the hours of eight a.m. and six p.m. B. Sundays and
Holidays. No person shall, while engaged in construction, remodeling, digging, grading,
demolition, painting, plastering or any other related building activity, operate any tool,
equipment or machine in a manner which produces loud noise that disturbs, or could
disturb, a person of normal sensitivity who works or resides in the vicinity, on any
Sunday or any federal holiday."
4. The project shall be implemented in conformance with the Local Coastal Program -
Coastal Land Use Plan.
Aerie Dock Project
April 8, 2009
Page 6
5. Eelgrass beds have been found adjacent to the project area and shall be protected per
the "Southern California Eelgrass Mitigation Policy" prepared and managed by NOAH/
National Marine Fisheries Service.
6. During construction, disturbance of the adjacent beach shall be minimized. Construction
materials and equipment shall not be placed on the beach. The beach's sand dollar
habitat shall be protected during construction. The project applicant shall submit a
Beach Protection Plan to the Harbor Resources Manager for approval prior to start of
construction.
7. The project applicant and its successors are notified that even though the proposed dock
system replaces an existing dock system, the new docks will be constructed in the
Entrance Channel to Newport Bay which is subject to surge and swell activity which may
cause damage to the dock system and vessels berthed therein. It is the responsibility of
the project applicant and its successors to maintain and operate the dock system to
minimize damage to the dock system and vessels. The dock system shall be subject to
nuisance abatement per Title 17 of the Municipal Code, if in the opinion of the Harbor
Resources Manager, it presents an endangerment to other facilities or vessels in the
harbor.
The project applicant must remove the existing dock system including the gangway and
pier within 90 days of receiving all final regulatory permits allowing the construction of
the replacement dock system.
9. The vessels that will be side -tied to the outside, bayward -most float shall not extend into
the harbor more than 24' feet from the edge of this outside, bayward -most float.
10. The guest side -tie on the north end of the dock system shall only be available for vessels
less than or equal to 30 feet in length. This slip shall be used for guest berthing only and
will not be used for any permanent, long term vessel storage, and will not be rented or
leased.
11. The number of boat slips approved in the final design must be the same as the number
of dwelling units approved by the City Council in the final project approval.
PUBLIC NOTICE
This meeting has been publicly noticed via a mailer (to the residents and occupants within a
310' radius of the project) and jobsite posting on March 23, 2009 and also posted on the City's
website on April 3, 2009. See Exhibit 7.
Written comments received as of April 3, 2009 are attached. See Exhibit 8.
This agenda item has been noticed according to the Ralph M Brown Act (72 hours in advance of
the public meetings at which the Harbor Commission considers the item). It was also posted on
the City's website.
Aerie Dock Projecl
April 8, 2009
Page 7
ENVIRONMENTAL REVIEW
An EIR (SCH# 2007021054) has been prepared for the entire project which includes both
landside and harbor improvements. The Planning Commission will consider the entire project
and will forward their recommendation to the City Council who will make a final determination as
to the adequacy of the Draft EIR. After this point, Harbor Resources staff may issue an
Approval in Concept with Special Conditions for the dock portion of the project, assuming the
EIR has been approved. If the final review process suggests substantial changes to the dock
design, then staff may return to the Harbor Commission for review in the future.
Prepared by:
Chris Miller
Harbor Resources Manager
Attachments: Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Vicinity Map
Existing Dock Layout
Proposed Dock Layout
Proposed Dock Layout with Dimensions
Proposed Dock Layout with Channel Lanes
Vicinity Map with Eelgrass
Public Notice
Public Comments as of April 3, 2009
Aerie Dock Project
April8, 2009
Page 8
Exhibit 1
Vicinity Map
14
Exhibit 3
Proposed Dock Layout
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Aerie Dock Project
April 8, 2009
Page 10
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April 8, 2009
Page 12
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Aerie Dock Project
April 8, 2009
Page 13
Exhibit 6
Vicinity Map with Eelgrass
Aerie Dock Proyeel
April 8, 2009
Page 14
Exhibit 7
Public Notice
CITY OF NEWPORT BEACH
HARBOR RESOMCES
PUBLIC NOTICE
201 - 207 Carnation Avenue
Dock Replacement Project
The project applicant at 201 — 207 Carnation Avenue is proposing a project which
Includes replacement of an existing two slip dock system capable of berthing four
vessels, with a system capable of berthing up to nine vessels. In addition, the upland
property will be rebuilt with 8 condominiums.
