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HomeMy WebLinkAbout10 - Land Use Entitlement Applications for the Residences at 4400 Von Karman Project (PA2020-061) - Correspondence - Koll Property AttorneyGeoff Willis, a pmfessi-al wrpomlion The Law Offices of Geoffrey Willis 9891 Irvine Center Drive, Suite 200 Irvine, CA 92618 (949) 374-3815 gwillis@geoffwillisla.w.com January 11, 2021 Via Email and First Class Mail Mayor Brad Avery and City Councilmembers City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: Opposition to Approval of the Residences at 4400 Von Karman To The City Council of the City of Newport Beach: I represent Olen Properties, the owner of the property located at 4910 Birch Street in Koll Center in the City of Newport Beach. Olen Properties has been a strong member of the Newport Beach family for over forty years. This letter is in opposition to the noticed hearing on the Residences at 4400 Von Karman (the "Project") and specifically opposes the use of Addendum No. 4 to the City of Newport Beach General Plan Update, Environmental Impact Report (SCH No. 2006011119)[PA2020-06], as well as the supporting and underlying land use approvals. These challenged land use approvals include a Major Site Development Review, a Lot Line Adjustment, and Affordable Housing Implementation Plan, a Traffic Study and a Development Agreement. The City of Newport Beach (the "City") is attempting to improperly use an Addendum to "tier" off of a prior 2006 General Plan Environmental Impact Report ("EIR") for the residential Project from applicant TPG (KCN) Acquisition, LLC ("Picerne.") Picerne is working with the assistance of the Koll Company, the current Declarant of the Koll Business Park ("KBP") which is the proposed site of a new 312 unit residential development. As will be shown at length below, the Addendum fails completely as an adequate document under the California Environmental Quality Act ("CEQA"). CEQA's Role as Conduit of Critical Project Information for the Public CEQA compliance is a critical component of any City's land use approval process and is intended to benefit the public and decision makers. CEQA describes an EIR as "an informational document which... shall be considered by every public agency prior to its approval or disapproval of a project." (Cal.Pub.Res Code § 21061.) The purpose of an EIR is to provide the public and public agencies "with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." (Ibid.) CEQA's fundamental objective is "to ensure 'that environmental considerations play a significant role in governmental decision-making."' (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779. To facilitate CEQA's informational role, a legally compliant CEQA document must contain facts and analysis, not just the agency's bare conclusions or opinions. This requirement enables the decision -makers and the public to make an "independent, reasoned judgment about a proposed project. (Santiago County Water Dist. v. County of Orange 1981 118 Ca1.A 11 3d 818, 831; People v. County of Kern 1974 39 Cal.A 3d 830, 841 ( ) pp• p n' ( ) pp• (requirement of detail in EIR "'helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug."'); (See also Cal. Admin. Code, tit. 14, § 15151.) "Public participation is an essential part of the CEQA process" (Cal. Admin. Code, tit. 14, § 15201), and several CEQA provisions recognize its importance. By avoiding the required preparation of an EIR, the City bypassed the requirement for EIRs that it be circulated for 45 days for public comment. By using an Addendum, the City and the applicant improperly bypassed the required comment period depriving the public of the ability to meaningfully participate. Attached to this letter and fully incorporated by this reference are letters from Nicole Criste of Terra Nova Planning & Research, Inc. dated January 11, 2021, and from Steve Figgins, a hydrogeologist from EKI Consulting dated January 11, 2021. 1. The Addendum is Legally Inadequate for Multiple Reasons In this case, the City's use of an Addendum fails and, at a minimum, a Subsequent EIR should be required for the Project. The City's use of an Addendum for the Project fails for multiple reasons. First, the Project Description is fatally defective in that it underestimates actual approved build- out by 534 units, fails to mention the operational hurdles caused by the Covenants, Conditions & Restrictions ("CC&Rs") governing the Project area, fails to analyze or consider the supportive retail uses, fails to describe a major soils staging area, inadequately undertakes storm flow analysis, and improperly handles off-site parking. Second, an Addendum can only be used to correct or fill in "minor technical corrections" or "minor changes" to the prior EIR. The City's Addendum is almost 200 pages long, contains multiple mandatory CEQA subject matter that were never previously considered, and were never included in the prior EIR. These are not corrections of "minor technical changes," these are massive changes that create an entirely independent document that illegally bypassed the public circulation and comment process that would have been required for an EIR. Case law has also applied the "Subsequent EIR" standard to the use of a CEQA Addendum which requires an EIR to be prepared if: 1) There are new facts not known at the time of the adoption of the original EIR that could have a significant impact on the environment; or 2) There are significant changes to the circumstances surrounding the Project that could cause a significant impact on the environment; or 3) There are substantial changes in the severity or intensity of the Project. (California Pub. Res. Code Section 21166.) If ANY of these tests are met, the Addendum fails as a matter of law. In the present case, the use of the Addendum fails all of these tests and an EIR should be prepared. In addition, "[t]he tiering process may not be used when a project is not consistent with a program, plan, policy or ordinance for which the prior EIR was prepared." (See Sierra Club County of Sonoma (1992) 6 Cal.App.41 1307.) Ironically, the City of Newport Beach cited this exact language when the City of Irvine attempted to tier off of its General Plan EIR relating to the Irvine Business Complex ("IBC"). (City of Newport Beach v. City of Irvine, et al., Petitioners' Opening Brief in Support of Petition for Writ of Mandate and Complaint for Declaratory Relief, pp. 4-5.) In the present case, there are multiple major inconsistencies between the General Plan EIR and the proposed Project including development intensity, consistency and compatibility of uses, traffic, aesthetics and many others. Interestingly, in the 2008 CEQA litigation involving the City of Irvine, the City of Newport Beach vehemently objected to the City of Irvine's practice of using an CEQA Addendum to the City of Irvine's General Plan to approve residential projects within the IBC: "Initially, Irvine prepared addenda to the IBC Program Environmental Impact Report ("PEIR") for each project as a means of satisfying its obligations under CEQA. From 2001 to 2004, Irvine conducted environmental review in this manner for at least 11 residential and mixed use projects in the IBC. Newport Beach objected to this practice, and Irvine stopped." (City of Newport Beach v. City of Irvine, et al., Petitioners' Opening Brief in Support of Petition for Writ of Mandate and Complaint for Declaratory Relief, pp. 4-5.) Finally, the Project is infected with an approval that is void because it was made in violation of the Brown Act in that interested citizens were excluded from participating in an important approval for this Project. Unless it is corrected by the City prior to voting on the Addendum and other approvals, approval of the Addendum will be fatally defective. 2. The Project Description is Incomplete and Fatally Defective The Addendum under -estimates actual approved build -out potential by 534 units. This is a substantially larger number of units than originally contemplated by in the General Plan and constitutes a substantial change in circumstances surrounding the Project. As a result of this significant undercounting, the Addendum does not consider the impacts of build -out of the Project when considering other projects, and fails to properly consider cumulative impacts. In addition, the Project Description makes no mention of the significant CEQA issues raised by the implementation of compliance with the CC&Rs governing the development of the Project. These impacts include inconsistency with the terms of the CC&Rs involving on -grade parking requirements, inadequately described parking and internal traffic circulation, control and separation, and illegal use of common areas over the proper objections of the existing owners of the common area among other arguments. In addition, the CC&Rs require harmonious incorporation of new development and focus on the rights of the existing building owners. In the present case, the Project focuses on the rights of a proposed new building and ignores the significant disharmony suffered by the existing building owners as detailed in this letter. The Project as proposed would further violate the CC&Rs in that there is a significant shortage of parking during construction in clear violation of the requirements of the CC&Rs. All of these issues materially impact the Project and render the Project Description insufficient and legally unsupported. In addition, in its amendment to the Integrated Conceptual Development Plan ("ICDP,") it is claimed the Project has supportive retail uses. The truth is that there actually aren't any supportive retail uses and there is no analysis of these supportive retail uses in the Addendum and their impacts are neither conditioned nor mitigated in violation of CEQA. The Project requires a staging area for materials storage of 114,000 cubic yards of excavated soil, the loss of parking for existing businesses for multiple years, and other construction activities. Since the phasing of the Project does not allow for the reduction in parking spaces beyond that described in the Phasing Plan, and since the Project proponent does not control any additional areas, off-site staging and parking must be assumed. Despite all of this, no staging areas or parking areas are described in the Project Description, or are analyzed anywhere in the Addendum. This failure of analysis infects the entirety of the analysis of the Addendum. Also, the Addendum states that the 114,000 cubic yards of dirt that will be excavated from the site will be exported and dumped off-site. In the Air Quality model, a distance of 20 miles is assumed for this theoretical export site, which would necessarily mean that it is not in Newport Beach and was not analyzed in the General Plan EIR. The CEQA analysis for this project must consider the whole of the action, including the impacts to the export site. Its location must be disclosed in the document, and the impacts of hauling such a large quantity of soil to the site analyzed. The Project Description is also fatally defective in the way it fails to describe how the site will manage storm flows. While there are vague statements made in the Hydrology Section that the Project will drain to Von Karman Avenue for "south of the high point" and to an existing 60" storm drain east of the 5000 Birch Street Building "north of the high point." There is no discussion of what the on-site drainage system consists of, nor whether the Project's storm flows will discharge into the existing storm water management ponds surrounding the Property. These ponds already regularly overflow as depicted in Exhibit "A" to this letter. To further confuse the issue, there is a storm drain under the proposed freestanding parking structure, which may or may not be relocated, according to the Project Description in the Addendum. Nowhere in the Addendum, however, are the impacts of relocation, or preservation in situ considered, nor is it clear whether this storm drain is the one the Project will drain to. The Addendum defers consideration, and mitigation of these issues, and fails to provide an adequate description. It is impossible to assess the impacts of the Project without an adequate description of the storm flow infrastructure. Finally, the description of parking for the proposed Project assures the reader that parking for the surrounding offices will be replaced. It fails to note, however, that the City's Municipal Code requires that parking be provided on-site, not off-site at a parking structure 900 feet away from the Project that will be visually and physically blocked from the Project. The CC&Rs require "on-site" parking, and this removed and isolated proposed parking structure is NOT "on-site." The environmental document must properly describe both the construction period parking and long term parking, and assess the impacts of the Project on those buildings which were 4 constructed with adequate on-site parking and will now become non -conforming because of this Proj ect. 3. There are Significant New Facts Surrounding the Project Requiring Preparation of an EIR There are significant new facts regarding the present Project that either weren't considered by the prior General Plan EIR, or did not exist at the time of the preparation of that EIR in 2006. These significant new facts require the preparation of an EIR and not an Addendum as currently contemplated by the City. A. COVID-19 At no point in the Addendum is any mention made of COVID-19 and its potential impact on the Project. During the Pandemic, some material costs, including lumber, have literally tripled in price. The work force has become destabilized and inconsistent. Vaccines are rolling out with unknown efficacy. All of these factors could impact construction scheduling, availability or cost of materials, ability to interact with City building officials, and ability to interact with the public. There is no discussion at all about how this issue, which has turned the entire world on its head, will almost certainly impact this project and create significant environmental impacts. A discussion of COVID-19 and its impacts on the Project must be discussed for any CEQA document to be adequate in today's world. The existence of COVID-19 is a significant enough new fact that it triggers the requirement of an EIR by itself. The City is well aware of this issue. Almost every City agenda is printed with a "Special Notice Regarding COVID-19"which completely changes the way the City does business. This is a new and dynamic issue that demands study. B. Greenhouse Gasses In 2006, CEQA did not require analysis of Greenhouse Gasses ("GHG"). AB32 which was adopted in 2008, two years after the adoption of the 2006 General Plan EIR, requires GHG analysis for any CEQA document. Given that there is literally NO analysis of this in the EIR, the Addendum is fatally defective. The City incorrectly contends that because the General Plan was not required to study GHG in 2006, the Addendum can ignore this significant environmental issue or analyze GHG "for informational purposes only." In other words, the City is choosing to "skip" a critical environmental analysis which results in its failure to apply required mitigation to minimize the impacts to a level of insignificance. "Skipping" the GHG analysis is fatal to the Addendum C. Traffic i) CEQA Guidelines Section 15064.3 At the time the EIR was adopted by the City in 2006, Level of Service ("LOS") was the approved method for determining traffic impacts. LOS measures a vehicles "wait time" at an intersection and was used to determine traffic flow and traffic impacts. With the adoption of CEQA Guidelines Section 15064.3, LOS has been expressly rejected as a method of determining significant environmental impacts under CEQA. In fact, under the Guidelines, "a project's effect on automobile delay shall not constitute a significant environmental impact." Despite this new, and clearly applicable requirement, no effort was made by the City to undertake a VMT based approach to Project traffic. Unlike LOS, VMT ignores driver wait times and instead focuses solely on the number of miles vehicles will travel because of new development — an entirely new and different method of measurement and completely incompatible with LOS. Instead, the City incorrectly uses LOS and then further incorrectly calculates the actual impact of the Project on LOS, understating the actual project impacts. ii) City's Prior Attacks on Traffic Congestion in Immediate Area In approximately 2008-09, the City of Newport Beach initiated a series of law suits against residential builders that were seeking land use approvals from the City of Irvine. In all of those actions, the City filed detailed CEQA challenge letters with the City of Irvine and briefs with the Court arguing that the approval of new residential projects within the IBC would create failing traffic conditions in the IBC, the businesses surrounding the John Wayne Airport, and in the same development corridor as the current Project. In fact, in several of its CEQA challenge letters and supporting briefs, the City claimed that new facts and new conditions required preparation of a subsequent or supplemental EIR. In those briefs, the City of Newport Beach argued that ANY incremental increase in traffic cause by any of the proposed residential projects was completely unacceptable. The City further argued that the traffic analysis for the area surrounding the IBC relied on assumptions regarding roadway and intersection improvements that were either unidentified or speculative. Without certainty to those improvements, the City argued that already failing traffic levels would be further compounded until total grid -lock froze the IBC. All of these statements made by the City were made after the adoption of the 2006 EIR and constitute new information about significant environmental impacts that the City admits exists. D. Toxic Contamination The Addendum incorrectly dismisses the Jazz Semiconductor toxic waste plume as a "non - issue." However, as is detailed in the attached letter of Principal Scientist Steve Figgins, the contamination is still spreading across the Property and is in fact in very shallow soils surrounding my client's building and in the area where the proposed parking garage for the Project will be excavated. If these soils are disturbed or excavated during the construction process; (1) it is highly likely that the California Regional Water Quality Control Board will order the implementation of a soils management program; (2) it is almost certain that the construction activities will disturb and potentially spread the contamination; and (3) the volatile organic compounds found in the soils will cause a major vapor challenge to the safe construction and use of any underground parking structure in the area. The attached letter of Principal Scientist Steve Figgins of EKI Consulting is attached hereto as Exhibit `B." In his review of the status of toxic substances in and near the facility, Mr. Figgins found that: Since earthwork and footings will be required to build the first parking structure planned in this development, and its location near the contaminant source area on the Jazz Semiconductor property, there is a high likelihood that the [California Regional Water Quality Control Board] RWQCB will require the preparation of a Soil Management Plan describing specific precautions, testing, and actions depending upon the level of VOC soil impacts encountered during this construction. The ri apartments that are part of this construction plan will have subterranean parking and plan to excavate 20 feet below ground surface. Though this area is further away from the contaminant source, there is a likelihood that groundwater and soils in the area may also be impacted and could be the source of [volatile Organic Compounds] VOC vapors in the below grade parking areas, causing a potential risk to residents. E. CC&Rs The proposed residential Project is being constructed in the middle of an existing, fully - developed Business Park that is subject to detailed CC&Rs. There is literally no mention of the CC&Rs anywhere in the Addendum (or in the 2006 EIR) and yet the CC&Rs limit and control the use of the site. Applicant Picerne's Project as proposed will violate the CC&Rs in several material ways. While "on -grade" parking is required by the CC&Rs, it is being replaced by non "on -grade" parking structures. The CC&Rs prohibit the development of any project where:— Improvements and uses which are neither specifically prohibited nor specifically authorized in the Development Standards may be permitted in specific cases by Declarant. Approval or disapproval of such use and improvement shall be based upon the effects of such use or improvements on other portions of the Property or upon the Owners or Occupants thereof." CC&Rs Section 3.04. The CC&Rs also prohibit development of any Project that is of a different nature or character of the existing uses if an activity is neither allowed nor prohibited under the CC&Rs. The construction of residential uses is neither allowed nor prohibited under the terms of the CC&Rs, therefore. this Project can only move forward WHEN Koll/Picerne establish that the Project is in the best interest of the other building owners. A three year construction disturbance, loss of parking quality and quantity, and loss of significant portions of the common area without the permission of the common -area owners are all burdens unfairly and illegally placed on the other building owners by this Project in violation of the CC&Rs. Based upon the facts laid out in this letter alone, Koll/Picerne can't make the required finding and the Project cannot move forward. In the present case, NONE of these conditions are being undertaken in a manner consistent with the terms of the CC&Rs. This is NOT a private matter. The CC&Rs are known use restrictions and valuable property rights that are being ignored or improperly overridden by the City. Finally, the stated purpose of the CC&Rs is to: insure proper development, use and maintenance of Property, to protect each Owner of any portion of the Property against improper development or use of other portions of the Property which will depreciate the value of such Owner's portion ... to prevent haphazard and inharmonious Improvements ... CC&Rs, Section 1.02. Unfortunately, the Project does not promote "harmonious" use protecting the rights of existing Building Owners, but creates disharmony through tiny setbacks, conflicting internal circulation, 7 parking shortages, noise and concerns about quiet enjoyment, safety of children thrown into the middle of a commercial development, and many others. The CC&R violations proposed by Koll and Picerne will have devastating impacts on my client, all of which will constitute significant environmental impacts. There will be jackhammering less than 14 feet from my client's property. During construction, there will be a deficit of more than 260 parking places in violation of the CC&Rs. The lack of description of the interaction between the residential and commercial uses is fatal. There is virtually no description of how very incompatible uses will be forced to coexist. One commentator described children playing baseball in the parking lot of the commercial uses. This is all significant new information that is unique to this Project and obviously wasn't considered in anyway in the 2006 EIR. 4. There are Significant Changed Circumstances from the 2006 EIR A. COVID-19 The endemic presence of COVID-19 is not only a new fact requiring the preparation of a Subsequent EIR, it is also a significant change of circumstances requiring an EIR. At no point in the Addendum is any mention made of COVID-19 and its potential impact on the Project. To this end, a discussion of COVID-19 and its impacts on the Project must be discussed for any CEQA document to be adequate. The City is well aware of this issue and has modified its public engagement, meeting protocols, and face-to-face interactions with the public at City Hall.. B. Greenhouse Gasses Once again, the requirement to study GHG, and the increasing challenges posed by GHGs that grow everyday was for all intents and purposes "ignored" by the City. Two years after the Newport Beach General Plan was adopted (2006), the state passed AB 32 (2008). Further GHG analysis is now required per CEQA. Without GHG analysis, the Addendum is fatally defective. C. Traffic As noted above in Section 3, the LOS was the standard traffic measurement tool at the time the EIR was adopted by the City in 2006. With the adoption of CEQA Guidelines Section 15064.3, LOS has been expressly rejected as a method of determining significant environmental impacts under CEQA. Now, VMT is the required analysis effective July 1, 2020. The City made no effort to calculate the traffic impacts from this Project using the VMT approach — again creating a defect in the CEQA review. D. Toxic Contamination The 2006 General Plan did not acknowledge or address the pervasive contamination surrounding and covering portions of the Project area. As section 3 outlines, the Addendum considers the Jazz Semiconductor toxic -waste plume a "non -issue." Excavating soils considerably deeper than what has occurred for the existing businesses center parking lot increases the potential for the plume to spread, involves the Regional Board, and creates new vapor challenges that don't exist today in the proposed underground parking structure. See Exhibit `B" for further detail and analysis. 