A Draft Environmental impact Report (DEIR) for the entire project has been prepared
and is available either online at: htb):/Ayww.cKv,newyorI-
beach,ce.us/131-N/oropects/pro ects.htm or at the following locations:
Planning Department Central Library
3300 Newport Boulevard 1000 Avocado Avenue
Newport Beach, CA 92658.8915 Newport Beach, CA 92625
(959) 644 -3200 (949) 717 -8600
During the EIR public review period, the Harbor Commission Is requested to evaluate
the DEIR and advise the City's Harbor Resources Division on the Approval in Concept
for the dock replacement portion of the proiecl only. The public is invited to provide
comments by attending this meeting and/or emailing to the address below. The meeting
will be held on:
Wednesday, April 8, 2009
8:00 PM
City Half Council Chambers
3300 Newport Boulevard
The Harbor Commission agenda and staff report will be available online by April 3, 2009,
at hlto:lAvww.citv.newoort• beach. ca. uslhbr /HarborCommissionnew.hlml
The Planning Commission will be conducting a noticed public hearing on the DEIR for
the entire project in May or June of 2009. Notice of said hearing will be separately
provided in accordance with applicable law when the hearing dates are known.
Chris Miller, Harbor Resources Manager
cmiller ().city.newpprt- beach.ca.us
829 Plarbor Island Drive, Newport Beach, CA 92660
PH: (949) 644 -3634 FX: (949) 723 -0589 . Website: www- newirort- beach.ca.us1RBRJ
Aerie Dock Project
April 8, 2009
Page /5
Public Outreach 310' Radius from Project
Exhibit 8
Public Comments as of April 3, 2009
August 4, 2008
Dear Mr. Miller;
Aerie Dock Project
April 8, 2009
Page 16
I hope the members of the Harbor Commission are not seriously considering a dock
configuration in its present size and design at this location of Carnation Cove. I live above the
Cove to the east, and have resided here for 18 years and in this area most of my life.
I am going to attempt to bring to light the many factors why I feel the existing dock should be
rebuilt in its present location, with possibly one more alongside, which are presented in the
following comments.
A) An obsolete 78 -year old law enacted in 1930 when the Pierhead line was established for this
area should not apply today with 13,000 -plus yachts in this harbor.
B) This dock configuration would allow two 60' yachts to be docked on the other side of this
Pierhead line projecting another 20' to 25' further into the harbor.
C) The dock should stay within the bulkhead line as the McIntosh dock is to the east and the
Sprague dock is to the west.
D) The present plan would project approximately 61' beyond the bulkhead line, with two 60'
boats in their slips. (Note, all calculations are from the Harbor Commission Public Notice Plans.)
E) When exiting the harbor, the channel narrows starting at the Sprague dock to the west and
continues to the mouth of Newport Harbor.
F) Carnation Cove is within this narrow area, and with this project plan projecting out into the
harbor it will be a hindrance to navigation for boats entering and leaving the harbor.
G) Another consideration should be the many sailboats, large and small, that use this point to
come about - tacking within the harbor.
Now let us consider the environmental impacts.
1) 1 am requesting a full Environmental Impact Report to be done on this project.
2) In a recent City Council meeting on the Aerie Project the city attorney called the rock
formation running parallel to the dock project "A Natural Relic" and the MND report states that
"Carnation Cove is an important Marine Relic Habitat that no longer exists in other areas of
Newport Bay."
3) Eight to nine boats, two -40', two -45', two -55' and two -60' boats, with an occasional guest
vessel at dock #9 would almost completely cover the natural rock formation as it would be out of
view to the Public and all boaters who enjoy the beauty of the harbor.