5. The Addendum Is Inadequate In addition to the failed Project Description and the requirements to prepare an EIR because of significant new facts or significant changes in circumstances surrounding the Project, the Project further fails because the Addendum fails as a CEQA document. The Addendum simply fails to inform the public and decisionmakers as to the true nature of the project, its true possible environmental impacts, and the actual mitigation measures that will be used to mitigate any impacts to the legally required level of insignificance. A. Aesthetics The Addendum fails to consider the impact of intensification of residential uses within the Project area, as it relates to the visual character of the KBP. Since the Project will generate an additional 52 units above what it was allocated, and since the City has already approved over 2,000 units in the relevant area and the Project will cause the General Plan's cap to be exceeded substantially, the impacts of the Project, when considered with all other projects in the Airport Area, must be analyzed. The Addendum also fails to consider the impact of inserting a large, monolithic residential structure into a purely office environment. Since the Addendum's discussion is focused, incorrectly, only on General Plan policy compliance, the Addendum fails to consider issues such as visual character and lighting impacts associated with the Project itself. For example, the Project will be introducing substantial glare from headlights and traffic movement in an area that currently is generally inactive after sunset. The Project will also substantially increase light and glare impacts on the other existing building within the immediate area. Yet the Addendum does not consider these impacts at all, relying instead on General Plan policies which were developed for the City as a whole, with no thought to individual project impacts when a project exceeded the General Plan's parameters. The Addendum also defers mitigation by stating that a lighting plan will be prepared. How can the City make an informed decision on the lighting impacts of the Project without a lighting plan and associated photometrics? This constitutes illegal deferral of mitigation in violation of CEQA. The lighting impacts in particular must be analyzed for the freestanding parking structure, whose roof deck lighting will extend above the residential buildings planned at the northwest corner of Uptown Newport. The Addendum simply states that light fixtures must be shielded by City policy. What the Addendum fails to consider however, is that in this case, light from the roof deck, which will extend to 65 feet above ground (25 feet above the 40 foot parking structure) will shine down onto the Uptown Newport building(s) adjacent to the Project site, not across a horizontal plane as is normally considered for lighting impacts. This is a Project -specific impact which the City has failed to analyze which could significantly impact neighboring sensitive receptors. B. Air Quality The 2006 General Plan EIR relied on the South Coast Air Quality Management District's (SCAQMD) 2003 Management Plan. That plan is no longer valid, and any analysis which uses that plan is by extension invalid. The SCAQMD adopted a substantially updated plan in 2016 which is currently in effect. It is based on much more well-developed science, and updated data that was not known, and could not be known in 2006. The General Plan analysis, therefore, is also out of date. The Addendum, however, attempts to compare apples to oranges, by discussing the SCAQMD's 2003 Management Plan in the General Plan discussion in the 2006 General Plan EIR. Inexplicably, the Addendum ignores this analysis and uses the 2016 SCAQMD Management Plan in the Project discussion. The City cannot, without substantial evidence, assume that the Project, which is not consistent with the General Plan, is consistent with both plans. The Addendum asserts that the SCAQMD Management Plan is based on the City's population, housing and employment forecasts, and that since the Project is consistent with those forecasts, the Project is consistent with the Management Plan. That is simply not the case, since the Project proposes more units than were allowed in the General Plan. As a result, the Addendum's assertion that the Project is consistent with the Management Plan is wrong. Impacts will be greater than those considered in the Management Plan, and an EIR is required. Furthermore, the Project, because it exceeds the density allowed in the General Plan for the site, will generate greater trips and associated emissions. The Addendum falsely claims that the impacts associated with air emissions will be less than significant and that there will be no substantial change from the previous analysis. Although the Project, on its own, may not exceed SCAQMD thresholds, the 20% increase represented by the additional 52 units will, without question, worsen the significant cumulative impacts identified in the General Plan EIR, since that document presumably only analyzed 260 units for the Project site. Consequently, the Project will result in "a substantial increase in the severity of previously identified significant effects," (CEQA Guidelines Section 15162(a)(1)), and an Addendum is not the appropriate document to meet the requirements of CEQA. The Addendum discloses that seven pieces of heavy equipment will be used during the grading of the Project site. Given that the Project will require the removal of 114,000 cubic yards of dirt, and that the average load of a dirt hauler is 16 to 20 cubic yards, the Project will require 5,700 to 7,125 haul truck trips. Absolutely no trucks are identified in Table 3.2-3. (Equipment-Specific Grading Rates) regarding whether the Project will result in cumulatively considerable net increase of any criteria pollutant for which the Project region is non-attainment under an applicable federal or state ambient air quality standard. Therefore, it can be assumed that the air quality analysis and the localized construction emission calculations significantly underestimate the emissions generated by the Project. Once again, the Addendum demonstrates that the Project will have significantly greater impacts than it analyzes. As described above, the Project also has the potential to generate additional commercial uses. No commercial square footage is included in any of the air quality assumptions, and no analysis of commercial uses' impacts was provided. As such, the air quality analysis is incomplete and insufficient. The Addendum fails to analyze the health effects of air emissions on surrounding employees and residents of Uptown Newport for the three-year construction period, and in the long term. As clearly required by the Court in Sierra Club v. County of Fresno (2018) 6 Cal.50' 502, an environmental document must determine the impacts to peoples' health resulting from implementation of the Project. Without such an analysis, the air quality impacts have not been thoroughly analyzed, and the City cannot make an informed decisions on the impacts of the Project. 10 Finally, the Addendum fails to discuss or even acknowledge the air quality issues that will come from the toxic vapor intrusion when the Picerne begins to excavate the underground parking structure that is impacted by the Jazz Semiconductor toxic plume. C. Cultural Resources and Tribal Cultural Resources First and foremost, the Addendum does not discuss Tribal Cultural Resources at all. CEQA requires that these be addressed, and AB 52 requires that the City conduct Tribal consultation for this Project (and since this Project also requires a General Plan Amendment, SB 18 Tribal consultation is required). No mention of Tribal consultation is made in the Addendum, and the City appears to have failed to meet its obligations under AB 52. This is a critical defect that renders the analysis incomplete and inadequate. The Addendum cites both General Plan policy and "Standard Conditions and Requirements" which are inconsistent. In the General Plan, policy HR 2.2 requires the presence of an archaeological monitor for all grading and/or excavation for a project where resources could occur. The Addendum concedes that the Project site has the potential to yield cultural resources, and since both the apartment building and the free-standing parking structure will excavate far deeper than any excavation undertaken for the current parking lots, this likelihood is heightened. Yet the Standard Condition requires only periodic monitoring. Periodic monitoring is inconsistent with the General Plan policy, and cannot assure that impacts will be mitigated, since it cannot be assumed that the archaeologist will be on-site when resources are uncovered. The Addendum, therefore, does not mitigate the potential impact to cultural resources, and the impact remains potentially significant and unavoidable. In this case, as required by CEQA, an EIR must be prepared. D. Energy The General Plan EIR did not address Energy Resources in 2006. In this case, the City chose to address the issue as it relates to the Project, unlike other environmental issue areas in the document, as discussed above. That discussion, as it relates to General Plan build -out, is speculative and incomplete, since the General Plan did not address the use of fossil fuels. In its discussion of the Project, the Addendum concludes that the Project will have less than significant impacts on Energy Resources, even though "SCE forecasts that it would have adequate electricity to meet the expected growth in its service area through 2026." Given that the Project is planned to open in 2024, is the City approving a project that SCE will be unable to serve within two years of occupancy? Given the constant summertime rolling blackouts, flex -alerts and conservation warnings issued by Southern California Edison ("SCE") in recent years for its service area, it is likely that the 2026 estimate is aggressive. The Addendum fails to provide substantial evidence that the Project can be served by SCE, and that impacts will be less than significant. In addition, in its discussion of fossil fuel consumption for the Project, the Addendum appears to ignore the more than 7,000 haul trips that will be necessary for the proposed Project. That many haul trips, each for a distance of at least 20 miles, does not represent an efficient use of energy. The City must address this wasteful use of energy to comply with CEQA. In its discussion of cumulative impacts, the Addendum continues to claim consistency with the General Plan. The Project proposes 20% more units than the General Plan allows or considered 11 in its EIR. Therefore, the Project will increase impacts to Energy Resources over those considered in the General Plan EIR, and impacts will be greater than that previously analyzed. As it relates to Energy Resources, there are potentially significant impacts, and an EIR must be prepared. E. Geology and Soils The analysis provided in the Addendum is inconsistent with the professionally prepared geotechnical analysis included as Appendix B of the Addendum. In the Addendum, the City asserts that Standard Conditions are all that the Project will require. Appendix B, however, identifies a series of mitigation measures in its recommendation section, including the use of concrete structural mat foundation systems, because of the conditions on the Project site. The City's Standard Conditions for approval of a grading plan are hardly equivalent to the mitigation measures required in Appendix B. The Appendix demonstrates that impacts associated with geology and soils could be significant, and that Project -specific mitigation measures are required to reduce impacts to less than significant levels. Regarding paleontological resources, the Addendum makes the same mistake as under cultural resources. It cites both General Plan policy and "Standard Conditions and Requirements" which are inconsistent. In the General Plan, policy HR 2.2 requires the presence of a paleontological monitor for all grading and/or excavation for a project where resources could occur. The Addendum asserts that the Project would implement policy HR 2.2 if ground -disturbing activities "impact previously undisturbed grounds." Since both the apartment building and the free-standing parking structure will excavate far deeper than any excavation undertaken for the current parking lots, to depths in excess of 20 feet, the Project will encounter soils not previously disturbed. Yet the Standard Condition requires only that a paleontologist be "on-call." Without on-site monitoring, the Standard Condition is inconsistent with the General Plan policy, and cannot assure that impacts will be mitigated, since nothing in the Standard Condition requires the presence of a monitor. The Addendum, therefore, does not mitigate the potential impact to paleontological resources, and the impact remains potentially significant and unavoidable. As required by CEQA, an EIR must be prepared. As described above, the Addendum is inconsistent with the professionally prepared technical report and General Plan policy, and has not provided substantial evidence that the Project's geotechnical and paleontological impacts can be mitigated to less than significant levels. F. Greenhouse Gas Emissions The Addendum incorrectly states that because the General Plan EIR does not address Greenhouse Gases (GHGs), and because the Housing Element's CEQA document found GHG impacts less than significant, the impact is assumed to be less than significant overall. This argument fails under CEQA. The City cannot compare the analysis of Housing Element policies on GHGs with the actual generation of GHG emissions at General Plan build -out. The Housing Element in no way considered build -out of all land uses in the City, and cannot be relied upon to accurately reflect GHG impacts at General Plan build -out. Furthermore, the Addendum does not provide substantial evidence, through the preparation of a General Plan build -out analysis of GHG impacts, that impacts would be less than significant. The City cannot, without providing substantial evidence, make this assumption. In addition, although the Addendum asserts that the 12 City knew that an analysis of GHG would eventually be required, when the General Plan EIR was prepared, it provides no evidence that the City considered GHG reduction strategies in its General Plan, or that General Plan build -out would not have a significant impact on GHG emissions. If the information is not "new," as the Addendum asserts, then the analysis should have been provided in order for the City to be able to determine significance. Regarding the analysis of the Project, the Addendum once again asserts that the Project will not result in increased capacity or density in the zone. As described repeatedly above, that is simply not true. The KBP area was assigned a maximum of 260 units, while the Project proposes 52 more units, and the City has already approved 2,038 units, so the most the Project could generate within the General Plan capacity is 162 units. When the Project, which exceeds General Plan capacity, is added to other projects, it will result in greater impacts to GHG than considered in the General Plan, and in the Housing Element CEQA document, because it proposes more units. As described above, the Project also has the potential to generate additional commercial uses. No commercial square footage is included in any of the GHG assumptions, and no analysis of commercial uses' impacts was provided. As such, the GHG analysis is incomplete and insufficient. Therefore, the Addendum fails to provide substantial evidence that the impacts of the Project on GHG emissions will be less than significant, and a potentially significant impact is likely. As a result, the provisions of CEQA Guidelines Section 15162 do not apply, and an EIR must be prepared. G. Hazards and Hazardous Materials The Addendum's analysis of the potential for exposure of neighboring buildings' employees, construction workers and residents to hazards at the adjacent Jazz Semiconductor facility is completely inadequate on multiple fronts. That property has been studied and remediated for many years, and offsite hazards have been identified. As described in Appendix H of the Uptown Newport EIR, the worst case "Toxic Endpoint" for Anhydrous Ammonia is 6,336 feet, for Boron Trichloride 3.696 feet, for Chlorine 1,056 feet, for Hydrofluoric Acid 6,336 feet and for Sulfuric Acid 252 feet from the Jazz property.' The Project's free-standing parking structure is immediately adjacent to the Jazz property, and the apartment buildings are 700 feet from the Jazz property, in the direction of contamination. The EIR for Uptown Newport identified significant impacts for both on-site and off-site residents and occupants, and required multiple mitigation measures. The Addendum fails to disclose that the plume of contaminated soils and groundwater extends northwesterly of the Jazz site, and into the Project site. As described in the attached letter from EKI Environment and Water (Exhibit C), soil, soil vapors and shallow and intermediate groundwater are contaminated. The Project will include extensive excavation for the free- standing parking structure's foundations and pilings, as well as at least 20 feet of excavation under the apartment building to accommodate the parking garage. Both of these activities will result in a significant impact associated with hazardous materials from both construction and operation of the Project. 1 "Offsite Consequence Analysis for Tower Jazz Semiconductor Facility," The Planning Center, August 2012. 13 In the case of construction, the excavation will expose contaminated soils, and since perched groundwater occurs in this area, dewatering of excavated areas with contaminated groundwater will be required. No analysis of the potential impacts of this exposure is conducted in the document, and no mitigation proposed. During operations, as stated in Attachment A, VOC vapors will impact the subterranean parking areas, and the residents and business tenants who will park there. This is not an impact that was considered in the General Plan EIR, and cannot be resolved through policy. Long term exposure to hazardous materials is a significant hazard that cannot be glossed over. The Jazz facility continues to operate, and based on the Uptown Newport phasing plan, will still be in operation when the Project is under construction. The Project has the potential to be significantly impacted, and the CEQA document must analyze these potential impacts, determine what mitigation measures are required (including those in the Uptown Newport EIR), and include them in a Project EIR. Without this analysis, the Addendum defers mitigation, does not disclose significant impacts to decision makers or the public, and cannot determine whether impacts can be reduced to less than significant levels. H. Hydrology and Water Quality As was the case with the Addendum's air quality analysis, the groundwater resources analysis also compares apples and oranges. The General Plan EIR used the 2005 Urban Water Management Plans (UWMP) from the City's various domestic water providers as the basis of its analysis. The Addendum, however, analyzes water resources using 2015 UWMP data. The Addendum also asserts, falsely, that the Project is consistent with the General Plan, which it is not. In the case of groundwater resources, the Project will generate demand 20% higher than that considered in the General Plan EIR and the UWMP for that property. The Addendum asserts, without substantial evidence, that the Project will rely on the existing drainage system and the Project's drainage will be less than current conditions. No schematic or description of the proposed on-site drainage facilities is provided, and no explanation of the calculations provided in Table 3.9-1 are included in the Addendum. Furthermore, no hydrology study is provided as an Appendix, so no analysis of drainage is provided. Is the Von Karman storm flow draining to a storm drain or will it be carried in the street to another storm drain further downstream? Do the existing storm drains have the capacity to accommodate flows? According to the Addendum, the General Plan determined that build -out of the General Plan could not be accommodated within the existing drainage facilities, and that the Storm Drain Master Plan would be amended to assure sufficient facilities. There is no evidence in the Addendum that these amendments have been made, or that the storm drain system has capacity to accommodate the Project's storm flows. The Addendum states that there is a storm drain under the proposed free-standing parking structure, which may or may not be relocated. Nowhere in the Addendum, however, are the impacts of relocation, or preservation in situ considered. If it is to be relocated, will this occur on-site, or will additional land not analyzed in the Addendum be required? Although no analysis is provided, the Addendum determines in one sentence that there would be no impact and that there are no changes or new information requiring an EIR. This is unacceptable under CEQA. Assumptions are not facts, and without facts the Addendum cannot assume no impact. 14 The Addendum states that the Project will include an infiltration basin and Modular Wetlands System, vegetated swales and bioretention basins to address polluted surface waters. However, there is no evidence, in the document or on the Project plans, of these areas. Further, the existence of infiltration basins contradicts the description of storm flows being collected into an existing piped drainage system. The Addendum must provide sufficient information on the proposed drainage plans for the Project to make analysis of the adequacy of these plans possible. The Addendum also fails to address how water quality control at the subterranean parking structure will be addressed. The site occurs in an area of high groundwater, in some locations as shallow as 10 feet. The parking structure will require a minimum of 20 feet of depth below ground to accommodate the two subterranean parking levels. Drainage from the parking structure will be polluted by oils, chemicals and other substances deposited by vehicles onto the parking surface, which presumably will be carried to drains at the bottom of the structure. Since the structure will occur within groundwater areas, the Addendum must consider whether the drainage system proposed could impact groundwater when released from the structure, and what mitigation measures must be implemented to protect groundwater. I. Land Use and Planning As described at length throughout this document, the Project is not consistent with the General Plan, with the units allowed in the MU -1-12 zone, or with the ICDP. Specifically, analysis of policies 6.15.5, 6.15.6, 6.15.8 and 6.15.13, which apply directly to the Project site show that the Project as proposed exceeds the allowable density, does not meet residential village size requirements, minimum density requirements, or park amenity requirements. Furthermore, the Project is inconsistent with the Housing Element, which repeatedly assigns, in text and tables, 260 units to the property. As a result, the Addendum cannot conclude that the Project is consistent with land use plans, and must declare a significant and unavoidable impact, unless the Project is amended to include, and analyze in a CEQA document, General Plan text amendments to change these policies. Without these amendments, the impacts of the Project on land use plans cannot be mitigated. In addition, there is virtually no discussion regarding the incompatibility of residential and commercial uses coexisting within such a small, defined area. During the night when the businesses are largely closed, they take deliveries and conduct minor repairs, remodels or upgrades. All necessary but noise creating events that interfere with a residential lifestyle. In contrast, during daytime hours when the businesses are fully operational, the Addendum makes no mention of expected daytime activities such as children trying to find places to play, meandering through uncontrolled traffic or playing in the parking lots of the commercial buildings. J. Noise The Addendum's noise analysis is flawed. First, it assumes that the project is consistent with the General Plan's density and intensity, which it is not. Based on current approvals, the City has already allowed 2,038 units in the Airport Area, and the Project cannot exceed 162 units to remain consistent. Because the Project exceeds the assumptions of the General Plan, it also will result in higher noise levels, particularly from vehicle trips. 