Aerie Dock Project
April 8, 2009
Page 17
4) Directly in front of the cove is a favorite spot for rental boats from the Pavilion as well as other
small boats fishing in the harbor. (They do catch fish here.)
5) The rock formation and cove is a habitat for heron, cranes, pelicans, seagulls and
occasionally osprey, all which abound here.
6) There are only two natural rock formations surrounded by water in Newport Harbor,
Carnation Cove and Pirates Cove just to the east.
7) Another consideration is disturbing the Eel Grass and marine habitat below the water.
8) The project would close off or potentially eliminate public access to the cove which is often
frequented by kayakers, paddlers and small boats.
Last of all is the 155' long, 8' wide concrete wave attenuator that projects into the harbor.
1) There is a history of sand build -up along the Channel Reef Seawall and docks that continues
west to the McIntosh Dock. The attenuator wall would most probably create the same problem
and could also affect vessel navigation with shallowing of the harbor depth.
2) It could also create wave bounce off the attenuator wall that would affect docks across the
bay and farther into the harbor, in particular when dealing with a south swell, as the rock
formation as it exists acts as a natural wave diffuser.
If this all sounds negative, it's because it is. This project is not in the best interest of the harbor,
boaters or the public, and will negatively impact the community of Newport Beach. It will also
affect our children and the future of all who enjoy the beauty and use of this harbor.
I thank you for reading this and am hopeful you will take this project quite seriously.
Sincerely,
Joe Vallejo
CITY OF NEWPORT BEACH
HARBOR COMMISSION STAFF REPORT
Agenda Item No. 2
July 8, 2009
TO: HARBOR COMMISSION
FROM: Harbor Resources Division
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmiller @city.newport- beach.ca.us
SUBJECT: Appeal — Aerie Dock Project at 201 -207 Carnation Avenue
ISSUE
Should the Aerie project applicants at 201 -207 Carnation Avenue be permitted to replace the
existing double U- shaped float with a dock system capable of berthing 8 vessels for residents and 1
guest side -tie? Based on the recent findings of the Harbor Commission Aerie Task Force, the
applicant is appealing the Harbor Commission's April 2009 review which concluded the project does
create a significant impact on navigation and recreational boating in the harbor.
RECOMMENDED ACTION
The Harbor Commission is requested to
Review the findings of the Harbor Commission Aerie Task Force and provide comments on
the dock system's overall design. Harbor Resources will forward this input to the City
Council who will review the entire project as a whole.
DISCUSSION
On April 8, 2009, the Harbor Commission reviewed the dock portion of the Aerie project along with
the Environmental Impact Report (EIR). There was much discussion from the Commission and the
public about the impact that this proposed dock system would have on navigation in the Entrance
Channel. As a result, the Commission made an advisory motion which was: "While not opposed to
the expansion of the existing dock and its area and capacity, we believe the size and configuration of
the proposed dock would create a negative impact on navigation and recreational boating in the
harbor." However, the Harbor Commission offered to assist the applicant in further refining their
dock design. The original staff report and minutes of the April Harbor Commission meeting are
available online at: htt�: / /www.citv.newoort -
beach.ca.us/hbr/HarborCommissionAgendas/HarborCom.asp
Subsequently, at the May Harbor Commission meeting, an Aerie Task Force was formed with three
members of the Commission: Marshall Duffield, John Corrough and Don Lawrenz. On May 30,
2009, the Task Force visited the site, along with the applicant, and completed a field survey of the
existing and proposed dock layout. Their completed report is attached in Exhibit 8. The Task Force
presented their findings at the June 10, 2009 Harbor Commission meeting at which time the
applicant requested his project be appealed and reconsidered by the full Commission.
Aerie Dock Projec!