15 Second, the Addendum asserts that Table 3.12.3 shows that the highest noise level on the site would be 64.6 dBA. Table 3.12.3 describes noise levels on several streets, but does not include Birch Street, so it is not possible to determine the noise levels to units adjacent to Birch Street, which occur as close as 29 feet from the back of curb. The Table further only provides noise levels for Von Karman north of Campus Drive, which is'/a mile north of the Project site. No noise contours are provided for either street adjacent to the Project. It is therefore impossible for the Addendum to assert any noise level at the Project. Third, the method used to calculate on-site noise is unacceptable, and inconsistent with industry standards. On-site noise is calculated by first monitoring existing noise levels on a site, at various locations that would be representative of the Project's sensitive receptor areas. In this case, since the park is adjacent to the roadways and the closest apartments are proposed 30 feet from both Von Karman and Birch, monitoring equipment would have been placed at those locations, and would have recorded short and long duration noise levels. From that monitoring data, a competent noise engineer would have used the Project plans to determine the noise levels at ground floor and upper floor locations, on patios and balconies, as well as at ground level in the park. Without this analysis, the Addendum cannot determine the noise impacts to sensitive receptors, and the Addendum is inadequate in its analysis of noise impacts. Again, a proper noise impact analysis must be conducted, the findings described in an EIR, and mitigation measures identified and incorporated into the Project. K. Transportation First, the Addendum reveals that the Project site was not studied for 260 units in the General Plan, but for 128 units. This is the first time, in 161 pages of purported CEQA analysis, that such a significant shortfall is revealed. Indeed, the previous 160 pages assert repeatedly that the Project was analyzed in the General Plan EIR. At least in its transportation analysis, that is clearly not the case, and leads one to posit that other analyses, such as air quality and noise, made assumptions that were far below what the General Plan allows, let alone what the Project now proposes. The Addendum provides the thresholds of significance used by the City to determine traditional LOS, and asserts that only this means of analysis was required, because VMT analysis was not required in 2006. These conditions result in multiple failures in the traffic analysis. First, as relates to thresholds of significance, the City has two thresholds — significant impacts would occur if an intersection operating at acceptable levels were to drop to an unacceptable level; and significant impacts would occur if an intersection operating at an unacceptable level would result in the Intersection Capacity Utilization ("ICU") increasing by I% (a volume to capacity increase of 0.010 or more). The Addendum, based on a traffic impact analysis appended to the document, considers multiple scenarios, including opening year and General Plan build- out, with and without the Project. According to the Addendum, and based on the analysis of a qualified traffic engineer, opening year with Project impacts result in slightly increased ICU delays, but all are within the City's thresholds. However, because the General Plan EIR significantly under -estimated the units at the Project site, the traffic study also analyzes the impacts of the Project on General Plan build -out conditions. Under those conditions, although Table 3.16-9 states that there is no impact, three failing (LOS E or F) intersections result in increases in ICU of 0.010 in the AM peak hour — MacArthur Boulevard at Jamboree Road; Jamboree Road at Birch Street; and Bristol Street North and Campus Drive. The Addendum and 16 traffic study go on to falsely state that the Project will have no impact on traffic. Clearly, both documents are mistaken. The City's threshold for failing intersections is an ICU increase of 0.010, and three failing Project intersections result in an increase of 0.010 when the Project is added to General Plan build -out traffic levels. In addition, the cumulative impact analysis falsely concludes that the Project will have no cumulative impact on traffic. Given the General Plan build -out impacts, this is clearly not the case. Therefore, the Addendum has identified a significant impact, as defined in the City's own thresholds of significance. An EIR must be prepared. As relates to VMT analysis, consistent with explanations provided above, the fact that the General Plan EIR did not require VMT analysis does not exempt the City from now conducting VMT analysis for the Project. Actually, the CEQA Guidelines are explicit: "Beginning on July 1, 2020, the provisions of this section shall apply statewide." (Section 15064.3(c)) Furthermore, Section 15007(b) states, in part, "New requirements in amendments will apply to steps in the CEQA process not yet undertaken by the date when agencies must comply with the amendments." In this case, the Addendum was released by the City long after the July 1, 2020 deadline. Furthermore, VMT analysis is new information, which was not known at the time the EIR was prepared, and triggers the need for additional environmental analysis under Section 15162. Therefore, the City must comply and prepare VMT analysis, determine whether the Project will result in significant impacts, and whether mitigation measures are required. This must be done in conjunction with the preparation of an EIR. The Addendum also fails to adequately analyze the impacts of construction traffic. The Project is proposed on a fully developed site. As stated previously, no staging areas or construction vehicle parking areas are proposed. Construction will extend over a three year period, in a fully occupied, fully operational office park. Yet the Addendum does not quantify, nor does it analyze the impacts of dozens of construction workers' vehicles traveling through and parking on a site which will already be under parked because of construction activities; or the effect of 7,000 haul trucks waiting for, being loaded with and carrying the 114,000 cubic yard of exported soil through the surrounding office park over months of excavation work. The Addendum must consider all of the potential impacts of construction traffic, not just those on City streets. As currently written, the Addendum fails to adequately analyze construction traffic impacts. L. Utilities and Service Systems As with the balance of the Addendum, the utilities and service systems analyses are conducted on the basis that the Project is consistent with the General Plan. Clearly it is not, and the Project will generate demand for more potable water, more wastewater treatment and more landfill capacity than what was calculated for the General Plan. Although the Addendum quantifies the Project's demand, it does not consider or analyze whether these increases would result in additional impacts. This analysis is particularly critical when considering General Plan build- out, not current conditions. The Addendum should analyze not only the Project's immediate impacts, but also whether those impacts, when added to other projects resulting in build -out of the City, would affect capacity. 6. The Conditions of Approval Are Internally Inconsistent and Violate CEQA The conditions of approval are defective in multiple ways. Finding 2 is unsupported because the Project is inconsistent with the City's General Plan. The Project as proposed violates a 17 significant number of General Plan Policies including Policy LU6.15.5 (the Project contains more housing units than allowed), LU6.15.6 (Project too small for designation), LU6.15.8 (project denser than allowed), and LU6.15.13 9 (park to narrow for City standards). 7. The Project Approval Is Infected with a Brown Act Violation On December 1, 2020, the Parks, Beaches and Recreation Commission discussed agenda item VII(A) Residences at 4400 Von Karman Project — Review of Public Parks. Citizen Melanie Schlotterbeck needed to attend this meeting on behalf of her client. Unfortunately, while the City of Newport Beach has conducted virtually all of its meetings with a "remote options" (phone, Zoom, etc.), the City inexplicably removed its "remote meeting" COVID-19 notice of accommodation ONLY for this meeting. Ms. Schlotterbeck was told that the only way that she could attend the meeting was by coming to City Hall in person. When Ms. Schlotterbeck informed the Recreation and Senior Services Department that she was immune compromised and could not be in attendance personally, the City made no effort to accommodate Ms. Schlotterbeck. The meeting went forward without public participation because the City refused to make an accommodation that it had made for virtually every other public meeting held at the City. Ms. Schlotterbeck has hired counsel and has filed a Brown Act Challenge letter with the City demanding that the meeting be voided and noticed and held in a manner compliant with the Brown Act. The Ralph M. Brown Act (Brown Act) (Gov't Code Section 54950 et seq.) requires meetings of legislative bodies of local agencies to be open and public. Gov't Code Section 54953(a). As the California Constitution recognizes, "[t]he people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." Cal Const art I, §3(b)(1). Statutes, court rules, and other authorities must be broadly construed if they further the right of access and narrowly construed if they limit the right of access. Cal Const art I, §3(b)(2). Under California Government Code Section 54960, Ms. Schlotterbeck has the right to seek to invalidate the action of the City of Newport Beach Parks, Beaches and Recreation Commission. Since an CEQA Addendum cannot defer approvals, any action taken by the City to approve the Addendum prior to the correction of the Brown Act violation would be void. The City must continue the hearing on the Addendum and supporting approvals until such time as the City of Newport Beach Parks, Beaches and Recreations Commission can properly notice and accommodate participation in a manner consistent with the Brown Act. 18 8. Conclusion For all of the reasons stated in this letter, Olen Properties respectfully requests the City continue the hearing currently scheduled for January 12, 2021 until a future date when either an EIR or Supplemental EIR is completed for the Project. Cinearaly 19 I L- J TERRA NOVA PLANNING & RESEARCH, INC.° January 11, 2021 Mr. Geoff Willis The Law Offices of Geoffrey Willis 9891 Irvine Center Drive, Suite 200 Irvine, CA 92618 RE: Review of Residences at 4400 Von Karman Project Dear Mr. Willis: At your request, and on behalf of Olen Properties, we have reviewed the documentation associated with the Residences at 4400 Von Karman, a project proposed in the City of Newport Beach. Our review focused on land use and California Environmental Quality Act (CEQA) compliance. Project Description The Residences at 4400 Von Karman (Project) applications included an amendment to the Planned Community Development Plan, a Major Site Development Review, a Lot Line Adjustment, an Affordable Housing Implementation Plan, a Traffic Study and a Development Agreement. The City determined that CEQA compliance could be achieved through the preparation of an Addendum to the General Plan EIR. The applications would result in the development of 312 apartment units with an 825 - space parking structure and an additional off-site 284 -space parking structure located approximately 600 feet southeast of the Project. The Project would be constructed on existing parking lots which provide on-site parking for multiple existing office buildings, including the building owned by Olen Properties at 4910 Birch Street. Land Use Issues The Project is inconsistent with the General Plan The Project is located the existing Koll Business Center (KBC) Business Park, which is within the Airport Area, as defined by the General Plan, and designated Mixed Use Horizontal (MU -H2) on the Land Use Map (Figure LU22). This designation is defined and described through a series of policies, each of which serves a specific regulatory purpose. The Project, as currently proposed, violates each of these policies, as described below. It is important to note that the policies cited and analyzed below apply specifically to the Airport Area, in which the Project is located, and were therefore developed not as general and broad City-wide concepts, but instead focused on the Project area. 42635 MELANIE PLACE, SUITE 101, PALM DESERT, CA 92211 (760) 341-4800 Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 2 of 18 Policy LU6.15.5 caps the number of units allocated in the MU -H2 designation at 2,200 units, of which only 550 may be additive. The allocation for these units is to be identified in the Integrated Conceptual Development Plan (ICDP) for the KBC. The KBC allocation under this Policy is 260 units (as repeatedly cited in the Housing Element). Nowhere in the General Plan or the ICDP does the cap allow for additional units based on density bonus. On the contrary, the 550 unit additive cap was determined based on traffic analysis for the General Plan, which found that redevelopment in the MU -H2 designation would significantly impact traffic if a cap were not instituted (also see discussion of traffic impacts under CEQA evaluation below). As a result, the General Plan determined that no more than 550 additive units could be developed in this land use designation. The Project proposes 312 units, or 52 more than that allocated to KBC though the General Plan. On this issue alone, the Project is inconsistent with the General Plan on the basis of density. Further, the Planning Commission staff report dated November 5, 2020, confirms that the City will be exceeding the 2,200 unit cap with approval of this project. As shown in the Airport Business Area Residential Units table on pages 14 and 15 of the staff report, the City has approved 2,038 total units at Uptown Newport, Newport Crossings and Newport Airport Village. This project, therefore, could only accommodate 162 units under the current General Plan. Since the project is proposing 312 units, it is inconsistent with the General Plan, exceeds the 2,200 unit cap, and cannot be approved without a General Plan Amendment, and accompanying CEQA analysis, to raise the total unit cap in the Airport Area. Policy LU 6.15.6 requires that each "residential village" within the MU -H2 land use designation be a minimum of 10 acres "centered on a neighborhood park and other amenities." KBC is identified as Residential Village 3 in the General Plan's Housing Element. Although the Project purports to be 13 acres, the "residential village" consists of only 3.41 acres (ICDP Part VI., Section II.). Even if one adds the 1.1 acres assigned to the park, the total "residential village" area is 4.51 acres. The balance of the Project area is completely unrelated to the "residential village," since it consists of parking lots and parking structures allocated to the office space adjacent to the Project, and has no relationship to the "residential village," which is entirely self-contained and self - parked. Therefore, the proposed Project is the first phase of Residential Village 3, and is inconsistent with the 10 acre minimum "residential village" size required by this policy, and a General Plan Amendment, and accompanying CEQA analysis, are required prior to consideration of the Project by the Planning Commission and City Council. Policy LU 6.15.8 requires that the first phase of any "residential village" be at a density of 45 to 50 per net acre. The Project, the first phase of Residential Village 3, at 312 units on 3.41 net acres, is at a density of 92 units per acre. Even if one were to consider the "net acre" calculation on the basis of the park and the apartment site together, the Project is at a density of 69 units per acre. In either case, the Project far exceeds the required Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 3 of 18 density of 45 to 50 units per net acre, and a General Plan Amendment, and accompanying CEQA analysis are required prior to consideration of the Project by the Planning Commission and City Council. Policy LU 6.15.13 addresses standards and requirements for each "residential village" park. These standards include size (1 acre) and dimensions. The policy explicitly requires that the park have a minimum dimension of 150 feet. Because of the manner in which the park has been shoehorned into the site, multiple areas do not meet this minimum dimension, including the entire east half of the Project, the central portion on the north/south axis, and the western half on most of the north/south axis. The eastern half of the park in particular, at widths of 20 feet or less, is not a park at all, but simply a landscaping area which provides no amenities or benefit to the residents of the Project. The Project, therefore, is inconsistent with this Policy, and a General Plan Amendment, and accompanying CEQA analysis are required. The Integrated Development Plan (ICDP) is inconsistent with the General Plan The project is regulated by the Koll-Conexant ICDP, which is being amended to add a residential overlay to allow the Project. However, as an implementing tool of the General Plan, the ICDP must be consistent with it, much as a Zoning Ordinance must be consistent with a General Plan. Since the ICDP would be amended to allow 312 units on 3.41 acres (explicitly cited in the ICDP), it is necessarily inconsistent with LU Policies 16.15.5, 6.15.6 and 6.15.8, which limit the number of units, the parcel size and the density, respectively. Further, since the ICDP is silent on the issue of dimension of parks, the ICDP is inconsistent with LU Policy 16.15.8. Conclusion California law prohibits Projects which are inconsistent with the local jurisdiction's General Plan. As demonstrated above, the Project is inconsistent with multiple policies of the General Plan specifically designed for the Airport Area in which it is located. The City cannot, without the processing, consideration and approval of multiple General Plan policy amendments, approve the proposed Project. CEQA Issues The City prepared an Addendum to the General Plan Environmental Impact Report (EIR) for the Project. As described below, this is not the appropriate level of review for the Project, and a Subsequent EIR must be prepared. Critical to any CEQA review is the analysis of the whole of the action. In this case, and particularly since the Project exceeds the density analyzed in the General Plan EIR, the physical impacts of the Project, not only whether it is consistent with the General Plan policies for any given environmental issue area, must be conducted. The City cannot rely solely on General Plan policy analysis when more units than were previously Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 4 of 18 analyzed are now proposed. The environmental document must consider the physical impacts of these additional units as they are part of the whole of the action the City is now considering. Without this Project -specific analysis, the City's CEQA review is insufficient for decision -makers and the public to make an informed decision on the environmental impacts of the Project. The Project Is Inconsistent with the General Plan As a base issue, the Project proposes 52 more units than it was allocated in the General Plan, and 150 units more than is allocated for the entire Airport Area, based on approved projects. The entire analysis in the EIR Addendum, therefore, is flawed, since it fails to consider the inconsistency in density in any issue area of the Addendum. The Addendum instead relies on consistency with General Plan policies, when at its most basic the Project is inconsistent. In addition, the ICDP includes the potential for future, undefined "supportive retail" uses. The Addendum does not address the potential for additional retail uses at all. The potential impacts of these uses, which are part of the whole of the action being considered by the City, have not been analyzed. As such, an EIR Addendum tiered from the General Plan is inappropriate, and a Subsequent EIR, which considers all of the amendments required to make the Project consistent with the General Plan must be prepared. The Project Description is Incomplete and Insufficient The Project Description includes, in Table 0-1, an incorrect summary of existing conditions. As described above, the City has already approved 2,038 units in the Airport Area, not the 1,504 described as "allocated" in Table 0-1 of the Addendum. The Addendum, therefore, under -estimates actual approved build out potential by 534 units. This is a substantially larger number of units than originally contemplated in the General Plan, and a substantial change in conditions. As a result of this significant under- counting, the Addendum does not consider the impacts of build out of the project when considered with other projects, and fails to properly consider cumulative impacts. The Project includes, in its amendment to the ICDP, supportive retail uses. There is no analysis of these supportive retail uses in the Addendum. The Project will also require staging areas for materials storage, the temporary storage of 114,000 cubic yards of excavated soil, the loss of parking for existing businesses for multiple years, and other construction activities. Since the phasing of the Project does not allow for the reduction in parking spaces beyond that described in the Phasing Plan, and since the Project proponent does not control any additional areas adjacent to the Project, there are no feasible on-site staging areas or parking areas, and off-site staging and parking must be assumed. Yet no staging areas or parking areas are described in the Project Description, Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 5 of 18 or analyzed in the document. This deficiency affects the entirety of the analysis in the Addendum. Furthermore, the Addendum states that the 114,000 cubic yards of dirt that will be excavated from the site will be exported and dumped off-site. In the Air Quality model runs, a distance of 20 miles is assumed for this theoretical export site, which would necessarily mean that it is not in Newport Beach, and was not analyzed in the General Plan EIR. As described above, the CEQA analysis for this Project must consider the whole of the action, including the impacts to the export site. Its location must be disclosed in the document, and the impacts of such a large quantity of soil to that site analyzed. Neither the Project description nor the Hydrology section describe the means by which the site will accommodate storm flows. There are vague statements made in the Hydrology section that the project will drain to Von Karman Avenue from "south of the high point" and to an existing 60" storm drain east of the 5000 Birch Street building "north of the high point." There is no discussion of what the on-site drainage system consists of, nor of whether the project's storm flows will discharge into the existing stormwater management lakes surrounding the property. To further confuse the issue, there is a storm drain under the proposed freestanding parking structure, which may or may not be relocated, according to the Project Description in the Addendum. Nowhere in the Addendum, however, are the impacts of relocation, or preservation in situ considered, nor is it clear whether this storm drain is the one the Project will drain to. The Addendum defers consideration, and mitigation of these issues, and fails to provide an adequate description. It is impossible to assess the impacts of the Project without an adequate description of the storm flow infrastructure. See additional detailed comments below. The description of parking for the proposed Project assures the reader that parking for the surrounding offices will be replaced. It fails to note, however, that the City's Municipal Code requires that parking be provided on-site, not off-site at a parking structure 600 feet away that will be visually and physically blocked from the Project. The environmental document must properly describe both construction period and long term parking, and assess the impacts of the project on those buildings which were constructed with adequate, on-site parking and will now be made non -conforming. The Addendum Cherry -Picks What It Does and Does Not Analyze On the basis that the General Plan EIR, completed 15 years ago, was not required to study certain environmental issues, the Addendum either ignores the environmental issue area, or analyzes it, without any explanation of why the City chose to do so. For example, the City chose to analyze Energy and Greenhouse Gas (GHG) emissions associated with the Project but not with General Plan build out, but ignored Vehicle Miles Traveled (VMT) analysis altogether. The City is not at liberty to decide which environmental issue areas it will study in an environmental document. It must analyze all Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 6 of 18 issue areas that are currently required under CEQA. This requirement also impacts the validity of the use of an Addendum. The CEQA Guidelines require that a Subsequent EIR be prepared if "the project will have one or more significant effects not discussed in the previous EIR." (Guidelines, Section 15162(a) (3) (A)) In this case, since no analysis of GHG or VMT impacts was previously conducted, the City cannot assume that the Project's impacts will be less than significant, without providing adequate analysis and substantial evidence. No such substantial evidence is provided in the Addendum. Please also see detailed comments below. The Analysis of Individual Environmental Issue Areas is Flawed and Inadequate As stated above, the Addendum is flawed at its core, because it repeatedly asserts, and bases its analysis on the assumption that the Project is consistent with the General Plan. The Project is not consistent with the General Plan, and since no General Plan Amendments are proposed, will remain inconsistent with the General Plan. No amendment to the ICDP can cure this inconsistency. Therefore, the use of an Addendum is inappropriate, and a Subsequent EIR must be prepared. Aesthetics The Addendum fails to consider the impact of intensification of residential uses within the Project area, as it relates to the visual character of the KBC. Since the Project will generate an additional 52 units above what it was allocated, and since the City has already approved over 2,000 units and the Project will cause the General Plan's cap to be exceeded substantially, the impacts of the Project, when considered with all other projects in the Airport Area, must be analyzed. The Addendum also fails to consider the impact of inserting a large, monolithic residential structure into a purely office environment. Since the discussion is focused, incorrectly, only on General Plan policy compliance, the Addendum fails to consider issues such as visual character and lighting impacts associated with the Project itself. For example, the Project will be introducing substantial glare from headlights and traffic movement in an area that currently is generally inactive after sunset. Yet the Addendum does not consider these impacts at all, relying instead on General Plan policies which were developed for the City as a whole, with no thought to individual project impacts when a project exceeded the General Plan's parameters. The Addendum also defers mitigation by stating that a lighting plan will be prepared. How can the City make an informed decision on the lighting impacts of the Project without a lighting plan and associated photometrics. The lighting impacts in particular must be analyzed for the freestanding parking structure, whose roof deck lighting will extend above the residential buildings planned at the northwest corner of Uptown Newport. The Addendum simply states that light fixtures must be shielded per City policy. What the Addendum fails to consider, however, is that in this case, light from the roof Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 7 of 18 deck, which will extend to 65 feet above ground (25 feet above the 40 foot parking structure) will shine down onto the Uptown Newport building(s) adjacent, not across a horizontal plane as is normally considered for lighting impacts. This is a Project -specific impact which the City has failed to analyze which could significantly impact neighboring sensitive receptors. Air Quality The General Plan EIR relied on South Coast Air Quality Management District's (SCAQMD) 2003 Management Plan. That plan is no longer valid, and any analysis which uses that plan is by extension invalid. The SCAQMD adopted a substantially updated plan in 2016 which is currently in effect. It is based on much more well-developed science, and updated data that was not known, and could not be known in 2006. The General Plan analysis, therefore, is also out of date. The Addendum, however, attempts to compare apples to oranges, by discussing the 2003 plan in the General Plan discussion, and the 2016 plan in the Project discussion. The City cannot, without substantial evidence, assume that the Project, which is not consistent with the General Plan, is consistent with both plans. The Addendum asserts that the SCAQMD Management Plan is based on the City's population, housing and employment forecasts, and that since the Project is consistent with those forecasts, the Project is consistent with the Management Plan. That is simply not the case, since the Project proposes more units than were allowed in the General Plan. As a result, the Addendum's assertion that the Project is consistent with the Management Plan is wrong. Impacts will be greater than those considered in the Management Plan, and an EIR is required. Furthermore, the Project, because it exceeds the density allowed in the General Plan for the site, will generate greater trips and associated emissions. The Addendum falsely claims that the impacts associated with air emissions will be less than significant and that there will be no substantial change from the previous analysis. Although the Project, on its own, may not exceed SCAQMD thresholds, the 20% increase represented by the additional 52 units will, without question, worsen the significant cumulative impacts identified in the General Plan EIR, since that document presumably only analyzed 260 units for the site. Consequently, the Project will result in "a substantial increase in the severity of previously identified significant effects," (CEQA Guidelines Section 15162(a)(1)), and an Addendum is not the appropriate document to meet the requirements of CEQA. The Addendum discloses that seven pieces of heavy equipment will be used during the grading of the Project site. Given that the Project will require the removal of 114,000 cubic yards of dirt, and that the average load of a dirt hauler is 16 to 20 cubic yards, the Project will require 5,700 to 7,125 haul truck trips. Absolutely no trucks are identified Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 8 of 18 in Table 3.2-3. Therefore, it can be assumed that the air quality analysis and the localized construction emission calculations significantly underestimate the emissions generated by the Project. Once again, the Addendum demonstrates that the Project will have significantly greater impacts than it analyzes. As described above, the Project also has the potential to generate additional commercial uses. No commercial square footage is included in any of the air quality assumptions, and no analysis of commercial uses' impacts was provided. As such, the air quality analysis is incomplete and insufficient. Finally, the Addendum fails to analyze the health effects of air emissions on employees in neighboring businesses and residents of Uptown Newport for the three-year construction period, and in the long term. As clearly required by the Court in Sierra Club v. County of Fresno (2018) 431 P.3d 1 151, an environmental document must determine the impacts to peoples' health resulting from implementation of the Project. Without such an analysis, the air quality impacts have not been thoroughly analyzed, and the City cannot make an informed decisions on the impacts of the Project. Cultural Resources and Tribal Cultural Resources First and foremost, the Addendum does not discuss Tribal Cultural Resources at all. CEQA requires that these be addressed, and AB 52 requires that the City conduct Tribal consultation for this project (and since this Project also requires a General Plan Amendment, SB 18 Tribal consultation is required). No mention of Tribal consultation is made in the Addendum, and the City appears to have failed to meet its obligations under AB 52. This is a critical defect that renders the analysis incomplete and inadequate. The Addendum cites both General Plan policy and "Standard Conditions and Requirements" which are inconsistent. In the General Plan, policy HR 2.2 requires the presence of an archaeological monitor for all _ grading and/or excavation for a project where resources could occur. The Addendum concedes that the site has the potential to yield cultural resources, and since both the apartment building and the free-standing parking structure will excavate far deeper than any excavation undertaken for the current parking lots, this likelihood is heightened. Yet the Standard Condition requires only periodic monitoring. Periodic monitoring is inconsistent with the General Plan policy, and cannot assure that impacts will be mitigated, since it cannot be assumed that the archaeologist will be on-site when resources are uncovered. The Addendum, therefore, does not mitigate the potential impact to cultural resources, and the impact remains potentially significant and unavoidable. In this case, as required by CEQA, an EIR must be prepared. Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 9 of 18 Energy The General Plan EIR did not address Energy Resources in 2006. In this case, the City chose to address the issue as it relates to the Project, unlike other environmental issue areas in the document, as discussed above. That discussion, as it relates to General Plan build out, is speculative and incomplete, since the General Plan did not address the use of fossil fuels. In its discussion of the Project, the Addendum concludes that the Project will have less than significant impacts on Energy Resources, even though SCE [Southern California Edison] "forecasts that it would have adequate electricity to meet the expected growth in its service area through 2026."1 Given that the Project is planned to open in 2024, is the City approving a project that SCE will be unable to serve within two years of occupancy? Given the constant summertime rolling blackouts, flex -alerts and conservation warnings issued by SCE in recent years for its service area, it is likely that the 2026 estimate is aggressive. The Addendum fails to provide substantial evidence that the Project can be served by SCE, and that impacts will be less than significant. In addition, in its discussion of fossil fuel consumption for the Project, the Addendum appears to ignore the more than 7,000 haul trips that will be necessary for the proposed Project. That many haul trips, each for a distance of 20 miles, does not represent an efficient use of energy. The City must address this wasteful use of energy to comply with CEQA. In its discussion of cumulative impacts, the Addendum continues to claim consistency with the General Plan. The Project proposes 20% more units than the General Plan allows or considered in its EIR. Therefore, the Project will increase impacts to Energy Resources over those considered in the General Plan EIR, and impacts will be greater than that previously analyzed. As it relates to Energy Resources, there are potentially significant impacts, and an EIR must be prepared. Geology and Soils The analysis provided in the Addendum is inconsistent with the professionally prepared geotechnical analysis included as Appendix B of the Addendum. In the Addendum, the City asserts that Standard Conditions are all that the Project will require. Appendix B, however, identifies a series of mitigation measures in its recommendation section, including the use of concrete structural mat foundation systems, because of the conditions on the site. The City's Standard Conditions for approval of a grading plan are hardly equivalent to the mitigation measures required in Appendix B. The Appendix demonstrates that impacts associated with geology and soils could be significant, and I "Residences at 4400 Von Karman Addendum to the General Plan Program EIR," page 64. Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 10 of 18 that Project -specific mitigation measures are required to reduce impacts to less than significant levels. As relates to paleontological resources, the Addendum makes the same mistake as under cultural resources. It cites both General Plan policy and "Standard Conditions and Requirements" which are inconsistent. In the General Plan, policy HR 2.2 requires the presence of a paleontological monitor for all grading and/or excavation for a project where resources could occur. The Addendum asserts that the Project would implement policy HR 2.2 if ground -disturbing activities "impact previously undisturbed grounds." Since both the apartment building and the free-standing parking structure will excavate far deeper than any excavation undertaken for the current parking lots, to depths in excess of 20 feet, the Project will encounter soils not previously disturbed. Yet the Standard Condition requires only that a paleontologist be "on-call." Without on-site monitoring, the Standard Condition is inconsistent with the General Plan policy, and cannot assure that impacts will be mitigated, since nothing in the Standard Condition requires the presence of a monitor. The Addendum, therefore, does not mitigate the potential impact to paleontological resources, and the impact remains potentially significant and unavoidable. As required by CEQA, an EIR must be prepared. As described above, the Addendum is inconsistent with the professionally prepared technical report and General Plan policy, and has not provided substantial evidence that the Project's geotechnical and paleontological impacts can be mitigated to less than significant levels. Greenhouse Gas Emissions The Addendum incorrectly states that because the General Plan EIR does not address greenhouse gases (GHG), and because the Housing Element's CEQA document found GHG impacts less than significant, the impact is assumed to be less than significant overall. This argument fails under CEQA. The City cannot compare the analysis of Housing Element policies on GHGs with the actual generation of GHG emissions at General Plan build out. The Housing Element in no way considered build out of all land uses in the City, and cannot be relied upon to accurately reflect GHG impacts at General Plan buildout. Furthermore, the Addendum does not provide substantial evidence, through the preparation of a General Plan build out analysis of GHG impacts, that impacts would be less than significant. The City cannot, without providing substantial evidence, make this assumption. In addition, although the Addendum asserts that the City knew, when the General Plan EIR was prepared, it provides no evidence that the City considered GHG reduction strategies in its General Plan, or that General Plan build out would not have a significant impact on GHG emissions. If the information is not "new," as the Addendum asserts, then the analysis should have been provided, in order for the City to be able to determine significance. Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 11 of 18 As relates to the analysis of the Project, the Addendum once again asserts that the Project will not result in increased capacity or density in the zone. As described repeatedly above, that is simply not true. The KBC area was assigned a maximum of 260 units, while the Project proposes 52 more units, and the City has already approved 2,038 units, so the most the Project could generate within the General Plan capacity is 162 units. When the Project, which exceeds General Plan capacity, is added to other projects, it will result in greater impacts to GHG than considered in the General Plan, and in the Housing Element CEQA document, because it proposes more units. As described above, the Project also has the potential to generate additional commercial uses. No commercial square footage is included in any of the GHG assumptions, and no analysis of commercial uses' impacts was provided. As such, the GHG analysis is incomplete and insufficient. Therefore, the Addendum fails to provide substantial evidence that the impacts of the Project on GHG emissions will be less than significant, and a potentially significant impact is likely. As a result, the provisions of CEQA Guidelines Section 15162 do not apply, and an EIR must be prepared. Hazards and Hazardous Materials The Addendum's analysis of the potential for exposure of neighboring buildings' employees, construction workers and residents to hazards at the adjacent Jazz semiconductor facility is completely inadequate on multiple fronts. That property has been studied and remediated for many years, and offsite hazards have been identified. As described in Appendix H of the Uptown Newport EIR, the worst case "Toxic Endpoint" for Anhydrous Ammonia is 6,336 feet, for Boron Trichloride 3.696 feet, for Chlorine 1,056 feet, for Hydrofluoric Acid 6,336 feet and for Sulfuric Acid 252 feet from the Jazz property.2 The Project's free-standing parking structure is immediately adjacent to the Jazz property, and the apartment buildings are 700 feet from the Jazz property, in the direction of contamination. The EIR for Uptown Newport identified significant impacts for both on-site and off-site residents and occupants, and required multiple mitigation measures. The Addendum fails to disclose that the plume of contaminated soils and groundwater extends northwesterly of the Jazz site, and into the Project site. As described in the attached letter from EKI Environment and Water (Attachment B), soil, soil vapors and shallow and intermediate groundwater are contaminated. The Project will include extensive excavation for the free-standing parking structure's foundations and pilings, as well as at least 20 feet of excavation under the apartment building to accommodate 2 "Offsite Consequence Analysis for TowerJazz Semiconductor Facility," The Planning Center, August 2012. Please see Attachment A. Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 12 of 18 the parking garage. Both of these activities will result in a significant impact associated with hazardous materials from both construction and operation of the Project. In the case of construction, the excavation will expose contaminated soils, and since perched groundwater occurs in this area, dewatering of excavated areas with contaminated groundwater. No analysis of the potential impacts of this exposure is conducted in the document, and no mitigation proposed. During operations, as stated in Attachment A, volatile organic compound vapors will impact the subterranean parking areas, and the residents and business tenants who will park there. This is not an impact that was considered in the General Plan EIR, and cannot be resolved through policy. Long term exposure to hazardous materials is a significant hazard that cannot be glossed over. The Jazz facility continues to operate, and based on the Uptown Newport phasing plan, will still be in operation when the Project is under construction. The Project has the potential to be significantly impacted, and the CEQA document must analyze these potential impacts, determine what mitigation measures are required (including those in the Uptown Newport EIR), and include them in a Project EIR. Without this analysis, the Addendum defers mitigation, does not disclose significant impacts to decision makers or the public, and cannot determine whether impacts can be reduced to less than significant levels. Hydrology and Water Quality As was the case with the Addendum's air quality analysis, the groundwater resources analysis also compares apples and oranges. The General Plan EIR used the 2005 Urban Water Management Plans (UWMP) from the City's various domestic water providers as the basis of its analysis. The Addendum, however, analyzes water resources using 2015 UWMP data. The Addendum also asserts, falsely, that the Project is consistent with the General Plan, which it is not. In the case of groundwater resources, the Project will generate demand 20% higher than that considered in the General Plan EIR and the UWMP for that property. The Addendum asserts, without substantial evidence, that the Project will rely on the existing drainage system and the Project's drainage will be less than current conditions. No schematic or description of the proposed on-site drainage facilities is provided, and no explanation of the calculations provided in Table 3.9-1 are included in the Addendum. Furthermore, no hydrology study is provided as an Appendix, so no analysis of drainage is provided. Is the Von Karman storm flow draining to a storm drain or will it be carried in the street to another storm drain further downstream? Do the existing storm drains have the capacity to accommodate flows? According to the Addendum, the General Plan determined that build out of the General Plan could not be Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 13 of 18 accommodated within the existing drainage facilities, and that the Storm Drain Master Plan would be amended to assure sufficient facilities. There is no evidence in the Addendum that these amendments have been made, or that the storm drain system has capacity to accommodate the Project's storm flows. The Addendum states that there is a storm drain under the proposed free-standing parking structure, which may or may not be relocated. Nowhere in the Addendum, however, are the impacts of relocation, or preservation in situ considered. If it is to be relocated, will this occur on-site, or will additional land not analyzed in the Addendum be required? Although no analysis is provided, the Addendum determines in one sentence that there would be no impact and that there are no changes or new information requiring an EIR. This is unacceptable under CEQA. Assumptions are not facts, and without facts the Addendum cannot assume no impact. The Addendum states that the Project will include an infiltration basin and Modular Wetlands System, vegetated swales and bioretention basins to address polluted surface waters. There is no evidence, in the document or on the Project plans, of these areas. Further, the existence of infiltration basins contradicts the description of storm flows being collected into an existing piped drainage system. The Addendum must provide sufficient information on the proposed drainage plans for the Project to make analysis of the adequacy of these plans possible. The Addendum also fails to address how water quality control at the subterranean parking structure will be addressed. The site occurs in an area of high groundwater, in some locations as shallow as 10 feet. The parking structure will require a minimum of 20 feet of depth below ground to accommodate the two subterranean parking levels. Drainage from the parking structure will be polluted by oils, chemicals and other substances deposited by vehicles onto the parking surface, which presumably will be carried to drains at the bottom of the structure. Since the structure will occur within groundwater areas, the Addendum must consider whether the drainage system proposed could impact groundwater when released from the structure, and what mitigation measures must be implemented to protect groundwater. Land Use and Planning As described at length throughout this document, the Project is not consistent with the General Plan, with the units allowed in the MU -H2 zone, or with the ICDP. Specifically, analysis of policies 6.15.5, 6.15.6, 6.15.8 and 6.15.13, which apply directly to the Project site show that the Project as proposed exceeds the allowable density, does not meet residential village size requirements, minimum density requirements, or park amenity requirements. Furthermore, the Project is inconsistent with the Housing Element, which repeatedly assigns, in text and tables, 260 units to the property. As a result, the Addendum cannot conclude that the Project is consistent with land use plans, and must Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 14 of 18 declare a significant and unavoidable impact, unless the Project is amended to include, and analyze in a CEQA document, General Plan text amendments to change these policies. Without these amendments, the impacts of the Project on land use plans cannot be mitigated. Noise The noise analysis is flawed. First, it assumes that the project is consistent with the General Plan's density and intensity, which it is not. Based on current approvals, the City has already allowed 2,038 units in the Airport Area, and the Project cannot exceed 162 units to remain consistent. Because the Project exceeds the assumptions of the General Plan, it also will result in higher noise levels, particularly from vehicle trips. Second, the Addendum asserts that Table 3.12.3 shows that the highest noise level on the site would be 64.6 dBA. Table 3.12.3 describes noise levels on several streets, but does not include Birch Street, so it is not possible to determine the noise levels to units adjacent to Birch Street, which occur as close as 29 feet from the back of curb. The Table further only provides noise levels for Von Karman north of Campus Drive, which is '/4 mile north of the Project site. No noise contours are provided for either street adjacent to the Project. It is therefore impossible for the Addendum to assert any noise level at the Project. Third, the method used to calculate on-site noise is unacceptable, and inconsistent with industry standards. On-site noise is calculated by first monitoring existing noise levels on a site, at various locations that would be representative of the project's sensitive receptor areas. In this case, since the park is adjacent to the roadways and closest apartments are proposed 30 feet from both Von Karman and Birch, monitoring equipment would have been placed at those locations, and recorded short and long duration noise levels. From that monitoring data, a competent noise engineer would have used the Project plans to determine the noise levels at ground floor and upper floor locations, on patios and balconies, as well as at ground level in the park. Without this analysis, the Addendum cannot determine the noise impacts to sensitive receptors, and the Addendum is inadequate in its analysis of noise impacts. Again, a proper noise impact analysis must be conducted, the findings described in an EIR, and mitigation measures identified and incorporated into the Project. Transportation First, the Addendum reveals that the Project site was not studied for 260 units in the General Plan, but for 128 units. This is the first time, in 161 pages of purported CEQA analysis, that such a significant shortfall is revealed. Indeed, the previous 160 pages assert repeatedly that the Project was analyzed in the General Plan EIR. At least in its transportation analysis, that is clearly not the case, and leads one to posit that other Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 15 of 18 analyses, such as air quality and noise, made assumptions that were far below what the General Plan allows, let alone what the Project now proposes. The Addendum provides the thresholds of significance used by the City to determine traditional Level of Service (LOS), and asserts that only this means of analysis was required, because Vehicle Miles Traveled (VMT) analysis was not required in 2006. These conditions result in multiple failures in the traffic analysis. First, as relates to thresholds of significance, the City has two thresholds - significant impacts would occur if an intersection operating at acceptable levels were to drop to an unacceptable level; and significant impacts would occur if an intersection operating at an unacceptable level would result in the Intersection Capacity Utilization (ICU) increasing by 1% (a volume to capacity increase of 0.010 or more). The Addendum, based on a traffic impact analysis appended to the document, considers multiple scenarios, including opening year and General Plan build out, with and without the Project. According to the Addendum, and based on the analysis of a qualified traffic engineer, opening year with Project impacts result in slightly increased ICU delays, but all are within the City's thresholds. However, because the General Plan EIR significantly under -estimated the units at the Project site, the traffic study