April 8, 2009
Page 2
Special Conditions
To refresh, staff has proposed several Special Conditions which the Harbor Commission may
evaluate and advise modifying as appropriate. Aside from the routine conditions, these unique
Special Conditions are:
In accordance with Municipal Code 10.08.030 A. the project applicant shall obtain the proper
permits for equipment and materials storage. "Except as otherwise provided in this section,
no person shall use any public street, sidewalk, alley or parkway or other public property for
the purpose of storing or displaying any equipment, materials or merchandise, or any other
commercial purpose. B. Public streets, sidewalks, alleys, or parkways may be used for the
purpose of selling, storing, or displaying any equipment, material, merchandise or for other
commercial purposes in the following cases:.. For the temporary storage of construction
equipment or material provided a permit is issued pursuant to Chapter 12.62 of this Code
and the storage is consistent with provisions of the Uniform Building Code."
2. The contractor shall post and update a two week schedule of construction activities at a
location(s) easily accessible to local residents.
3. In accordance with Municipal Code 10.28.040 the following noise regulations apply: "A.
Weekdays and Saturdays. No person shall, while engaged in construction, remodeling,
digging, grading, demolition, painting, plastering or any other related building activity, operate
any tool, equipment or machine in a manner which produces loud noise that disturbs, or
could disturb, a person of normal sensitivity who works or resides in the vicinity, on any
weekday except between the hours of seven a.m. and six -thirty p.m., nor on any Saturday
except between the hours of eight a.m. and six p.m. B. Sundays and Holidays. No person
shall, while engaged in construction, remodeling, digging, grading, demolition, painting,
plastering or any other related building activity, operate any tool, equipment or machine in a
manner which produces loud noise that disturbs, or could disturb, a person of normal
sensitivity who works or resides in the vicinity, on any Sunday or any federal holiday."
4. The project shall be implemented in conformance with the Local Coastal Program - Coastal
Land Use Plan.
5. Eelgrass beds have been found adjacent to the project area and shall be protected per the
"Southern California Eelgrass Mitigation Policy" prepared and managed by NOAA/ National
Marine Fisheries Service.
6. During construction, disturbance of the adjacent beach shall be minimized. Construction
materials and equipment shall not be placed on the beach. The beach's sand dollar habitat
shall be protected during construction. The project applicant shall submit a Beach Protection
Plan to the Harbor Resources Manager for approval prior to start of construction.
7. The project applicant and its successors are notified that even though the proposed dock
system replaces an existing dock system, the new docks will be constructed in the Entrance
Channel to Newport Bay which is subject to surge and swell activity which may cause
damage to the dock system and vessels berthed therein. It is the responsibility of the project
applicant and its successors to maintain and operate the dock system to minimize damage to
the dock system and vessels. The dock system shall be subject to nuisance abatement per
Title 17 of the Municipal Code, if in the opinion of the Harbor Resources Manager, it presents
an endangerment to other facilities or vessels in the harbor.
Aerie Dock Project
April 8. 2009
Page 3
8. The project applicant must remove the existing dock system including the gangway and pier
within 90 days of receiving all final regulatory permits allowing the construction of the
replacement dock system.
9. The vessels that will be side -tied to the outside, bayward -most float shall not extend into the
harbor more than 24' feet from the edge of this outside, bayward -most float.
10. The guest side -tie on the north end of the dock system shall only be available for vessels
less than or equal to 30 feet in length. This slip shall be used for guest berthing only and will
not be used for any permanent, long term vessel storage, and will not be rented or leased.
11. The number of boat slips approved in the final design must be the same as the number of
dwelling units approved by the City Council in the final project approval.
PUBLIC NOTICE
This meeting has been publicly noticed via a mailer (to the residents and occupants within a 310'
radius of the project) and jobsite posting on June 23, 2009 and also posted on the City's website on
July 2, 2009. See Exhibit 7.
This agenda item has been noticed according to the Ralph M Brown Act (72 hours in advance of the
public meetings at which the Harbor Commission considers the item). It was also posted on the
City's website.
ENVIRONMENTAL REVIEW
An EIR (SCH# 2007021054) has been prepared for the entire project which includes both landside
and harbor improvements. The City Council will make the final determination as to the adequacy of
the EIR. After this point, Harbor Resources staff may issue an Approval in Concept with Special
Conditions for the dock portion of the project, assuming the EIR has been approved. If the final
review process suggests substantial changes to the dock design, then staff may return to the Harbor
Commission for review in the future.