also analyzes the impacts of the Project on General Plan build out conditions. Under those conditions, although Table 3.16-9 states that there is no impact, three failing (LOS E or F) intersections result in increases in ICU of 0.010 in the AM peak hour- MacArthur Boulevard at Jamboree Road; Jamboree Road at Birch Street; and Bristol Street North and Campus Drive. The Addendum and traffic study go on to falsely state that the Project will have no impact on traffic. Clearly, both documents are mistaken. The City's threshold for failing intersections is an ICU increase of 0.010, and three failing Project intersections result in an increase of 0.010 when the Project is added to General Plan build out traffic levels. In addition, the cumulative impact analysis falsely concludes that the Project will have no cumulative impact on traffic. Given the General Plan build out impacts, this is clearly not the case. Therefore, the Addendum has identified a significant impact, as defined in the City's own thresholds of significance. An EIR must be prepared. As relates to VMT analysis, consistent with explanations provided above, the fact that the General Plan EIR did not require VMT analysis does not exempt the City from now conducting VMT analysis for the Project. Actually, the CEQA Guidelines are explicit: "Beginning on July 1, 2020, the provisions of this section shall apply statewide." (Section 15064.3(c)) Furthermore, Section 15007(b) states, in part, "New requirements in amendments will apply to steps in the CEQA process not yet undertaken by the date when agencies must comply with the amendments." In this case, the Addendum was released by the City long after the July 1, 2020 deadline. Furthermore, VMT analysis is new information, which was not known at the time the EIR was prepared, and triggers the need for additional environmental analysis under Section 15162. Therefore, the City Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 16 of 18 must comply and prepare VMT analysis, determine whether the Project will result in significant impacts, and whether mitigation measures are required. This must be done in conjunction with the preparation of an EIR. The Addendum also fails to adequately analyze the impacts of construction traffic. The Project is proposed on a fully developed site. As stated previously, no staging areas or construction vehicle parking areas are proposed. Construction will extend over a three year period, in a fully occupied, fully operational office park. Yet the Addendum does not quantify, nor does it analyze the impacts of dozens of construction workers' vehicles traveling through and parking on a site which will already be underparked because of construction activities; or the effect of 7,000 haul trucks waiting for, being loaded with and carrying the 114,000 cubic yard of exported soil through the surrounding office park over months of excavation work. The Addendum must consider all of the potential impacts of construction traffic, not just those on City streets. As currently written, the Addendum fails to adequately analyze construction traffic impacts. Utilities and Service Systems As with the balance of the Addendum, the utilities and service systems analyses are conducted on the basis that the Project is consistent with the General Plan. Clearly it is not, and the Project will generate demand for more potable water, more wastewater treatment and more landfill capacity than what was calculated for the General Plan. Although the Addendum quantifies the Project's demand, it does not consider or analyze whether these increases would result in additional impacts. This analysis is particularly critical when considering General Plan build out, not current conditions. The Addendum should analyze not only the Project's immediate impacts, but also whether those impacts, when added to other projects resulting in build out of the City, would affect capacity. Conclusion As enumerated at length above, the proposed Project will result in impacts that are significant, and the requirements of CEQA Guidelines Section 15162 have not been met. This Project must be properly analyzed through the appropriate CEQA document, in this case an Environmental Impact Report. Sincerely, Nicole Sauviat Criste Principal Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Page 17 of 18 Attachment A Uptown Newport OCA Analysis OFF-SITE CONSEQUENCE ANALYSIS FOR: TOWERJAZZ SEMICONDUCTOR FACILITY prepared for.- CITY or. CITY OF NEWPORT BEACH Contact: Rosalinh Ung Associate Planner prepared by: THE PLANNING CENTER I DC&E Contact: Cathleen Fitzgerald, P.E. Senior Engineer AUGUST 2012 3300 Newport Boulevard Newport Beach, California 92663 9841 Airport Boulevard, Suite 1010 Los Angeles, CA 90045 Tel: 310.670.9221 • Fax: 310.670.9512 Website: www.planningcenter.com OFF-SITE CONSEQUENCE ANALYSIS FOR: TOWERJAZZ SEMICONDUCTOR FACILITY prepared for.- CITY or. CITY OF NEWPORT BEACH Contact: Rosalinh Ung Associate Planner prepared by: THE PLANNING CENTER Contact: Cathleen Fitzgerald, P.E. Senior Engineer CNB-13.OE AUGUST 2012 Table of Contents Section Page 1. INTRODUCTION.....................................................................................................................1 1.1 PURPOSE........................................................................................................................... 1 1.2 SITE LOCATION AND PROJECT........................................................................................ 1 1.3 REGULATORY REQUIREMENTS....................................................................................... 1 1.4 REPORT OBJECTIVES....................................................................................................... 2 1.5 REFERENCES USED FOR ANALYSIS................................................................................ 3 2. HAZARD ASSESSMENT........................................................................................................4 2.1 CHEMICAL USAGE, STORAGE LOCATIONS, AND SAFETY PROVISIONS ......................4 2.2 LAND USE AND TERRAIN.................................................................................................. 5 2.3 OFFSITE CONSEQUENCE ANALYSIS METHODOLOGY .................................................. 5 2.4 ANHYDROUS AMMONIA ANALYSIS.................................................................................. 8 2.5 BORON TRICHLORIDE ANALYSIS..................................................................................... 9 2.6 CHLORINE ANALYSIS ANALYSIS.................................................................................... 10 2.7 HYDROFLUORIC ACID ANALYSIS................................................................................... 11 2.8 SULFURIC ACID ANALYSIS.............................................................................................. 12 2.9 SUMMARY AND RECOMMENDATIONS.......................................................................... 13 3. REFERENCES...................................................................................................................... 15 Off -Site Consequence Analysis The Planning Center Towerk= Semiconductor Facility August 2012 • Page 1 Table of Contents List of Figures Figure 1 Phase 1 Site Layout and Chemical Storage Locations List of Tables Table 1 Chemical Usage at the TowerJazz Semiconductor Facility Table 2 Chemical Locations and Maximum Container Amounts List of Appendices Appendix A. Calculations Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page ii 1. Introduction 1.1 PURPOSE This report presents the results of an off-site consequence analysis that assesses the potential impact of chemical releases from the TowerJazz Semiconductor Facility to residents of Phase 1 of the Uptown Newport project. For this report, off-site is defined as any activity or receptors located beyond the boundaries of the TowerJazz facilty. The TowerJazz Semiconductor Facility would continue operation during construction and occupancy of Phase 1 of the project. During Phase 2 of the project, the TowerJazz facility would be closed and demolished during site clearance activities. 1.2 SITE LOCATION AND PROJECT The 25.05 -acre project site is within the Airport Area of the City of Newport Beach, County of Orange, California. It is on the east side of Jamboree Road, between Birch Street and the intersection of Von Karman Avenue and MacArthur Boulevard. The proposed project would be a multi -family residential community with neighborhood -serving retail uses. The site plan includes up to 1,244 residential units, 11,500 square feet of retail, and 2 acres of planned park area. There are two existing onsite industrial buildings at 4311 and 4321 Jamboree Road. The TowerJazz Semiconductor Facility, which is located at 4321 Jamboree Road and is within the project site boundaries, would remain in operation during Phase 1 of the project. The other business would be closed and the building would be demolished during Phase 1. The proposed schedule indicates that Phase 1 residences would be available for occupancy in 2018. Although Phase 2 is scheduled to begin in 2021, the TowerJazz facility could extend their manufacturing operations until 2027 if a subsequent lease option is exercised. Therefore, operations at the TowerJazz facility could continue for a period of 3 to 9 years with adjacent residential use. The location of the residential units for Phase 1 of the Uptown Newport project and the location of the chemical storage areas at the TowerTowerJazz Semiconductor Facility are shown in Figure 1. 1.3 REGULATORY REQUIREMENTS The Newport Beach Fire Department has adopted an amendment to the California Fire Code (Section 2704.1.1), which states the following: No person shall use or store any amount of extremely hazardous substances (EHS) equal to or greater than the disclosable amounts as listed in Appendix A, Part 355, Title 40 of the Code of Federal Regulations in a residential zone or adjacent to property developed for residential uses. There are five extremely hazardous substances that are stored in quantities above the reportable quantities (RQ) listed in Appendix A, as shown in Table 1. The chemicals listed in Table 1 and summarized herein will be analyzed in this report: • Anhydrous ammonia • Boron trichloride • Chlorine • Hydrofluoric acid (49%) • Sulfuric acid Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page I 1. Introduction 1.4 REPORT OBJECTIVES AND METHODOLOGY The purpose of this off-site consequence analysis report is to meet the following objectives: • Identify and characterize the quantities and locations of hazardous chemicals stored at the TowerJazz Semiconductor Facility; • Determine the distance from the chemical storage locations to the nearest residences for Phase 1 of the Uptown Newport project; • Conduct computer modeling using USEPA's RMP or ALOHA computer program to determine worst-case accident release scenarios and alternative release scenarios and distances to the toxic endpoints; • Determine potential impacts and safety risks at the nearest residential receptor; and • As appropriate, identify and develop mitigation measures to reduce risk to an acceptable level. As per discussions with the City of Newport Beach, the methodology used in this report includes the following: • Worst-case scenario — analyzed using USEPA's computer model RMP*Comp, nighttime meteorological conditions (Stability Class F and wind speed of 1.5 m/sec), and instantaneous release from the largest container stored on-site. Passive mitigation measures, such as diked areas or releases within buildings, can be considered as per USEPA guidance • Alternative release scenario — analyzed using RMP*Comp assuming daytime meteorological conditions (Stability Class D and wind speed of 3 m/sec) and ALOHA using nighttime meteorological conditions. Alternative release scenarios consider more realistic release scenarios, such as a break in the piping or tubing of the storage vessel, and active mitigation measures, such as automatic shutoff valves and/or water spray mitigation, can be considered as per USEPA guidance • The impacts and risks to Phase 1 residential receptors were determined using the toxic endpoints specified in Appendix A to 40 CFR 68. • Because sulfuric acid in not in the RMP*Comp database of chemicals, the worst-case and alternative case scenarios for this chemical were analyzed, using the ALOHA computer program. Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 2 1. Introduction 1.5 REFERENCES USED IN ANALYSIS The following references were used to develop accident scenarios and evaluate risk to occupants of the Phase 1 Uptown Newport project: • California Accidental Release Prevention (Ca/ARP) Program, Administering Agency Guidance. Office of Emergency Services (OES). January 2005. • Risk Management Program Guidance for Offsite Consequence Analysis. US Environmental Protection Agency (USEPA). March 2009. EPA Report No. 550-8-99-009. • Supplemental Risk Management Program Guidance for Wastewater Treatment Plants. Appendix F. USEPA. March 2009. • Technical Background Document for Offsite Consequence Analysis for Anhydrous, Aqueous Ammonia, Chlorine, and Sulfur Dioxide. USEPA. April 1999 • RMP*Comp. USEPA computer model, Version 2.01, for performing offsite consequence analysis required under USEPA's Risk Management Program (RMP) rule. 2012. Website: http://www.epa.gov/oem/content/rmp/rmp_comp.htm • Areal Location Hazardous Atmospheres (ALOHA) computer model. 2007. • Guidelines for Chemical Process Quantitative Risk Analysis. American Institute of ChemicalM? Engineers. 2000. C070 Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 3 2. Hazard Assessment 2.1 CHEMICAL USAGE, STORAGE LOCATIONS, AND SAFETY PROVISIONS A current list of the extremely hazardous chemicals used at the TowerJazz Semiconductor Facility that exceed reportable quantities is provided in Table 1. The chemical storage locations and the maximum container volumes used for this analysis are provided in Table 2. The storage locations of the chemicals are shown on Figure 1. Anhydrous ammonia is currently stored in a 2,224 -gallon pressurized tank located south of the cooling towers. TowerJazz is currently evaluating the relocation of this tank. The storage area, which also includes four wastewater neutralization tanks, is partially enclosed with three walls and a roof. The entire area, which is diked with dimensions of 30 feet by 117 feet by 1.5 feet high, would contain a catastrophic simultaneous release from all four tanks. Other mitigation safeguards include: • The ammonia storage area is equipped with a water spray mitigation system, which consists of water fog sprays that effectively disperse a vapor cloud and cool the vessel in the case of a fire • The area is equipped with alarms, pressure relief valves, excess flow valves, and emergency block valves to prevent or limit the severity of a release • The area is equipped with an ammonia leak detection system with audible and security center alarms. The water spray mitigation system will activate automatically upon receiving a signal from the alarm system • The ammonia tank volume is limited to 85% of the total capacity to reduce the quantity of M? ammonia available for release C070 • The outdoor enclosure is protected by closely spaced traffic posts to prevent delivery trucks from accidentally backing into the tank area • An emergency shut-off panel is located at the tank and at the northwest corner of the Pacific Building Boron trichloride is stored in 110 -Ib cylinders in various locations on the second floor of the main (Atlantic) Building. For purposes of this analysis, it is assumed that at least one cylinder is located in the gas storage room along the south side of the Atlantic Building, which would be the closest location to Phase 1 residences for the proposed project. The gas storage room has two-hour rated fire walls and doors and is equipped to withstand pressures of up to 150 psi. Full sprinkler protection is also provided in the room as well as a toxic gas monitoring system (TGMS) with automatic shutdown. Upon detection of a release by the TGMS, the system is wired to close the automatic control valves and stop the flow of gas. Also, the cylinders are contained in a 2 -cylinder gas cabinet with continuous ventilation as per the 2010 California Fire Code. Exhaust from the gas cabinets is vented to a scrubber before discharge to the atmosphere. Chlorine is currently stored in 110 -Ib cylinders in the gas room on the second floor of the Bulk Chemical Storage Building, which is located along the northwest side of the Atlantic Building. The Bulk Chemical Storage Building is a two story, 34 -foot by 110 -foot seismic rated steel frame building with reinforced concrete block walls. The building was base isolated as part of the 2000 earthquake upgrade project. The gas room is also equipped with a TGMS, which upon activation will automatically stop the chemical flow and close the automatic control valves. The chlorine cylinders are also contained within gas cabinets with continuous ventilation, which are vented to a scrubber prior to atmospheric discharge. Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 4 2. Hazard Assessment The hydrofluoric acid (49% and 5%) is delivered in 55 -gallon drums and transferred into day tanks with a maximum capacity of 211 gallons in Bay 1 of the Bulk Chemical Storage Building. The building is divided into six bays with separate areas for acids, base/oxidizers, and solvents. Each area is provided with containment for a spill involving the largest container and is protected by a sprinkler system. High level exhaust is also provided. There is no TGMS or chemical sensors in the area where the acids are stored. Sulfuric acid (96%) is stored in a 200 -gallon tank in Bay 1 of the Bulk Chemical Storage Building. However, there also is a 2,000 -gallon tank of 93% sulfuric acid connected to the air scrubbing system that is located in the Central Plant just southwest of the cooling towers. The Central Plant is constructed as a metal deck canopy on a steel frame supported by steel columns. It is open on three sides, with the north side being a free standing concrete block wall. The floor is concrete slab on grade. The Central Plant was subject to seismic retrofit in 2000 during the TowerJazz earthquake upgrade project. Additional details regarding safety devices, fire systems, chemical handling, and emergency response procedures can be found in the 2012 Business Emergency Plan (TowerJazz Semiconductor, 2012). TowerJazz uses a just -in -time (JIT) inventory system which limits the amount of chemicals that are stored on-site. 2.2 LAND USE AND TERRAIN Currently, there is no residential land use in the area of the TowerJazz Semiconductor Facility. However, the proposed Uptown Newport project would place multi -family residences in close proximity to this facility. Based on the Alta survey and architectural drawings provided by the applicant, the distances from the storage locations to the nearest proposed Phase 1 residence are as follows: • Anhydrous ammonia — 5 feet C070 • Boron trichloride — 110 feet • Chlorine — 190 feet • Hydrofluoric acid (49%) — 235 feet • Sulfuric acid (93%) — 100 feet Topography in the area is relatively flat, with a slight gradient to the west. In the unlikely event of an accidental release of chlorine or hydrofluoric acid from the Bulk Chemical Storage Building, the main (Atlantic) building is between the chemical storage building and the nearest proposed residence and could partially block or buffer vapor releases. There would be minimal blocking or buffering of ammonia vapors if an incident were to occur at the location of the outdoor ammonia storage area; the only intervening structure is the concrete block wall on the backside of the storage area. There also would be minimal structures or buildings to block or buffer gas releases to the nearest residential receptor if an incident were to occur where the boron trichloride cylinders are stored along the southeast wall of the Atlantic Building. However, these cylinders are stored within an enclosed space, which would minimize any gas release to the outdoors. There are no intervening structures between the Central Plant and the proposed residences in Phase 1; however, a sulfuric acid spill in this area would result in a pool with a slow rate of evaporation and minimal vapor dispersion. 2.3 OFFSITE CONSEQUENCE ANALYSIS METHODOLOGY The US Environmental Protection Agency's Risk Management Program (RMP) and the California Accidental Release Prevention (CaIARP) Program require off-site consequence analyses (OCAs) to have two elements: 1) a worst-case release scenario, and 2) an alternative release scenario. The worst-case scenario is defined as a release from the largest quantity of a regulated substance from a single vessel or process unit that results in the greatest distance to a toxic or flammable endpoint. Alternative release Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 5 2. Hazard Assessment scenarios are scenarios that are more likely to occur than the worst-case scenario. Modeling assumptions and meteorological conditions that must be used in conducting the OCA are specified in the California Code of Regulations (CCR), Title 19, Chapter 4.5, Article 2735.1 et seq. As per the CalARP program and USEPA RMP guidance, worst-case scenario assumptions that were used in these analyses are as follows: • Release of the largest quantity of a regulated substance from the largest vessel or container within a process • Nighttime conditions - wind speed of 1.5 meters per second (m/sec) and worst-case atmospheric stability class F • Default release temperature of 77°F for toxic gas releases and release temperature of 87°F as the highest daily maximum within the last 3 years for Newport Beach for toxic liquids • Humidity of 50% • Height of release — ground level • Surface roughness — urban • Passive mitigation, such as dikes or releases inside of buildings, can be considered as part of the worst-case scenario, as per USEPA and CalARP guidance. M? Alternative release scenarios are based on more likely accident occurrences, such as a release from a C070 hole in a vessel or piping. Also, active mitigation measures, such as automatic shutoff valves or water spray mitigation, can be considered in developing the alternative scenario. Water solutions containing regulated substances, such as hydrofluoric acid, are analyzed differently from pure toxic liquids. The evaporation rate varies with the concentration of the solution. If a concentrated water solution is spilled, the toxic substance will evaporate more quickly than the water from the spilled solution, and the vapor pressure and evaporation rate will decrease as the concentration of the toxic substance in solution decreases. For estimating release rates from the chemical solutions that are stored at the TowerJazz facility, the procedures described in the USEPA's Risk Management Program Guidance for Offsite Consequence Analysis (Exhibit B-3) were used. Only the first 10 minutes of the release were considered in the analysis, as per the USEPA guidance. The toxic component in the solution evaporates fastest during the first few minutes of a spill when its concentration is highest. Although the toxic substance will continue to evaporate from the pool after 10 minutes, the rate of evaporation is so much lower than it can be safely ignored in estimating the consequence distance. For worst-case scenarios, the USEPA computer model RMP*Comp was used, except for the evaluation of sulfuric acid. The RMP*Comp program does not contain sulfuric acid in its database; therefore, the USEPA ALOHA was used for this chemical. For alternative release scenarios, both the computer programs RMP*Comp and ALOHA were used. RMP*Comp is a screening tool that does not have the flexibility that ALOHA has for modeling mitigation measures and meteorological conditions. The RMP*Comp alternative analysis scenario does not have the option to consider nighttime conditions for the alternative model runs. Also, toxic endpoint distances Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 6 2. Hazard Assessment less than 0.1 mile are not reported. Therefore, the ALOHA model was also run for the alternative scenarios, using the same input parameters as RMP*Comp, but assuming nighttime meteorological conditions (Stability Class F and wind speed of 1.5 m/sec). The ALOHA model can calculate toxic endpoint distances in the near field so that more accurate safe separation distances can be calculated. Because the TowerJazz facility operates 24 hours per day, the ALOHA runs using low wind speeds and more stable conditions representative of nighttime conditions are considered to be a "worst-case" alternative release scenario. The assumptions used for the alternative release scenarios were as follows: • Process piping release assuming a complete break in the supply line; piping diameters provided by TowerJazz: - Ammonia tank - 1 -inch black iron pipe - Boron trichloride -'/4-inch line - Chlorine - Restrictive Flow Orifice (RFO) on cylinder to limit release - 0.03 -inch - Hydrofluoric acid and sulfuric acid - assumed spillage of all or 10% of tank contents • RMP*Comp - daytime conditions - wind speed of 3.0 m/sec and daytime atmospheric Stability Class D • ALOHA - nighttime conditions - wind speed of 1.5 m/sec and Stability Class F • Default release temperature of 77°F for toxic gas releases and release temperature of 87°F as the highest daily maximum within the last 3 years for Newport Beach for toxic liquids M? • ALOHA - nighttime relative humidity of 80% (based on climate data for Newport Beach) C070 • ALOHA - nighttime temperature of 56°F (based on average nighttime temperature from climate data for Newport Beach) • Height of release - ground level (although the boron trichloride and chorine gas cabinets are vented to stacks on the top of the building, it was conservatively assumed that receptors in multi- story units would be at the same height as the release) • Surface roughness - urban • Active mitigation measures, such as automatic shutoff valves or water spray mitigation systems, were considered as appropriate. The toxic endpoints listed in Appendix A of 40 CFR 68 were used to determine safe distances for this analysis. The toxic endpoints are either 1) the Emergency Response Planning Guideline 2 (ERPG-2), which is defined as the maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to one hour without experiencing or developing irreversible or other serious health effects or symptoms that could impair an individual's ability to take protective action, or 2) Level of Concern (LOC) derived for extremely hazardous substances. The toxic endpoints established by CalARP and USEPA that were used in the analysis are as follows: • Anhydrous ammonia - 200 ppm (ERPG-2) • Boron trichloride - 2 ppm (LOC) • Chlorine - 3 ppm (ERPG-2). • Hydrofluoric acid (49%) - 20 ppm (ERPG-2) • Sulfuric acid - 10 mg/m3 (ERPG-2) Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 7 2. Hazard Assessment The calculations and RMP*Comp and ALOHA computer output are provided in Appendix A. A summary of the results for each evaluated chemical is provided in the following sections. 2.4 ANHYDROUS AMMONIA ANALYSIS The 2,224 -gallon anhydrous ammonia storage tank is located in an outside enclosure just south of the cooling towers. Although TowerJazz is in the process of evaluating potential locations for relocation of this tank, it currently is approximately 5 feet from the nearest proposed Phase 1 residence. Ammonia is a colorless gas with a characteristic pungent odor; its chemical formula is NH,. Ammonia is easily liquefied by applying low pressure to the confined gas; this form is called anhydrous ammonia. The vapor density of ammonia is 0.59; therefore, ammonia typically is lighter than air and quickly disperses into the atmosphere when released. However, when large amounts of liquid ammonia are released to the atmosphere at once, the ammonia is initially cold and heavier than air. When first released from its liquid storage tank, ammonia is generally visible as a white fog caused by condensed atmospheric moisture. Ammonia acts as an alkali on human skin. Its effect can range from mild irritation to tissue destruction, depending on the length of exposure. The eyes and lungs are particularly susceptible to the caustic action of ammonia. Symptoms can include burning of the eyes, nose, and throat after breathing even small amounts. With higher doses, coughing or choking may occur. Exposure to high levels of anhydrous ammonia can cause swelling of the throat and/or chemical burns to the lungs. Most people recover from a single low exposure to anhydrous ammonia without any delayed or long-term effects. Anhydrous ammonia is not known to cause cancer. QQ C070 For the worst-case scenario, the procedures described in the USEPA OCA guidance document (1999) were used. It was assumed that all of the anhydrous ammonia in the tank was released over a period of 10 minutes and the release took place during worst-case meteorological conditions (Stability Class F and wind speed of 1.5 m/sec). No credit was taken for passive mitigation measures. The release was modeled using the computer program RMP*Comp. The results, which are provided in Appendix A, indicate that the ammonia toxic endpoint of 200 ppm would extend approximately 1.2 miles. The nearest residential receptor in Phase 1 of the proposed development would be approximately 5 feet from the ammonia storage location and therefore has the potential to be adversely impacted. Worst-case scenarios do not take into account the probability of a catastrophic release occurring. Industry data indicate that the probability of a catastrophic ammonia vessel failure is 3.0 x 10-8/year, or once every 33 million years (Marine Research Scientists, 2007). The USEPA RMP and CaIARP protocols also require identification of an alternative release scenario that is more realistic or more likely to occur. For this alternative release scenario, a break in the vapor feed line from the anhydrous ammonia storage tank was assumed. This is a conservative assumption because the 1 -inch line is enclosed by secondary containment piping. In the event of a feed line break, the exterior pipe should contain any release. If the internal and external piping both break, there are isolation valves and excess flow valves that would limit the amount of ammonia released. Airgas Specialty Products provided specifications for the excess flow valves that are installed at the ammonia storage tank. The information provided indicates that the valves will close when the flow in the 1 -inch line exceeds 9.38 Ib/min. This was therefore assumed to be the maximum possible flow rate in the line for the alternative scenario analysis; actual operating flow rates will be lower than this amount. Based on the presence of automated alarms, toxic gas detection system, ammonia diffusion system, and Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 8 2. Hazard Assessment automatic shutoff valves, it is anticipated that the duration of any release of ammonia would be much less than one minute. However, a one -minute release duration was assumed for the hazard assessment. In addition, there is a high volume water spray system surrounding the ammonia tank, which is designed to activate upon detection of ammonia in the atmosphere. The water spray is intended to intercept the released ammonia vapor and effectively knock the plume down aerodynamically and convert a large fraction of the ammonia into aqueous form for subsequent cleanup. The ammonia storage area is diked and has enough capacity to contain any water released from the water spray system. The control efficiency of the water spray system is estimated to be 90% or greater at releases less than 660 Ib/min (AIChE, 1997). Credit can be taken for active mitigation systems, such as water spray systems, and automatic shutoff valves, when evaluating alternative release scenarios. The RMP*Comp results for the alternative release scenario indicate a toxic endpoint distance of <0.1 mile, or approximately 528 feet. However, the model does not calculate distances of less than 0.1 mile. Therefore, the ALOHA model was run, using nighttime meteorological conditions, to get a more exact endpoint distance. The results indicate that the toxic endpoint of 200 ppm would extend to a distance of 192 feet. Since the ammonia tank currently is located at a distance of 5 feet from what would be the nearest Phase 1 residence, it is recommended that the ammonia tank be relocated to a distance of at least 200 feet from the nearest proposed residence, which would be a safe separation distance. 2.5 BORON TRICHLORIDE ANALYSIS Boron trichloride is a colorless gas with a pungent, irritating odor; its chemical formula is BCI,. Exposure to vapor concentrations above 5 ppm irritates the upper respiratory tract. High concentrations (greater than 50 ppm) cause the throat to burn and producing choking and coughing. Pulmonary edema, general QQ C070lung injury, and ulceration to the nose, throat, and larynx can also occur. Boron trichloride also causes severe skin irritation, chemical burns with ulceration, and potential scarring. Eye contact causes immediate pain and irritation with excess tearing and blinking. The gas reacts with moisture in the air to form hydrochloric acid. Boron trichloride is stored in several locations on the second floor of the Atlantic Building. The gas is stored in 110 Ib. cylinders, so the largest release amount for the worst-case scenario was considered to be 110 Ib. The gas is liquefied under low pressure (4.4 psig). For this analysis, the boron trichloride was assumed to be located in the process gas storage area, which would be the nearest location to a residential receptor during Phase 1 of the proposed project (110 feet). Because the release would occur inside a building, credit was taken for this passive mitigation measure for the worst case scenario. For the worst-case scenario, the computer model RMP*Comp was run, using the methodology and assumptions described in Section 2.3 and assuming a release inside the building (passive mitigation). The output indicates that the distance to the toxic endpoint of 2 ppm would extend out to 0.7 mile. Because the nearest potential receptor is located approximately 110 feet from the process gas storage area, this receptor could be exposed to adverse health impacts. Therefore, an alternative more realistic release scenario was prepared for this chemical. A rupture of the process piping connected to the cylinder was assumed for the alternative release scenario. The process line is constructed of 1/4 -inch poly tubing with clear PVC secondary containment piping; it was assumed that both the inner and outer piping ruptured. A release duration of 1 minute was assumed, because the storage area is equipped with a toxic gas monitoring system that automatically activates shutoff valves upon the detection of gas. In addition, credit was taken for the dilution ventilation in the gas cabinet, which is required by the California Fire Code. The released gas would be diluted with ambient air before being released through a stack at the top of the building. Also, the exhaust from the Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 9 2. Hazard Assessment gas cabinets are vented to a scrubber prior to discharge to the atmosphere, this additional mitigation measure was not included in the analysis. Credit also was not taken for an elevated release, because receptors at the multi -story Phase I development may be located at a similar height as the top of the building. Results from RMP*Comp estimate a distance to the toxic endpoint of 0.1 mile, or approximately 528 feet. However, the USEPA RMP*Comp is a screening model and does not calculate near -field distances (i.e., less than 0.1 mile). Therefore, the computer model ALOHA was also run, using the same input parameters but assuming nighttime conditions. The ALOHA results indicate a distance to the toxic endpoint of 84 feet. Since the nearest proposed receptor is located at a distance of 110 feet, no adverse impacts are expected. 2.6 CHLORINE ANALYSIS Chlorine is a non-flammable, greenish -yellow gas with a pungent odor. The gas is denser than air and will stay close to the ground when released into the atmosphere. It is corrosive because it forms hydrochloric acid when combined with water and is a powerful oxidant. Chlorine is highly irritating to the skin, eyes, and mucous membranes. It acts as a choking agent on the lungs, causing breathing difficulties and potential lung damage. It creates a burning sensation, cough, headache, labored breathing, nausea, and a sore throat. It can be very painful, causing skin burns, eye pain, blurred vision, and severe deep burns with close contact. At the TowerJazz facility, chlorine is stored in 110 Ib. cylinders in the gas room of the Bulk Chemical Storage Building. The nearest receptor for the proposed Phase 1 project would be located at a distance of approximately 190 feet. The release from one cylinder containing 110 Ib. is considered for the worst- case analysis. Credit was also taken for passive mitigation measures, because the release would occur C070 inside a building. The computer model RMP*Comp was run to determine the toxic endpoint distance for the worst-case release scenario. The worst-case release rate was calculated to be 6.05 Ib/min and the distance to the toxic endpoint of 3 ppm was estimated to be 0.2 mile, or 1,056 feet. Because the nearest receptor at 190 feet could be subject to adverse health impacts under the worst case scenario, an alternative release scenario was evaluated for this chemical. As was the case for boron trichloride, a break in the process piping from the cylinder was assumed for the alternative scenario, resulting in a continuous release. Credit was taken for restrictive flow orifices (RFOs), which limit the release rate of chlorine if a rupture of the line were to occur. The RFOs on the chlorine cylinders have a diameter of 0.03 inch. A release duration of 1 minute was assumed, based on the detection of gas from the toxic gas monitoring system and automatic activation of the shutoff valves; dilution ventilation from the gas cabinet was also considered in the analysis. However, credit for the exhaust gases passing through a scrubber was not considered, so the analytical results are conservative. Results from RMP*Comp estimate a distance to the toxic endpoint of <0.1 mile, or less than 528 feet. Because RMP*Comp does not calculate distances of less than 0.1 mile, the computer ALOHA was also run. Results from the ALOHA run assuming nighttime conditions indicate that the distance to the toxic endpoint would be less than 33 feet. All process gases are configured with double containment process piping, gas detection systems, automatic shutoff valves triggered by excess flow or gas detection, restricted flow orifices (RFOs) on the cylinders, automated purge panels, and are located in ventilated Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 10 2. Hazard Assessment gas cabinets. All of these safety features will minimize the potential for a gas release to the atmosphere. The distance to the nearest receptor for the Phase 1 development is 190 feet. Therefore, no adverse health impacts are expected to occur with the more realistic, alternative release scenario. 2.7 HYDROFLUORIC ACID ANALYSIS Hydrofluoric acid is a clear, colorless liquid, miscible with water, with an acrid, irritating odor. It is an extremely corrosive liquid and vapor that can cause severe injury via skin and eye contact, inhalation, or ingestion. Dilute solutions deeply penetrate before dissociating, thus causing delayed injury and symptoms. Skin contact results in painful deep-seated burns that are slow to heal. Burns from dilute (<50%) HF solutions do not usually become apparent until several hours after exposure. Hydrofluoric acid and HF vapor can cause severe burns to the eyes, which may lead to permanent damage. At 10 to 15 ppm, HF vapor is irritating to the eyes, skin, and respiratory tract. Exposure to higher concentrations can result in serious damage to the lungs. Hydrofluoric acid has not been reported to be a human carcinogen. Hydrofluoric acid at concentrations of 49% and 5% are used at the TowerJazz facility. The chemicals are delivered in 55 -gallon drums and stored in 211 -gallon day tanks in Bay #1 of Bulk Chemical Storage Building. The analysis was conducted for 49% hydrofluoric acid as a worst-case scenario; 5% hydrofluoric acid would have lower release rates and shorter distances to the toxic endpoints. For the worst-case scenario, the entire contents of the 211 -gallon 49% hydrofluoric acid tank (2,026 Ib) were assumed to spill onto the floor of the storage bay (Bay #1) in the Bulk Chemical Storage Building. Passive mitigation measures (i.e., a release inside the building) were assumed for the RMP*Comp computer run. The results for the worst-case scenario indicate that the distance to the toxic endpoint C070 would extend 1.2 miles. Since the nearest proposed residential receptor is at a distance of 235 feet, potentially adverse impacts could occur under the worst-case scenario. Therefore, a more realistic alternative release scenario was also conducted. For the alternative release scenario, it also was conservatively assumed that the entire contents of the HF acid tank spilled onto the floor. Additional passive mitigation measures (release within the building) were assumed. The USEPA OCA Guidance indicates that if a liquid is released inside a building, its release rate to outside air will be mitigated in two ways (USEPA, 2009). First, the evaporation rate of the liquid will be much lower inside the building, due to minimal wind speed, which affects the evaporation rate. The second mitigating factor is that the building provides resistance to the discharge of contaminated air to the outdoors. Only the first 10 minutes of evaporation are considered for solutions at ambient temperature, because the evaporation rate decreases rapidly as the substance evaporates and the concentration of the solution decreases. For the hydrofluoric acid alternative release scenario, a wind speed of 0.1 m/sec inside the building was assumed, as per the OCA guidance (USEPA, 2009, p. D-5), resulting in a wind factor of 0.166. Also, USEPA considers a building to have an overall mitigation factor of 10% (0.10). These two factors were used to calculate a release rate of 0.02 Ib/min for the alternative release scenario. The RMP*Comp results for the alternative release scenario indicate a toxic endpoint distance of 0.1 mile, or 528 feet. Because the RMP*Comp program does not provide endpoint distances of less than 0.1 mile, the ALOHA computer program was also run. The results from the ALOHA computer program, using nighttime meteorological conditions, indicate that the hydrofluoric acid toxic endpoint of 20 ppm would extend approximately 81 feet from Bay #1. The Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 11 2. Hazard Assessment nearest residential receptor in Phase 1 of the proposed development would be approximately 235 feet away and therefore would not be adversely impacted. 2.8 SULFURIC ACID ANALYSIS Sulfuric acid is a colorless, oily liquid with a density about twice that of water. Its chemical formula is H2SO4. It is a highly corrosive acid that can cause burns to the skin and respiratory symptoms, such as upper respiratory irritation, lung irritation, wheezing, shortness of breath, and a burning sensation with acute exposure. However, sulfuric acid has a very low vapor pressure (< 1.0 mm Hg) and therefore, vapors generated from the evaporation of spilled liquid are minimal and impacts are not likely to extend off-site. Concentrated sulfuric acid should not be confused with oleum, or fuming sulfuric acid, which is formed when an excess of sulfur trioxide is dissolved in concentrated sulfuric acid. Its chemical formula is H2S20,. Sulfuric acid is listed as an extremely hazardous substance (EHS) in Appendix A, Part 355 of Title 40 CFR at a reportable quantity of 1,000 Ib. It is not included in the CalARP list of State regulated substances unless it meets the definition of oleum. Sulfuric acid also is not included as a chemical in the USEPA RMP guidance document nor is it included in the 40 CFR 68 Appendix A for toxic endpoints. It also is not included in the RMP*Comp and ALOHA computer databases. Oleum (also known as fuming sulfuric acid) is listed in the USEPA guidance document and in the ALOHA database. For this worst-case analysis, it was conservatively assumed that the sulfuric acid stored in the Bulk Chemical Storage Building contains 4% sulfur trioxide (oleum). However, the actual amount of oleum in 96% sulfuric acid is negligible. Nevertheless, to be conservative, a 4% oleum concentration was used as input into the ALOHA model to simulate a release of sulfuric acid. Because sulfuric acid is not included in the RMP*Comp database, both the worst-case and alternative release scenarios were modeled using ALOHA. C070 Sulfuric acid is stored in two locations at the TowerJazz facility. A 200 -gallon tank of 96% sulfuric acid is stored in Bay 1 of the Bulk Chemical Storage Building and is used for chip wafer fabrication. There also is a 2,000 -gallon tank of 93% sulfuric acid located in the central plant building just southwest of the cooling towers, which is used for the air scrubbers. Because the 93% sulfuric acid tank has a larger capacity and is located closer to the proposed residences for Phase 1, this was evaluated for the worst- case scenario. This tank is located approximately 100 feet from the nearest proposed residence. The worst-case analysis assumed that the largest container of sulfuric acid stored on-site (2,000 gallon tank) was released within the area of the Central Plant. The tank has secondary containment but is not located within a diked area and the central plant is open to the atmosphere (walled on three sides with a roof). Therefore, the worst-case scenario was assumed to take place outdoors with no passive mitigation measures. The ALOHA model calculates an evaporation rate based on the amount of liquid spilled and the formation of a pool that is 1 centimeter deep. However, it should be noted that this release scenario is based on 4% oleum, which evaporates at a much higher rate than 93% sulfuric acid, and therefore, these results are conservative. The results from the ALOHA model for the worst-case scenario indicate that the distance to the toxic endpoint would be 252 feet. Since the nearest receptor would be 100 feet from the central plant, there is the potential for adverse impacts, and an alternative release scenario was postulated. For the alternative release scenario, it was assumed that there was a release of 10% of the contents of the 2,000 -gallon, either due to a hole in the tank or a break in the piping. The ALOHA model predicted a distance to the toxic endpoint of 57 feet, which is much less than the distance to the nearest receptor (100 feet). Therefore, no adverse impacts are expected from this release scenario. Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 12 2. Hazard Assessment 2.9 SUMMARY AND RECOMMENDATIONS The results of the offsite consequence analyses are summarized in the following table: Chemical Anhydrous Boron Chlorine Hydrofluoric Sulfuric Acid Ammonia Trichloride Acid Distance to Nearest 5 110 190 235 100 Residential Receptor (ft) RMP*Comp Worst-case Analysis - Distance to Toxic 6,336 3,696 1,056 6,336 252* Endpoint (ft) Toxic Endpoint Exceeded at Yes Yes Yes Yes Yes Residential Receptor? RMP*Comp Alternative Release Analysis - Distance <528 528 <528 528 to Toxic Endpoint (ft) Toxic Endpoint Exceeded at Yes Yes Yes Yes Residential Receptor? ALOHA Alternative Release Analysis - Distance to Toxic 192 84 <33 81 57 Endpoint (ft) Toxic Endpoint Exceeded at Yes No No No No Residential Receptor? *Worst case analysis run with ALOHA model; sulfuric acid not in RMP*Comp database The worst-case scenario results are conservative for the following reasons: • No credit was taken in the analyses for active mitigation measures or safety features such as automatic sprinkler system, toxic gas monitoring system (TGMS,) and automatic control valves • The analyses do not consider the probability of the release occurring • It is assumed that the wind would be blowing directly toward the receptor; wind rose data for the nearest meteorological station (Costa Mesa) indicate that the prevailing wind is from the southwest • Residents typically would be indoors during nighttime hours (Stability Class F conditions) The alternative release scenarios indicate that the toxic endpoints would not extend to the residential receptors, with the exception of anhydrous ammonia. TowerJazz plant personnel are currently in the process of evaluating relocation of the 2,224 -gallon storage tank. It is recommended that the tank be located at least 200 feet from the nearest residence, which would be a safe separation distance. Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 13 2. Hazard Assessment Although the TowerJazz facility will only be in operation for an additional 3 to 9 years until construction begins on Phase 2, because of the close proximity of residential receptors to the facility, the following actions are recommended: • The anhydrous ammonia tank should be relocated to a distance of 200 feet from the nearest residential receptor • Disclosure should be made to potential occupants of the residential community that hazardous chemicals are used and stored at the adjacent facility • The property manager or authorized representative of the Uptown Newport residential community should be added to the emergency notification list of the TowerJazz Facility's Business Emergency Plan • The property manager or authorized representative of the residential community should be knowledgeable in emergency response and evacuation procedures and coordinate with the TowerJazz Facility to initiate proper actions in the event of an accident at the plant (shelter in place and/or evacuation routes). Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 14 3. References 1. American Institute of Chemical Engineers (AIChE), 2000. Guidelines for Chemical Process Quantitative Risk Analysis, Second Edition. New York, New York. 750 pp. 2. AIChE, 1997. Guidelines for Post -Release Mitigation Technology in the Chemical Process Industry. New York: American Institute of Chemical Engineers Center for Chemical Process Safety (CCPS). Prepared by Arthur D. Little, Inc. 3. Areal Location Hazardous Atmospheres (ALOHA) Computer Program, Version 5.4.3, 2012. Developed by US EPA Office of Emergency Management, Washington DC and National Oceanic and Atmospheric Administration (NOAA), Office of Response and Restoration, Emergency Response Division, Seattle, Washington. 4. Marine Research Scientists, 2007. Anhydrous Ammonia Consequence Modeling Analysis: Evaluation of an Accidental Anhydrous Ammonia Release from the Chevron Richmond Refinery and Consequences in the Point Moate Area. Dated January 2007. 5. TowerJazz Semiconductor, 2012. Business Emergency Plan, TowerJazz Semiconductor, 4321 Jamboree Road, Newport Beach CA. Dated March 2012. 6. United States Environmental Protection Agency (USEPA), 2009. Risk Management Program Guidance for Offsite Consequence Analysis. EPA Report No. 550-8-99-009. March 2009. 7. USEPA, 2009. Supplemental Risk Management Program Guidance for Wastewater Treatment Plants. Appendix F. March 2009. 