Prepared by:
Chris Miller
Harbor Resources Manager
Attachments: Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Exhibit 7:
Exhibit 8:
Vicinity Map
Existing Dock Layout
Proposed Dock Layout
Proposed Dock Layout with Dimensions
Proposed Dock Layout with Channel Lanes
Vicinity Map with Eelgrass
Public Notice
Aerie Task Force Field Survey
Aerie Dock Project
April 8, 2009
Page 4
Exhibit 1
Vicinity Map
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April 8, 2009
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April 8, 2009
Page 7
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Aerie Dock Project
April 8, 2009
Page 8
Exhibit 5
Proposed Dock Layout with Channel Lanes
Aerie Dock Project
April 8, 2009
Page 9
Exhibit 6
Vicinity Map with Eelgrass
Aerie Dock Project
April 8, 2009
Page 10
Exhibit 7
Public Notice
CITY OF NEWPORT BEACH
HARBOR RESOURCES
PUBLIC NOTICE
201 - 207 Carnation Avenue
Dock Replacement Project
The project applicant at 201 — 207 Carnation Avenue (Aerie) is proposing a
project which includes replacement of an existing two slip dock system capable
of berthing four vessels, with a system capable of berthing up to nine vessels. In
addition, the upland property will be rebuilt with 8 condominiums. The Harbor
Commission has been asked to advise the City Council on the dock replacement
ortion of the i3rokect only.
The Harbor Commission previously considered this project on April 8, 2009 and
they had concerns about the dock's impact on navigation and recreational
boating In the harbor. A Harbor Commission Task Force was subsequently
formed to further study the proposal and possible alternatives. At the June 10,
2009 Harbor Commission meeting, the Task Force concluded that the project
does comply with the harbor requirements and does not create a significant
impact on navigation and recreational boating in the harbor.
Therefore, the project applicant is appealing the project for the entire Harbor
Commission to reconsider. The Harbor Commission will hear this matter on:
Wednesday, July 8, 2009
6:00 PM
City Hall Council Chambers
3300 Newport Boulevard
The Harbor Commission agenda and staff report will be available online by July
2, 2009, at: http : //wwv city newport• beach ca usthbr /HarborCommissionnew html
Chris Miller, Harbor Resources Manager
cnii(ler@city.newport-beaettca.us
829 Harbor island Drive, Newport Beach, CA 92660
pit: (949) 644 -3034 FX: (949) 723.0589 . K'ebsite: www.newport- beach.ca.us /IiHR/
Aerie Dock Project
April 8, 2009
Page 11
Public Outreach 310' Radius from Project
Aerie Dock Project
April 8, 2009
Page 12
Exhibit 8
Aerie Task Force Field Survey
Harbor Commission Aerie Docks Subcommittee Field Survey Memorandum
Background
At the April 8, 2009 Newport Beach Harbor Commission meeting, an advisory motion was
passed unanimously that stated:
" While not opposed to the expansion of the existing dock and its area and capacity,
we believe the size and configuration of the proposed dock project would create
significant negative impact on navigation and recreational boating in the harbor."
Unresolved Issues
Subsequent discussion among the Commissioners during this meeting, and during a visit by
three commissioners to the site (Rodheim, Chairman Duffield & Corrough) indicated that
there were a number of unresolved issues and internal HC disagreements with regard to the
actual potential extent to which the project might "...create significant negative impact on
navigation and recreational boating in the harbor ", versus a "perceived /speculated" impact.
Subcommittee Created to Perform Field Survey
As a result, an Aerie Docks HC subcommittee was created, comprised of 3 Commissioners
(Chairman Duffield, Lawrenz, Corrough) , who were self- tasked with creating an on -water
survey and simulated layout ( with properly located and anchored buoys) of the marina,
based upon the current engineering drawings for the project, to examine these HC concerns.
Intent and Scope of Survey
The intent of this survey was to visually and physically illustrate, with a high degree of
accuracy on the project water area, the actual physical relationship of the proposed dock
system to the following specific elements of navigation and water area definition:
a. The existing 3 -slip dock system to be removed and replaced, new pier access;
b. The existing 500' Federal navigation channel as defined in navigation charts and
the engineering plans, the Federal /City Project Line (east channel edge) and the
existing Federal navigation aid "R6" consisting of a vertical steel pole , red triangular
daymark and light signal with the characteristics Fl R 4S 3M;
c. The existing adjacent docks and water areas whose position and
navigational approaches were considered and incorporated in the overall proposed
new dock configuration, as well as other existing docks in the Carnation Cove area for
which the City/ HC have granted approvals;
d. The existing City Bulkhead Line, Pierhead Line, and Federal Project Line as
shown on the project engineering drawings and City documentation of the proposed
docks, and the actual use of the navigation channel and adjacent waters;
e. The existing Shoal Buoy and shoal to the south, roughly on the Pierhead Line;
Additionally, the continuing general accessibility to the water areas between the navigation
channel and the proposed docks /docked vessels as well as the water areas adjacent to and
behind these proposed docks /vessels for use by various types of watercraft ranging from
small vessels engaged in fishing, kayaks, sailboats and powerboats was informally assessed.
Conduct of Field Survey
On Saturday May 30`x', 2009, the Aerie Docks Field Survey was conducted at the project site
and in surrounding waters from approximately 12:30 PM to 3:30 PM.
Conditions were overcast, wind S /SW at approx. 6 -8 knots, tide slack at start (12:30), rising to
a day high of +47 at approx. 2:15 PM, creating an estimated 0.8 knot flood current during
survey.
In attendance were:
- Chairman Marshall Duffield with an 18' Duffy, digital camera
- Commissioner Donald Lawrenz with a 13' Whaler, 150' tape measure, 3 buoys with
anchor tackle, compass and depth sounder, digital camera
- Commissioner John Corrough with project drawings, aerial photos, handheld CPS,
handheld bearing compass, digital camera
- Rick Julian, project developer, who assisted from on the existing docks
Prior to the on -water survey activities, a discussion of process and measurements was held,
using the project engineering /EIR materials (plans, aerial photos; etc. showing proposed
dock locations, dimensions and the various Harbor Lines. (see attached drawings & photos)
The following control dimensions (from the URS engineering layout of the proposed docks)
were established and utilized in the survey: (see attached drawings & photos)
- 53.5' ( +/- 05) distance from the channelward edge of the existing center dock float
(of three) on a magnetic bearing of 270 deg. ( +/- 2 deg.) was to be used as a baseline
for the location of Buoy #1 (15" dayglow red round plastic buoy) to mark the
channelward NW corner of the proposed outer dock;
- 24.0' ( +/- 0.5') distance, on on a magnetic bearing of 270 deg. ( + / -1 deg.), beyond the
location of Buoy 91 was to be used as the location of Buoy #2 (6" dayglow red "pot"
buoy) to mark the chamlelward edge of the 24' side -tie allowed along the channel
face of the proposed outer dock;
- 155' ( +/- 0.5') distance, on on a magnetic bearing of 180 deg. ( +/- 1 deg.), from the
location of Buoy #1 was to be used as the location of Buoy #3 (6" dayglow red "pot"
buoy) to mark the channelward SE corner of the proposed outer dock.
The on -water placement of the buoys in the locations described above was accomplished by
Commissioners Lawrenz and Duffield using the Whaler, with Commisioner Corrough
confirming bearings and distances from the baseline point on the existing center dock.
Commissioner Lawrenz utilized adjustable anchor rodes on the buoys to properly position
them in relation to current and anchor position, within the required locational parameters.
Distances and positions were again confirmed after placement, using the tape and hand
bearing compass, as well as the Whaler compass. Use of CPS for further location was
considered redundant and no position recordings were taken. Buoys were in position at
approximately 1:30 PM. (see attached drawings and photos)
Photographs of buoy locations and surrounding waters and landmarks were taken from the
Duffy by Commissioners Corrough and Duffield, and from simulated approaches along the
eastern edge of the navigation channel along both Project Line and Pierhead Line courses of
approximately 150 degree (inbound course) view and 330 degree reciprocal view magnetic
headings. (see photos)
Additional photos were taken from approximate 90 and 120 degree magnetic sailboat tack
headings approaching the proposed dock locations (and reciprocals from the existing docks)
to determine the potential effect on sailboats using the of water to be occupied by potential
new docks and berth vessels, and the amount of water area potentially remaining available
for tacking. No significant effect other than an 80' -90' shortening of the inbound 600'+ tack
was noted- other tacks on either side of the dock ends could continue as deeply into the site
as present, with the docks in place.
Ability for small, shallow -draft vessels to continue to approach /use the beach and to view
the bluff bottom rock formations was also assessed informally and determined to be retained.
Observations from the existing docks by various Commissioners informally noted the
courses and actions of vessels approaching and passing by /through the proposed dock area
denoted by the buoys included sail and power vessels within the navigation channel , sail
vessels outside the east edge of the channel (OCC Shields on an inbound tight beat course),
and outbound kayaks and inbound rental fishing boats. No deviation was required.
Buoys and anchor tackle were recovered from their positions at approximately 2:45 PM.
Photographs from the top of the bluff overlooking the existing and future docks site and
marker buoys were taken by Commissioner Duffield after the on -water survey. (see photos)
The on -site survey activities were concluded at approximately 3:30 and all Commissioners
and vessels departed the site.
Aerie Docks Project Site Survey Findings and Conclusions
1. The proposed docks and their end -tied vessels would not present a direct navigational
hazard to any vessels transiting within the established and marked 500' wide Newport
Harbor federal navigation channel, and are located well outside the channel /Project Line
boundary. This location /configuration complies with existing Newport Beach, federal laws.
2. The proposed docks and their end -tied vessels retain at least a 21'+ clear water buffer
between the edge of the channel as defined by the Project Line and the nearest/ largest
permitted berthed vessel in the project. Small vessels (30' and under) typically meandering
inbound or outbound through the open water area. between the navigation charnel and the
project's docks and berthed vessels would continue to have adequate safe clearance between
channel traffic and the project's largest berthed vessel for fishing, kayaking, canoeing, etc.
3. The proposed docks and their end -tied vessels would be located (and would appear) well
inside (estimated 70' -80') a typical straight -line inbound course taken by a vessel to clear (by
50' apx.) the existing moored bait barge and the R6 fixed navigation mark, which is a typical
day or n.ite inbound course and navigational waypoint (R6) during the high- traffic surnmer
season when there is increased outbound and inbound traffic present. This continues the
existing historic and necessary use of the navigation channel along this portion of its length
4. The "narrowest point of the harbor" for safe /official navigational purposes is not at the
project site nor is it created by the design construction and use proposed project, but rather
occurs some 350' to the North beyond the proposed project area where the R6 mark marks
the bend and narrowing of the channel to the NW. Inbound vessels navigating outside the
eastern edge of the navigation channel and to the east of the R6 mark will encounter the
County mooring field and private docks and shoreline extending from Carnation. Cove
beyond which block their route and will typically turn well before the R6 mark. This
5. The design of the proposed docks and their berthed vessels would retain continued direct
public- waters access and views to the existing beach by small beachable vessels (kayaks,etc.)
and retain shallow water access and views to the bluff and the distinctive rock formation
through an 88' wide channel to the north of the docks and an 80' wide.channel to the south,
both opening up to wider water areas and views as these areas are entered on passed by
vessels. These design elements appear to comply with the Draft EIR and with City State and
Summary Conclusion:
Based upon the field survey and analysis effort and its findings stated above, it is the
unanimous opinion of the Harbor Commission Aerie Docks Survey Subcommittee that
Subcommittee Cautionary Note:
The preliminary ayout and design of the proposed dock system and its structural pilings
appears to comply with accepted professional marine engineering practice and the
recommendations of the various technical studies for a project of this type on this site. The
project has accordingly received preliminary City Approval in Concept (with a number of
conditions). The owner, through acceptance of these conditions must acknowledge and
events which may exceed even the storm - resistant design parameters of the docks. The
owner /developer has agreed to certain operational and management procedures for the
proposed docks and berthed vessels including warnings to and required vessel relocation
by the vessel owners, and other procedures, in case of an impending severe storm event.
Aerie Docks Relationship to Navigation Channel & Harbor Lines
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Inbound Course View at Shoal Buoy- Buoy #1 Above Shoal Buoy, #2 to left, #3 right
View on Reciprocal of Project Line Inbound Course, Buoys #1,2,3 to Left of Mark 6
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Buoys #1 & # 2 and Existing Docks, View From Pier End
Buoy #3 and Adjacent pocks, View From Pier End
Buoys #1 & # 2 and Existing Docks, View From Pier End
Buoy #3 and Adjacent pocks, View From Pier End
TO:
FROM:
SUBJECT:
CITY OF NEWPORT BEACH
HARBOR COMMISSION STAFF REPORT
Agenda Item No. 1
September 16, 2009
HARBOR COMMISSION
Harbor Resources Division
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmiller newoortbeachca.gov
AERIE Dock Structure at 201 -207 Carnation Avenue — Continue Item
ISSUE
The AERIE applicant has requested that the Harbor Permit / Approval in Concept appeal be
continued to the date certain Harbor Commission meeting on October 14, 2009.
RECOMMENDATION
The Harbor Commission may:
1. Continue the AERIE appeal to the October 14, 2009 Harbor Commission meeting.
DISCUSSION
The AERIE applicant has requested that the appeal which was brought forth by an opponent to the
project, be continued until the October 14, 2009 regular Harbor Commission meeting date. The
applicant's reason is because two Commissioners will be absent from the September 16 meeting.
All Commissioners are expected to be present in October.
PUBLIC NOTICE
This meeting has been publicly noticed via a mailer (to the residents and occupants within a 310'
radius of the project) along with a jobsite posting on August 27, 2009. It was also posted on the
City's website on September 11, 2009.
This agenda item has been noticed according to th e
public meetings at which the Harbor Commission
City's website.
ENVIRONMENTAL REVIEW
Ralph M Brown Act (72 hours in advance of the
considers the item). It was also posted on the
The Harbor Commission's approval to continue the item does not require environmental review.
Prepared by:
Chris Miller
Harbor Resources Manager
Attachments: Exhibit 1: Public Notice
Aerie Dock Project
April 8, 2009
Page 2
Exhibit 1
Public Notice
Public Outreach 310' Radius from Project
Aerie Dock Project
April 8, 2009
Page 3
CITY OF NEWPORT BEACH
IIARBOR RESOURCES
PUBLIC NOTICE
201 - 207 Carnation Avenue
Dock Replacement Project
The project applicant at 201 — 207 Carnation Avenue {AERIE) is proposing a
project which includes replacement of an existing two slip dock system capable
of berthing four vessels, with a system capable of berthing up to nine vessels. In
addition, the upland property will be rebuilt with 8 condominiums.
The Harbor Commission previously considered this project on July 8, 2009 and
the City Council subsequently approved the project on July 14. Harbor
Resources then issued an Approval in Concept / Harbor Permit on July 31.
On August t3, there was a request to appeal the Harbor Permit to the Harbor
Commission. Therefore, the Harbor Commission will hear this matter on:
Wednesday, September 16, 2009
6 :00 PM
City Hall Council Chambers
3300 Newport Boulevard
The Harbor Commission agenda and staff report will be available online by
September 11, 2009 at ht to:// www. newportbeachca .govriindex.aspx?oage =963
Chris Miller, Harbor Resources Manager
cmill erAnewoortbeachca.gov
August 27, 2009
829 Harbor tslaad Drive, Newport Beach, CA. 92660
PH: (949) 644 -3034 SX: (949) 723 -0589 • Website: w v newportbeachca.gae