8. USEPA, 1999. Technical Background Document for Offsite Consequence Analysis for Anhydrous, Aqueous Ammonia, Chlorine, and Sulfur Dioxide. April 1999. C070 Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 • Page 15 Figures Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 Phase 1 Site Layout and Chemical Storage Locations '1/11� I Ammonia Sulfuric Acid Storage (Central Plant) 1.03 AC C 0 gage - Bulk Chemical Storage- �� - I _ ,I 11 . � If�rrrr� rrU �m111�1 IIIIIl1111lIIIIII �IJJI Tower Jazz Semiconductor Facility Gas Storage :rNMO1�� 11 t i -- --7—:---Jamboree=Rd'====___-------- Project Site ------ Phase 1 0 Tower Jazz Boundary Source: Shopoff Management Inc. 2011 0 300 QQ) Scale (Feet) C070 Offsite Consequence Analysis, Jazz Semiconductor Facility The Planning Center I DC&E • Figure 1 Tables co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 TABLE 1 CHEMICAL USAGE AT THE TOWERJAZZ SEMICONDUCTOR FACILITY Chemical Name Storage Quantity (Ibs) Appendix A Reportable Quantity (lb) Exceeds Newport Beach Municipal Code 2704-1-1 Anhydrous ammonia 9,713 100 Yes Boron trichloride 1,540 500 Yes Chlorine 990 10 Yes Hydroflouric acid (49%) 3,588 100 Yes Sulfuric acid 20,000 1,000 Yes TABLE 2 CHEMICAL LOCATIONS AND MAXIMUM CONTAINER AMOUNTS Maximum Maximum Container Container Distance to Nearest Chemical Name Quantity (gallons) Density (lb/gal Quantity Ibs) Storage Location Proposed Residence ft Outside enclosure south of Anhydrous ammonia 1,890 5.15 9,734 cooling towers 5 Several locations on 2nd floor of Boron trichloride -- -- 110 fabrication building 110 Bulk chemical storage building - Chlorine -- -- 110 2nd floor - gas room 190 Bulk chemical storage building - HydrOfluoric acid 49% 1 211 1 9.6 1 2,026 Bay 1 235 Sulfuric acid (93%) 1 2,000 15.3 1 30,600 1 Central plant 100 Appendices Appendix A. CalculationslComputer Runs Off -Site Consequence Analysis TowerJazz Semiconductor Facility The Planning Center August 2012 C70 Appendices Anhydrous Ammonia co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Anhydrous Ammonia - Worst Case Scenario Storage capacity of tank 2,224 gallons Maximum fill volume 85 Maximum volume stored onsite 1,890 gallons Density of anhydrous ammonia @ 60F 5.15 Ib/gal Pounds of ammonia stored onsite 9,736 Ib No passive mitigation considered for worst-case scenario Duration of release 10 min per OCA guidance Release rate 973.6 Ib/min Wind Speed 1.5 m/sec Stability Class F Temperature 77 F Toxic endpoint 200 ppm RMP*Comp - distance to 1.2 miles toxic endpoint of 200 ppm 6,336 feet Distance to nearest residential receptor 5 ft Potential impacts to nearest receptor Yes RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 13, 2012 Chemical: Ammonia (anhydrous) CAS number: 7664-41-7 Threat type: Toxic Gas Scenario type: Worst-case Physical state: Liquefied under pressure Quantity released: 9736 pounds Release duration: 10 min Release rate: 974 pounds per minute Mitigation measures: NONE Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.14 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: 1.2 miles (1.9 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 1.5 meters/second (3.4 miles/hour) Stability class: F Air temperature: 1 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Anhydrous Ammonia - Alternative Release Scenario Scenario assumes discharge from rupture of 1 -inch gas line Flow restricted by excess flow valve Specifications on excess control valve from vendor - Airgas Specialty Products Valve ID - A8013D and A8013DA Vapor flow rate at 90 psig that triggers closure 12,510 ft3/hr 208.5 ft3/min Density of anhydrous ammonia vapor 0.045 Ib/ft3 Maximum flow rate with break in 1 -inch gas line 9.38 Ib/min Active mitigation considered for alternative release scenario QRM = (1 -FR) x QR FR = Fractional reduction resulting from mitigation Control efficiency of water deluge system QRM = mitigated release rate (Ib/min) Duration of release Wind Speed Average nighttime temperature - Newport Beach Relative Humidity (nighttime conditions) Urban or Rural Ht of release - conservatively assume same height as Phase I receptor in multi -story building RMP*Comp - distance to toxic endpoint of 200 ppm ALOHA results - Distance to toxic endpoint of 200 ppm Distance to nearest residential receptor Potential impact to nearest receptor 90 % AIChE, 1997 0.94 Ib/min 1.00 min time to activate automatic shutoff valves and water deluge system 1.5 m/sec 56 F 80% Urban Ground level <0.1 miles <528 feet 192 ft 5 ft Yes RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 30, 2012 Chemical: Ammonia (anhydrous) CAS number: 7664-41-7 Threat type: Toxic Gas Scenario type: Alternative Physical state: Liquefied under pressure Release duration: 1 minutes Release rate: 0.94 pounds per min Mitigation measures: NONE Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.14 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: <0.1 miles (<O.16 kilometers); report as 0.1 mile --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 3 meters/second (6.7 miles/hour) Stability class: D Air temperature: 1 Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.29 (unsheltered double storied) Time: August 30, 2012 1539 hours PDT (using computer's clock) CHEMICAL DATA: Chemical Name: AMMONIA Molecular Weight: 17.03 g/mol AEGL-1 (60 min): 30 ppm AEGL-2 (60 min): 160 ppm AEGL-3 (60 min): 1100 ppm IDLH: 300 ppm LEL: 150000 ppm UEL: 280000 ppm Ambient Boiling Point: -28.2° F Vapor Pressure at Ambient Temperature: greater than 1 atm Ambient Saturation Concentration: 1,000,000 ppm or 100.0% ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 56° F Stability Class: F (user override) No Inversion Height Relative Humidity: 80% SOURCE STRENGTH: Direct Source: 0.94 pounds/min Source Height: 0 Release Duration: 1 minute Release Rate: 0.0157 pounds/sec Total Amount Released: 0.94 pounds Note: This chemical may flash boil and/or result in two phase flow. Use both dispersion modules to investigate its potential behavior. THREAT ZONE: Model Run: Gaussian Red : 64 yards --- (200 ppm) Appendices Boron Trichloride co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Boron Trichloride - Worst Case Scenario Maximum quantity - one cylinder 110 Ib Quantity released 110 Ib Release duration 10 min Release rate 11 Ib/min Inside building mitigation factor 0.55 Q (release rate to outdoors) 6.05 Ib/min Wind Speed 1.5 m/sec Stability Class F Temperature 77 F Toxic endpoint 2 ppm RMP*Comp results to 0.7 mi toxic endpoint of 2 ppm 3,696 ft Distance to nearest residential receptor 110 ft Potential impact to nearest receptor Yes RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 14, 2012 Chemical: Boron trichloride CAS number: 10294-34-5 Threat type: Toxic Gas Scenario type: Worst-case Physical state: Liquefied under pressure Quantity released: 110 pounds Release duration: 10 min Release rate: 6.05 pounds per minute Mitigation measures: Release in enclosed space, in direct contact with outside air Surrounding terrain Urban surroundings (many obstacles in the immediate area) type: Toxic endpoint: 0.01 mg/L; basis: EHS-LOC; LOC is based on IDLH-equivalent level estimated from toxicity data. Estimated distance to toxic endpoint: 0.7 miles (1.1 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 1.5 meters/second (3.4 miles/hour) Stability class: F Air temperature: 1 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Boron Trichloride - Alternative Scenario Scenario assumes discharge from rupture of process gas line (1/4 -inch) Heat capacity ratio of gas (y): 3.16692E-05 m**2 1.147 3.66 kg/m**3 Hole size based on process piping diameter 0.575 6.35 mm 0.25 inch Tank pressure (Pl): 0.9900 131662 Pa 4.4 psig 1.32 bar abs Ambient pressure( P2): 1.5 m/sec 101325 Pa 1.01 bar abs Temperature: 3.17E-05 m**2 294 K 21 C - tank temperature - specs Gas molecular weight: 7.803 67.806 1.744 Excess Head Loss Factors: 1.872 m = discharge rate (kg/sec) 0.010 kg/sec Entrance: 0.5 Release duration 1.00 min active mitigation - activation Exit: 1 Potential impact to nearest receptor No Others: 0 TOTAL: 1.5 Calculated Results Hole area: 3.16692E-05 m**2 Upstream gas density: 3.66 kg/m**3 Pressure ratio 0.575 Pchoked 0.759 Since P2 is greater than Pchoked, flow through hole is subsonic 0.9900 Equation for discharge under non -choked conditions: 0.0133 Ib/min m= Cdx Ah x sgrt(2 x Pl x P x (y/y-1)((P2/p2)2/y_ (p2/pl)y+i/y)) 1.5 m/sec Cd = discharge coefficient 0.8 USEPA OCA guidance Ah = hole area 3.17E-05 m**2 p = gas density 3.66 kg/m**3 y/y-1 7.803 2/y 1.744 (Y+1)/y 1.872 m = discharge rate (kg/sec) 0.010 kg/sec QR = release rate 1.329 Ib/min Release duration 1.00 min active mitigation - activation of automatic shutoff valves Boron trichloride cylinders are stored in 2 -cylinder gas cabinets Gas cabinets require exhaust ventilation as per 2010 CA Fire Code (Section 3704.1.2) Requires 200 linear feet/min of air at face of gas cabinet Vendor minimum ventilation flow rate 250 cfm Dilution factor with exhaust air FR = 1- exp(-WT/V) W = air flow rate 250 cfm T = time (minutes) 1 min V = volume of gas cabinet (25" x 23" x 87") 28.95 ft3 FR 0.9998 Assume 99% reduction to be conservative 0.9900 Release rate with mitigation = (1 -FR) x QR 0.0133 Ib/min Wind Speed 1.5 m/sec Average nighttime temperature - Newport Beach 56 F Relative Humidity (nighttime conditions) 80 Urban or Rural Urban Ht of release - conservatively assume same height Ground level as Phase I receptor in multi -story building Toxic endpoint 2 ppm RMP*Comp - distance to 0.1 miles toxic endpoint of 2 ppm 528 feet ALOHA distance to toxic endpoint of 2 ppm 84 ft Distance to nearest residential receptor 110 ft Potential impact to nearest receptor No RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 30, 2012 Chemical: Boron trichloride CAS number: 10294-34-5 Threat type: Toxic Gas Scenario type: Alternative Physical state: Liquefied under pressure Release duration: 1 minutes Release rate: 0.0133 pounds per min Mitigation measures: NONE Surrounding terrain Urban surroundings (many obstacles in the immediate area) type: Toxic endpoint: 0.01 mg/L; basis: EHS-LOC; LOC is based on IDLH-equivalent level estimated from toxicity data. Estimated distance to toxic endpoint: 0.1 miles (0.2 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 3 meters/second (6.7 miles/hour) Stability class: D Air temperature: 1 Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.29 (unsheltered double storied) Time: August 30, 2012 0940 hours PDT (using computer's clock) CHEMICAL DATA: Warning: BORON TRICHLORIDE can react with water and/or water vapor to produce hydrochloric acid and heat. ALOHA cannot accurately predict the air hazard if a reaction occurs. Chemical Name: BORON TRICHLORIDE Molecular Weight: 117.17 g/mol PAC -1: 0.19 ppm PAC -2: 2.1 ppm PAC -3: 2.1 ppm Ambient Boiling Point: 54.5° F Vapor Pressure at Ambient Temperature: greater than 1 atm Ambient Saturation Concentration: 1,000,000 ppm or 100.0% ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 56° F Stability Class: F (user override) No Inversion Height Relative Humidity: 80% SOURCE STRENGTH: Direct Source: 0.0133 pounds/min Release Duration: 1 minute Release Rate: 2.22e-04 pounds/sec Total Amount Released: 0.013 pounds Note: This chemical may flash boil Source Height: 0 and/or result in two phase flow. THREAT ZONE: (GAUSSIAN SELECTED) Model Run: Gaussian Red : 28 yards --- (2.0 ppm) Note: Threat zone was not drawn because effects of near -field patchiness make dispersion predictions less reliable for short distances. Appendices Chlorine co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Chlorine - Worst Case Scenario Maximum quantity - one cylinder 110 Ib Quantity released 110 Ib Release duration 10 min Release rate 11 Ib/min Inside building mitigation factor 0.55 Q (release rate to outdoors) 6.05 Ib/min Wind Speed 1.5 m/sec Temperature 77 F Toxic endpoint 3 ppm RMP*Comp results to 0.2 mi toxic endpoint of 3 ppm 11056 ft Distance to nearest residential receptor 190 ft Potential impact to nearest receptor Yes RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 14, 2012 Chemical: Chlorine CAS number: 7782-50-5 Threat type: Toxic Gas Scenario type: Worst-case Physical state: Liquefied under pressure Quantity released: 110 pounds Release duration: 10 min Release rate: 6.05 pounds per minute Mitigation measures: Release in enclosed space, in direct contact with outside air Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.0087 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: 0.2 miles (0.3 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 1.5 meters/second (3.4 miles/hour) Stability class: F Air temperature: 1 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Chlorine - Alternative Scenario Scenario assumes discharge from rupture of process gas line (1/3 -inch) Chlorine cylinders equipped with 0.03 -inch restricted flow orifices (RFOs) to limit release Heat capacity ratio of gas: 1.34 Hole size based on RFO limiting flow 0.762 mm Upstream pressure: 6.89 bar abs Dowstream pressure: 1.01 barabs Temperature: 298 K Gas molecular weight: 70.91 Excess Head Loss Factors: 0.0009 kg/s Entrance: 0.5 Exit: 1 Others: 0 TOTAL: 1.5 Calculated Results: 0.03 inch 85.3 psig Hole area: 4.56E-07 m**2 Upstream gas density: 19.72 kg/m**3 Expansion factor, Y: 0.614 Heat capacity ratio, k: 1.2 1.4 1.67 Sonic pressure ratios: 0.536 0.575 0.618 Choked pressure: 3.20 2.93 2.63 bar Mass flow: 0.0009 0.0009 0.0009 kg/s Interpolation table: 1.2 0.0008729 56 F Relative Humidity (nighttime conditions) 1.4 0.000904 80 Urban or Rural 0.12 Ib/min Interpolated mass flow: 0.0009 kg/s level as Phase I receptor in multi -story building Chlorine cylinders are stored in 2 -cylinder gas cabinets RMP*Comp - distance to Gas cabinets require exhaust ventilation as per 2010 CA Fire Code (Section 3704.1.2) Requires 200 linear feet/min of air at face of gas cabinet <528 feet Vendor minimum ventilation flow rate 250 cfm Dilution factor with exhaust air FR = 1- exp(-WT/V) 190 ft W = air flow rate 250 cfm T = time (minutes) 1 min V = volume of gas cabinet (25" x 23" x 87") 28.95 ft3 FR 0.9998 Assume 99% reduction to be conservative 0.9900 Release rate with mitigation = (1 -FR) x QR 0.0012 Ib/min Release duration 1.0 min active mitigation - activation of automatic shutoff valves Wind Speed 1.5 m/sec Average nighttime temperature - Newport Beach 56 F Relative Humidity (nighttime conditions) 80 Urban or Rural Urban Ht of release - conservatively assume same height Ground level as Phase I receptor in multi -story building RMP*Comp - distance to <0.1 miles toxic endpoint of 3 ppm <528 feet ALOHA results - Distance to <33 ft toxic endpoint of 3 ppm Distance to nearest residential receptor 190 ft Potential impact to nearest receptor No RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 30, 2012 Chemical: Chlorine CAS number: 7782-50-5 Threat type: Toxic Gas Scenario type: Alternative Physical state: Liquefied under pressure Release duration: 1 minutes Release rate: 0.0012 pounds per min Mitigation measures: NONE Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.0087 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: <0.1 miles (<O.16 kilometers); report as 0.1 mile --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 3 meters/second (6.7 miles/hour) Stability class: D Air temperature: 1 Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.29 (unsheltered double storied) Time: August 30, 2012 0940 hours PDT (using computer's clock) CHEMICAL DATA: Chemical Name: CHLORINE Molecular Weight: 70.91 g/mol AEGL-1 (60 min): 0.5 ppm AEGL-2 (60 min): 2 ppm AEGL-3 (60 min): 20 ppm IDLH: 10 ppm Ambient Boiling Point: -29.3° F Vapor Pressure at Ambient Temperature: greater than 1 atm Ambient Saturation Concentration: 1,000,000 ppm or 100.0% ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 56° F Stability Class: F (user override) No Inversion Height Relative Humidity: 80% SOURCE STRENGTH: Direct Source: 0.0012 pounds/min Source Height: 0 Release Duration: 1 minute Release Rate: 2e-05 pounds/sec Total Amount Released: 0.0012 pounds Note: This chemical may flash boil and/or result in two phase flow. THREAT ZONE: (GAUSSIAN SELECTED) Model Run: Gaussian Red : less than 10 meters(10.9 yards) --- (3 ppm = ERPG-2) Note: Threat zone was not drawn because effects of near -field patchiness make dispersion predictions less reliable for short distances. Appendices Hydrofluoric Acid co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Hydrofluoric acid (49%) - Worst Case Scenario Maximum quantity 211 gallons Density of 49% HF acid 9.6 Ib/gal Release amount 2025.6 Ib Conservatively assume all HF acid in bulk storage tank spills into bay Passive mitigation (release inside building) assumed Release amount 2025.6 Ib Release duration 10 min Calculated release rate (RMP*Comp) 55.7 Ib/min Wind Speed 1.5 m/sec Temp (highest max last 3 yrs) 87 F Toxic endpoint 20 ppm RMP*Comp - distance to 1.2 miles toxic endpoint of 20 ppm 61336 feet Distance to nearest residential receptor 235 ft Potential impacts to nearest receptor Yes Chemical: Initial concentration CAS number: Threat type: Scenario type: Liquid temperature: Quantity released: Release duration: Release rate: RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 15, 2012 Hydrofluoric acid 50% 7664-39-3 Toxic Liquid Worst-case 87 F 2026 pounds 10 min 55.7 pounds per minute Mitigation measures: Release in enclosed space, in direct contact with outside air Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.016 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: 1.2 miles (1.9 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 1.5 meters/second (3.4 miles/hour) Stability class: F Air temperature: 1 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Hydrofluoric acid (49%) - Alternative Release Scenario Maximum quantity Storage Bay #1 dimensions Length Width Area Conservatively assume all HF acid is in bulk storage tank and spills into bay Wind Speed Average nighttime temperature - Newport Beach Relative Humidity (nighttime conditions) Urban or Rural Ht of release Toxic endpoint 211 gallons 32 ft 28 ft 896 ft 1.5 m/sec 56 F 80 Urban Ground level 20 ppm For liquid release inside building per USEPA OCA guidance Q = U0 78 x LFA X A = release rate U = wind speed (m/sec) 0.1 per USEPA guidance for inside a building LFA = liquid factor ambient 0.0014 A = area of room 896 ft Q (evaporation rate) 0.21 Ib/min Inside bldg release factor 0.1 Q (release rate to outdoors) 0.02 Ib/min Release duration (as per OCAG Guidance) 10.0 min Total Ib. released 0.2 Ib RMP*Comp - distance to 0.1 miles toxic endpoint of 20 ppm 528 feet ALOHA results - Distance to 81 ft toxic endpoint of 20 ppm Distance to nearest residential receptor 235 ft Potential impact to nearest receptor No Chemical: Initial concentration CAS number: Threat type: Scenario type: Liquid temperature: Quantity released: Release duration: Release rate: RMP*Comp: Results of Consequence Analysis Scenario Summary Aug 15, 2012 Hydrofluoric acid 50% 7664-39-3 Toxic Liquid Alternative 87 F 2.1 pounds 10 min 0.0578 pounds per minute Mitigation measures: Release in enclosed space, in direct contact with outside air Surrounding terrain type: Urban surroundings (many obstacles in the immediate area) Toxic endpoint: 0.016 mg/L; basis: ERPG-2 Estimated distance to toxic endpoint: 0.1 miles (0.2 kilometers) --------------ASSUMPTIONS ABOUT THIS SCENARIO -------------- Wind speed: 3 meters/second (6.7 miles/hour) Stability class: D Air temperature: 1 Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.29 (unsheltered double storied) Time: August 30, 2012 1027 hours PDT (using computer's clock) CHEMICAL DATA: Warning: HYDROGEN FLUORIDE can react with water and/or water vapor. This can affect the evaporation rate and downwind dispersion. ALOHA cannot accurately predict the air hazard if this substance comes in contact with water. Chemical Name: HYDROGEN FLUORIDE Molecular Weight: 20.01 g/mol AEGL-1 (60 min): 1 ppm AEGL-2 (60 min): 24 ppm AEGL-3 (60 min): 44 ppm IDLH: 30 ppm Ambient Boiling Point: 67.1° F Vapor Pressure at Ambient Temperature: 0.80 atm Ambient Saturation Concentration: 796,357 ppm or 79.6% ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 56° F Stability Class: F (user override) No Inversion Height Relative Humidity: 80% SOURCE STRENGTH: Direct Source: 0.02 pounds/min Source Height: 0 Release Duration: 10 minutes Release Rate: 0.02 pounds/min Total Amount Released: 0.20 pounds THREAT ZONE: (GAUSSIAN SELECTED) Model Run: Gaussian Red : 27 yards --- (20 ppm = ERPG-2) Note: Threat zone was not drawn because effects of near -field patchiness make dispersion predictions less reliable for short distances. Appendices Sulfuric Acid co Off -Site Consequence Analysis The Planning Center TowerJazz Semiconductor Facility August 2012 OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Sulfuric acid (93%) - Worst Case Scenario Maximum quantity released Density Maximum quantity released Conservatively assume all sulfuric acid in the container spills onto the concrete floor with no containment 2,000 gallons 15.3 Ib/gal for 96% H2SO4 30600 lb Wind Speed 1.5 m/sec Temp (highest max last 3 yrs) 87 F Humidity 50 Urban or Rural Urban Ht of release Ground level Toxic endpoint 10 mg/m3 ALOHA input parameters - puddle Amount of liquid spilled 2000 gallons Amount of liquid spilled 267.4 ft Depth of puddle 1 cm Depth of puddle 0.03 ft Area of puddle 8149.33 ft Diameter of puddle 90.27 ft ALOHA results - Distance to 252 ft toxic endpoint of 10 mg/m3 Distance to nearest residential receptor 100 ft Potential impacts to nearest receptor Yes Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.33 (unsheltered double storied) Time: August 15, 2012 1742 hours PDT (using computer's clock) CHEMICAL DATA: Warning: OLEUM can react with water and/or water vapor. This can affect the evaporation rate and downwind dispersion. ALOHA cannot accurately predict the air hazard if this substance comes in contact with water. Chemical Name: OLEUM Solution Strength: 4% (by weight) Ambient Boiling Point: 426.2° F Partial Pressure at Ambient Temperature: 4.80e-004 atm Ambient Saturation Concentration: 480 ppm or 0.048% Hazardous Component: SULFUR TRIOXIDE Molecular Weight: 80.06 g/mol AEGL-1 (60 min): 0.2 mg/(cu m) AEGL-2 (60 min): 8.7 mg/(cu m) AEGL-3 (60 min): 160 mg/ (cu m) ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 87° F Stability Class: F (user override) No Inversion Height Relative Humidity: 50% SOURCE STRENGTH: Evaporating Puddle Puddle Area: 8149 square feet Average Puddle Depth: 1 centimeters Ground Type: Concrete Ground Temperature: 87° F Initial Puddle Temperature: Ground temperature Release Duration: ALOHA limited the duration to 1 hour Max Average Sustained Release Rate: 0.515 pounds/min (averaged over a minute or more) Total Amount Hazardous Component Released: 30.8 pounds THREAT ZONE: Model Run: Gaussian Red : 84 yards --- (10 mg/(cu m) = ERPG-2) OFF-SITE CONSEQUENCE ANALYSIS CALCULATIONS Sulfuric acid (93%) - Alternative Release Scenario Assume release of 10% of the tank volume due to tank leak or break in the process piping Maximum quantity released Density Maximum quantity released Conservatively assume all sulfuric acid in the container spills onto the concrete floor with no containment Wind Speed Average nighttime temperature - Newport Beach Relative Humidity (nighttime conditions) Urban or Rural Ht of release Toxic endpoint ALOHA input parameters - puddle Amount of liquid spilled Amount of liquid spilled Depth of puddle Depth of puddle Area of puddle Diameter of puddle ALOHA results - Distance to toxic endpoint of 10 mg/m3 Distance to nearest residential receptor Potential impacts to nearest receptor 200 gallons 15.3 Ib/gal for 96% H2SO4 3060 Ib 1.5 m/sec 56 F 80 Urban Ground level 10 mg/m3 200 gallons 26.7 ft 1 cm 0.03 ft 814.93 ft 28.55 ft 57 ft 100 ft No Text Summary ALOHAp 5.4.3 4 SITE DATA: Location: NEWPORT BEACH, CALIFORNIA Building Air Exchanges Per Hour: 0.29 (unsheltered double storied) Time: August 30, 2012 1027 hours PDT (using computer's clock) CHEMICAL DATA: Warning: OLEUM can react with water and/or water vapor. This can affect the evaporation rate and downwind dispersion. ALOHA cannot accurately predict the air hazard if this substance comes in contact with water. Chemical Name: OLEUM Solution Strength: 4% (by weight) Ambient Boiling Point: 426.2° F Partial Pressure at Ambient Temperature: 1.98e-004 atm Ambient Saturation Concentration: 198 ppm or 0.020% Hazardous Component: SULFUR TRIOXIDE Molecular Weight: 80.06 g/mol AEGL-1 (60 min): 0.2 mg/(cu m) AEGL-2 (60 min): 8.7 mg/(cu m) AEGL-3 (60 min): 160 mg/ (cu m) ATMOSPHERIC DATA: (MANUAL INPUT OF DATA) Wind: 1.5 meters/second from N at 3 meters Ground Roughness: urban or forest Cloud Cover: 5 tenths Air Temperature: 56° F Stability Class: F (user override) No Inversion Height Relative Humidity: 80% SOURCE STRENGTH: Evaporating Puddle Puddle Area: 815 square feet Average Puddle Depth: 1 centimeters Ground Type: Concrete Ground Temperature: 56° F Initial Puddle Temperature: Ground temperature Release Duration: ALOHA limited the duration to 1 hour Max Average Sustained Release Rate: 0.03 pounds/min (averaged over a minute or more) Total Amount Hazardous Component Released: 1.66 pounds THREAT ZONE: (GAUSSIAN SELECTED) Model Run: Gaussian Red : 19 yards --- (10 mg/(cu m) = ERPG-2) Note: Threat zone was not drawn because effects of near -field patchiness make dispersion predictions less reliable for short distances. WIND ROSE PLOT: Costa Mesa Wind Rose DISPLAY: Stability Class NORTH- 20% ORTH20% \ / 12% A \ 8% WEST EAST STABILITY CLASS \ / - G \ — F - E SOUTH / n C DB A Calms: 15.48% COMMENTS: DATA PERIOD: COMPANY NAME: Start Date: 1/1/1981 - 00:00 End Date: 12/31/1981 - 23:00 MODELER: CALM WINDS: TOTAL COUNT: 15.48% 8760 hrs. AVG. WIND SPEED: DATE: PROJECT NO.: 1.54 m/s 8/23/2012 WRPLOT View - Lakes Environmental Software Relative Humidity - Newport Beach CA Maximum RH occurs just before sunrise Use 80% for nighttime analyses Avg. nighttime lows of 56 F Morning Afternoon Jan 79 56 Feb 81 57 Mar 82 57 Apr 79 55 May 77 58 Jun 79 59 Jul 81 57 Aug 81 57 Sep 81 56 Oct 80 57 Nov 79 59 Dec 78 56 Avg 79.75 57 Maximum RH occurs just before sunrise Use 80% for nighttime analyses Avg. nighttime lows of 56 F Mr. Geoff Willis Residences at 4400 Von Karman January 8, 2021 Paae 18 of 18 Attachment B EKI Letter ekienvironment & water 2355 Main Street, Suite 210 Irvine, CA 92614 (949)293-0999 ekiconsult.com 11 January 2021 Privileged and Confidential Attorney Work Product Mr. Geoffrey Willis, ESQ. The Law Offices of Geoffrey Willis 9891 Irvine Center Drive, Suite 200 Irvine, CA 92618 Subject: Review of Potential Soil and Groundwater Environmental Issues Related to Construction of the "Residences at 4400 Von Karman", Irvine, California (EKI C10014.00) Dear Mr. Willis: EKI Environment & Water, Inc. ("EKI") is pleased to submit this letter presenting some of the potential soil and groundwater environmental issues that may impact the construction of the "Residences at 4400 Von Karman" ("Proposed Development") located at 4400 Von Karman Avenue, Irvine, CA which are part of the Koll Center. EKI has been engaged by Mr. Geoff Willis to review publicly available information regarding the development and construction plan and known soil and groundwater contamination that is pertinent to the Proposed Development. Based upon review of Regional Water Quality Control Board ("RWQCB") files from the Geotracker website for the former Conexant site (also known as Jazz Semiconductor, located at 4311 Jamboree Road, Newport Beach, CA adjacent to the south of the Proposed Development), EKI has determined that historical contamination by volatile organic compounds ("VOCs") has migrated into the shallow and intermediate ground water zones which migrated to the north and west of the former Conexant site towards the Proposed Development. There have been numerous investigations on and off the former Conexant site. Figure 1 attached was prepared in 2007 and shows investigation activities on the top part of the timeline and remediation activities on the bottom part of the timeline. This figure is provided to indicate the significant soil and groundwater activities performed up until that time at and near the former Conexant site as well as the span of time for this work. Additional work continued on the site after 2007 and continues on and off the site to this day. Possible sources of contamination include a number of Underground Storage Tanks ("USTs") at the former Conexant facility as well as subsurface product lines to the manufacturing operations. Releases of contaminants into soils and the shallow groundwater zones occurred on the facility in and around and beneath the LISTS. Figure 3 attached highlights permeable shallow Burlingame, CA • Davis, CA • Marin, CA • Oakland, CA . Roseville, CA • Centennial, CO • Saratoga Springs, NY Mr. Geoff Willis environment Residences at 4400 Van Karman, Irvine, CA eki & water 11 January 2021 Page 2 of 3 sand units that are near surface and in the areas where the USTs were located at the of the former Conexant facility. Groundwater and contaminant migration through these more permeable units has migrated in the direction of the Parking garage and apartment buildings planned for the Proposed Development in the past. The elevated contamination levels penetrated the fine-grained aquitard between the two upper groundwater zones. Figure 4 attached was prepared in 2009 and shows Trichloroethylene ("TCE") levels from March of 1990, before remediation efforts were started on and off-site. Figure 5 attached shows the relative depth of the USTs and the shallow more permeable units near the Proposed Development property boundary. This illustrates that releases from the tanks likely migrated directly into the shallow groundwater aquifers. Figure 6 attached provides a map illustrating the recent (2017) shallow zone groundwater Total VOC data prepared by JHA Environmental, Inc. (JHA, 2018). These data indicate that there are VOCs in shallow groundwater adjacent to the Proposed Development. Figure 7 attached provides a map of recent (2019) shallow groundwater data for Total VOCs prepared by Geosyntec (Geosyntec, 2020). These data show that VOCs are present in groundwater beneath the Proposed Development. Overall, our review of the available information suggests that offsite migration of contaminants that were released from the USTs and the associated underground piping at the former Conexant manufacturing buildings occurred in the direction of the Proposed Development and continue to impact groundwater to the present time. The migration of VOCs, including TCE, from the former Conexant site to the proposed development poses two significant issue: 1) Since earthwork and footings will be required to build the first parking structure planned in this development, and its location is near the contaminant source area on the Jazz Semiconductor property, there is a potential that the RWQCB will require the preparation of a Soil Management Plan describing specific precautions, testing, and actions that would need to be undertaken if VOC soil or groundwater impacts are encountered during this construction. The apartments that are part of this construction plan will have subterranean parking and plan to excavate 20 feet below ground surface. Though this area is further away from the contaminant source, there is a potential that groundwater and soils in that area may also be impacted. There is also a potential that any dewatering activities that might be associated with the work would draw contaminated groundwater into the area. 2) The potential presence of VOCs in shallow groundwater beneath the Proposed Development creates a potential risk of indoor air contamination impacts to residents. Mr. Geoff Willis environment Residences at 4400 Van Karman, Irvine, CA eki & water 11 January 2021 Page 3 of 3 This risk should be evaluated and potential vapor control measures may be appropriate on buildings and facilities. Though levels of soil, soil vapor, and groundwater impacts at the specific structures to be built cannot be estimated at this time, it is likely that migration from the former Conexant site activities have impacted these subsurface areas, which will require regulatory oversight and potential remediation and mitigation. If you have any questions, please call either of the undersigned at 650-292-9100. Very truly yours, EKI ENVIRONMENT & WATER, INC. Earl James, P.G. Vice President Attachments: Steve Figgins Principal Figure 1— Timeline of Activities Figure 2- Cross Section Locations Figure 3- Cross Section A -A' Figure 4-TCE in Shalloe groundwater concentrations Figure 5 -Cross section A -A' Figure 6—Total VOCs in Shallow Zone Groundwater — Aug 2017 Figure 7—Total VOCs in Intermediate Groundwater — July 2019 References Geosyntec, 2020 Workplan for Supplemental Groundwater Monitoring Well Installation JHA, 2018 2017 Annual Groundwater and Remediation Progress Report FFFigure 1 Removal of UST No_ 1 (waste solvent} Removal of UST No_ 2 (waste solvent) From: 1 INVESTIGATION ACTIVITIES Groundwater Assessment Begins Release discovered Near Building 503 Soil Vapor Extraction (SVE) Begins in Former Solvent USTArea Removal of UST No_ 3 (waste solvent) Removal of UST No. 4 (fuel) Removal of USTs No. 7 thru 10 (diesel) Lower Zone Assessment Begins & Completed Shallow Zone Assessment completed Intermediate Zone Assessment Completed Expansion of Shallow and Intermediate Zone Groundwater Extra ction & Treatment System Groundwater Extraction and Treatment System SVE completed in Farmer Solvent U ST Area Estimated 31,800 Pounds ofcontaminants Removed Zone Groundwater Extraction & Treatment Begins REMEDIATION ACTIVITIES Assessment Shallow Groundwater Extraction & Treatment Ends Bioremediation Pilot Study (Ethanol Injection) Intermediate Zone Groundwater Extraction & Treatment Ends. 5,000 Pounds of VOCs removed from Shallow and Intermediate Zones in Total. (waste solvent) from its concrete vault SVE 8 Dual Phase Extraction (DPE) Pilot Testing of Unsaturated Zone and Shallow Zone at Primary Zone of Residual Impact 1 Comprehensive Groundwater Summary Report; Conexant Systems, Inc.; 4311 Jamboree Road, Newport Beach, CA Jacob & Hefner Associates, P.C.; January 2008, P 25, Figure 5 L/ r� IS 1-1 ❑ R I-0 �H1 01-1 o L-1 M-29 B 30 ��yo / 01-9 M-43 L IT 1-90 T-5 ES -1 Lam❑ c s M-2� /> ❑ I-7 saw IT EI -1 Lr_■ ES -2 z p4r�0 a I-- s I•:I-c2 M-34 ER SI OF M-36 ES -3A M-2 T-6 IN 2 K49 .KQ1 � y KSKO-2 E1 BUILDING BMS 503 1 I-3 1 e M� ESB � -0A EI' ❑ ■ EES 47 a M-23 I� ES -5A ■ ES -6 ~5 M-27-0 M 24 6111LOIN' 5n1 SM -48 I� 01-1 c Approximate y Location of s> parking F structure to be built .r 9 KIB®-1 M�2 a r 1�m $-11 ISA 1�BM-38 a�sE o D MW wv.Er s u.oFCK tom MNu cPOUow.TER �c aru w wlr . d E M7 01� O E% P L A N A T 1 N S SHALLOW ZONE MON TOR WELL 0 SHALLOW 7AHE EXTRACTION WELL ¢'IOT IN OPERATION} p INTERMEDIATE ZONE MON -TOR WELL ■ INTERMEDIATE 7ANE EXTRACTION WELL (NOT IN OPERATION} Y INTERMEDIATE ZONE RECHARGE WELL o LOWER ZONE MON TOR WELL / DESTROYED WELL ® OPE TEST WELL / OBSER�'RTIOH WELL I ■ M-25 P� I-12 0 LY GRAPHIC SCALE 1"=200 D 100 200 40 J CRO&SSECTIOH LOCATION 0 2 Comprehensive Groundwater Summary Report; Conexant Systems, Inc.; 4311 Jamboree Road, Newport Beach, CA; Jacob &Hefner Associates, P.C.; January 2008, P 26, Figure 6A A Figure 3A' i i i iii a iii i u i i MR IFrFNn: ❑COARSE CTWNW SOiL — (SAND WITH VARIINC AMOUNTS OR cur, SILT, AND GRAVEL) FINE AWNED SOIL — (SILT AN CLAY WITH VARYING AMOUNTS OF SND) Neste HORIZONTAL SCALE 050 IDD VERTICAL SCALE = 5X HORIZONTAL SCALE g — SCREENED INIE— Cl WELL — WATER LEVEL IN WELL MEAWRE➢. MARCH 7007 3 Comprehensive Groundwater Summary Report; Conexant Systems, Inc.; 4311 Jamboree Road, Newport Beach, CA Jacob & Hefner Associates, P.C.; January 2008, P 27, Figure 6B C Figure 4 <' � I NIA2 0 ND I C I — 2,) 0 x 190 s M45 c .X2 .10-37 No 6ND \ / I fpV e �a.4`-020 6 � b1 -D3 0 s NI-25 NO Mtii0n -2o \ 1 21 82 R1B 2920q M-31 N15 N15 KU3 f' I � xD 62 ht33 16900! B J / f 0 (/ p M-23 / r w ES6 ND M27 � � c E k V L A N A T 1 0 N SHALLAw 2IXE MONITOR WEll sNauew zone e%TRACT1cfi N1ELL 300 TRIGViCRCEnMENE(I{yt) CONCENTRAMN IN SRALLOW ZONE GROUNDWATER 100— CCNTONR OF TRICHLOROETHYLENE CcncENTRAnON Rgt) ee.o�.cr�rcam TRIGHLGRO MLENE(4g )IN SHALLOW ZONE GROUNDWATER (MWCH 199D) Figure 11: TICE in Shallow Zone Groundwater — March 1990 (Before start of full scale groundwater extraction.) 4Comprehensive Groundwater Summary Report; Conexant Systems, Inc.; 4311 Jamboree Road, Newport Beach, CA; Jacob & Hefner Associates, P.C.; January 2008, P 37, Figure 11 YYAI Figure 5 L A AWNING NITROGEN PLANT DEPTH -YhMii j g_1 g $ Tj �y] �5" FJ�' x.13 1a `SD E5 'iso (G52 �. DEPTH [ice[j o a � BORING IDENTFER 0 FRT CLAY APPROXIMATE E7CCAVATION ® N reTara �+�. wEwraareEhcH,cuiFau CON SLAB SEALED INTERVAL NOTE: SEE FIGURE fi FOR CROSS SECTION LOCATIONS. _ 0 SILT W VERY DENSE SILTY RNESAND PAaq CH SOIL TYPE ® SILTY SAND k CROSS SECTI ON A -N Q' APPROXIMATE WATER LEVEL [2D37] k I SCREENED INTERVAL ® SAND, WELL SORTED S APPROXIMATE FORMER UST © SAND, POORLY SORTED iacu=. X .. — LOCATION 5 JULY ]ID] - Q4 OCR CL CL - 5 10 CH GL Note shallow depth of POSSE USTs near more SAW DRAIN LOCATION 15 _ 0., permeable sand units CI a 15 located near Koll property IGH boundary g MONITORING WELL (NOT SHOWN ON PLAN VIEW MAPS) SOIL BORING WITH � BORING IDENTFER 0 FRT CLAY APPROXIMATE E7CCAVATION ® N reTara �+�. wEwraareEhcH,cuiFau 0 LEAN CLAY SEALED INTERVAL NOTE: SEE FIGURE fi FOR CROSS SECTION LOCATIONS. _ 0 SILT W UTHOLOGIC CH SOIL TYPE ® SILTY SAND CROSS SECTI ON A -N Q' APPROXIMATE WATER LEVEL [2D37] I SCREENED INTERVAL ® SAND, WELL SORTED S APPROXIMATE FORMER UST © SAND, POORLY SORTED iacu=. �a aHdAN .. — LOCATION HOR6OHi�LSGYE M FEET JULY ]ID] 5 Comprehensive Soil Investigation Report; Conexant Systems, Inc.; Newport Beach, CA; Haley & Aldrich, Inc.; July 2007, P 90, Figure 7 FIGURE 7 2 El M 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2; 2( e/"2',' rumtY.w )FFICE OF THE CITY ATTORNEY ,ITY OF NEWPORT BEACH :OBIN L. CLAUSON, 123326 AARON C. HARP, 190665 300 Newport Blvd. lewport Beach, California 92658-8915 Celephone: (949) 644-3131 Facsimile: (949) 723-3519 mail: rclauson@city.newport-beach.caus sharp@city.newport-beach.ca.us Attomeys for Petitioner/Plaintiff CITY OF NEWPORT BEACH (ATTORNEYS CONTINUED ON NEXT PAGE) Exempt from Filing Fees Pursuant to Government Code Section 6103 SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER CITY OF NEWPORT BEACH and CITY OF TUSTIN, Petitioners and Plaintiffs, hm CITY OF IRVINE, CITY COUNCIL OF THE CITY OF IRVINE, DOES I -X, Respondents and Defendants, STARPOINTE VENTURES, ALTON ASSOCIATES, and DOES XI -L, inclusive, Real Parties in Interest. ALLERGAN, INC., a Delaware corporation, Plaintiff and Petitioner, a CITY OF IRVINE, a municipal corporation; CITY COUNCIL OF THE CITY OF IRVINE; and DOES 1 through 100, inclusive, Defendants and Respondents, OPENING CASE NO. 07CCO1265 Coordinated with: CASE NO. 07CCOl267 PETITIONERS' OPENING BRIEF IN SUPPORT OF PETTTION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ASSIGNED FOR ALL PURPOSES: Hon. Stephen J.. Sundvold Department: CX105 Hearing Date: Jan. 23, 2008 Time: 10:00 a.m. Filing Date of Action: April 26, 2007 I FOR WRIT OF 1 2 3 4 5 STARPOINTE VENTURES, ALTON ) ASSOCIATES, and DOES XI -L, inclusive, } ) Real Parties in Interest. } ) [Re: 2851 Alton Project] 6 WOODRUFF SPRADLIN & SMART, P.C. DOUGLAS C. HOLLAND, 069014 7 701 S. Parker Street, Suite 8000 8 Orange, California 92868-4760 Telephone: (714) 558-7000 9 Facsimile: (714) 835-7787 E-mail: dholland@wws-law.com 10 Attorneys for Petitioner/Plaintiff 11 CITY OF TUSTIN 12 REMY, THOMAS, MOOSE and MANLEY, LLP 13 WHITMAN F. MANLEY, 130972 SABRINA V. TELLER, 215759 14 JASON W. HOLDER, 232402 455 Capitol Mall, Suite 210 15 Sacramento, California 95814 16 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 17 E-mail: wmanley@rtmmlaw.com steller@rftnmlaw.com 18 jholder@rtrnmlaw.com 19 Attorneys for Petitioners/Plaintiffs 20 CITY OF NEWPORT BEACH and CITY OF TUSTIN 21 22 23 24 25 26 27 28 .w ass awwasa:w sem,. u,ssi. OPENING BRIEF INSUPPORT OFPEMON FOR WRI MANDATEAND 1 2 3 T 4 '1 5 1 6 1 7 1 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 2' 2� 2'. 21 2 2 TABLE OF CONTENTS Page(s) ableof Contents ........ ................................................ * ... *"*"* ......... *** ....... ableof Authorities .......................................................... ***,* ............ ** .... ableof Exhibits. - . ......................................................... ** ........ ** .... ** ........ *** ....... .......................... vii INTRODUCTION........................................................ ....... ....... LSTATEMENT OF FACTS ................................................................................................. A. Transformation of the IBC Area: from Primarily Industrial Use to 1 Intensified Residential Use ..................................................... I ................................ B. The Project .............................................. C. Environmental Review for the Project ......................................................... 7 1. Traffic Impact Analysis .................................................... *'*'*** ...... * ......... 7 2. Parks and Recreation Impact Analysis ....................................................... 8 D. Project Approval .................................................... ** ... * .... *** ........... *'***'**'* ....... ­ ... 10 Ill. STANDARD AND SCOPE OF REVIEW ................................................... 10, IV. ARGUMENT............................................................ —* ....... *** ..... **- A. Irvine Violated CEQA by Tiering from the IBC PEIR and by Improperly Incorporating by Reference the IBC PEIR .................................................. — ..... * 12 1. The IBC pEIR is stale and cannot be relied upon in the analysis Of the Project's potentially significant environmental effects ....................... 14 2. The SEIR improperly incorporated by reference the IBC PEIR ............... 15 IR ignores unavoidable significant impacts identified in the 3 The SF ..... 16 IBCPEIR ............................................................. B. Irvine Violated CFQA by Failing to Adequately Disclose the Project's Cumulative Impacts ................................................................ ... 18 1. Irvine's assumptions regarding cumulative impacts failed to consider all past, present and probable future projects ... I ...... I .................. 19 2. Irvine relied on a "significance threshold" for traffic designed to obscure the Project's contribution to congested roadways ....................... 21 OPENING SUPPORT OF PETITION FOR 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17' 18 19 20 21 22 23, 24 25 26 271 281 455 SSS GpW Wg5mre210 WaaY.GnEIS IV C. The SEIR does not Adequately Analyze Traffic Impacts and Irvine Erred by Failing to Adopt Necessary Traffic Mitigation Measures .............................. "^ 1. Irvine's explanation and application of the TDR program is impenetrable and flawed........................................................................... 24 2. Irvine did not respond in good faith to comments pointing out anomalies in the traffic study's findings .................... :.............................. 26 3. The traffic analysis improperly relied on unstated and unsupported assumptions regarding future construction of unidentified roadway improvements............................................................................................ 27 D. The SEIR does not Adequately Analyze or Mitigate the Project's Parks Impacts........................................................... ................................. 31 1. SEIRs parks impacts analysis is inadequate ............................................. 31 a. Cumulative impact analysis is perfunctory and inaccurate........... 31 b. Impact analysis fails to consider extra jurisdictional impacts.......................................................................................... 31 2. The mitigation measures for parks impacts are inadequate ...................... 32 a. Irvine does not require mitigation for extra jurisdictional impacts to parks and recreation..................................................... 32 ......................... b. The claimed mitigation measures for the Project's impacts to parks are not enforceable ................................................ 33 :......... C. Irvine's conclusion that the Project will not have significant parks and recreation impacts is based upon improperly deferredmitigation........................................................................ 33 CONCLUSION................................................................... tt OPE NO✓G BRIEFINSUPPORT OF 1 111ON FOR I OI ANDAM AND COMPL &T 1 2 3 4 5' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2C 21 1 2' 21 2: 21 2 2 tliOPbl W15u6e114 S�.C�9H11 TABLE OF AUTHORITIES California Cases Page(s) U Larson Boat Shop, Inc. v. Board of Harbor Commissioners 1 o91l 1 R Cal_Ann.4th 729................................................................................................I.......... 11 4nderson First Coalition v. City of Anderson 2005) 130 Cal. App. 4th 1173.................................................................................... 29,30 33,34 Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184................................................................................................. 19 Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065........................................................................................................ 14 California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219..................................................................................... 23 Citizens to Preserve the Ojai v. County of Ventura 18,21 (1985) 176 Ca1.App.3d 421................................................................... City of Marina v. Bd: of Trustees of Cal. State Univ. (2006) 39 Ca1.4th 341 ........................................................ 32 City of Rancho Palos Verdes v. City Council (1976) 59 Cal.App.3d 869.............................................................................. .... 11 Cleary v. County of Stanislaus23 (1981) 118 Cal.App.3d 348 ..................................................... ................................... Communities for a Better Environment v. California Resources Agency16, 17, 19, 20, 22 (2002) 103 Cal.App.4th 98 ......................................................... .. . Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712.....................................................:..................................................... 11 Endangered Habitats League v. County of Orange 28, 29, 30 (2005)131 Cal.AppAth 777.................................................................................... , Environmental Defense Fund, Inc. v. Coastside County Water District 24 (1972) 27 Cal.App.3d 695............................................................................................................ Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350.......................................................................................................... 26 Environmental Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604.......................................................................................................... 31 i Fall River Wild Trout Foundation v. County of Shasta 11 1 (1999) 70 Cal. App. 4th 482......................................................................................................... 31 OPENING iii OFPETITION COMPLAIN! 9 10 11 12 13 14 15 16 17 181 19 20 21 22 23 24 25 26 27 28 California Cases (Cont) Par '-y, Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252............................................................................................. 29, 30, 34 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359...................................................................................... .... 12 ............... Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789.......................................................................................................... 24 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692.................................................................................. 11, 19, 22, 23, 34 Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Ca1.3d 376............................................................................ ..... 11, 12, 22, 23, 24 Lincoln Place Tenants Association v. City of Los Angeles (2005) 130 Cal.App.4th 1491 ..................................................... Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019......................................................... 18 ................................................ Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385................................................................................ Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322 ............................ ............................................................................. Napa Citizens for Honest Gov't v. Napa County Bd of Supervisors (2001) 91 Cal.App.4th 342 .................. .................. Natural Resources Defense Council v. City of Los Angeles (2002) 103 Ca1.AppAth 268 ....................................... .................... Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336........................................................ ........................................ 22,23 Protect the Historic Amador Waterways v Amador Water Agency (2004) 116 Cal.App.4th 1099 ................ ............................................................. Protect Our Water v. County of Merced (2003) 110 Cal.AppAth 362 ................................................... San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61 ................................................. San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal. App. 4th 645 ................ ......................... Sacramento Old City Association v. City Council of Sacramento (1991) 229 Cal. App, 3d 1011 ............................. PENY.IMOMAS. MOOSEai II M.MEY. LIP �Sf fgiW MsIL$yy SIO IV Swmmc.G95BM OPENING BRIEF IN SUPPORTOFPEMTIONFOR COMPLUAT I California Cases (cont.) Page(s) 3 S 4 S 5 6 7 8 i 9 10 11 12 13 14 15 16 17 18 19 2C 2] 2, 2: 2 2 2 rota Clarita Organization for Planning the Environment v. County of Los Ang.eles ........... 23 ,003) 106 Ca1.App.4th 715 ................................................. .................................... ave Our Neighborhood v. Lishman........... 14,15 !006) 140 Cal.AppAth 1288...................................................................................... ave Our Peninsula Committee v. Monterey County Bd of Supervisors 28, 29, 30 2001) 87 Cal. App. Ah 99.................................................................................... 'chaeffer Land Trust v. San Jose City Council......... 21 1989) 215 Ca1.App.3d 612 .................................. ............................................ Tierra Club v. County of Sonoma ............... 12, 13, 15 1992) 6 Cal.App.4th 1307................................................................................ Sierra Club v. State Board of Forestry ................................ 11 (1994) 7 Ca1.4th 1215.................................................................. Village Laguna of Laguna Beach, Inc. v. Board of Supervisors 34 (1982)134 Ca1.App.3d 1022 ................................................... ...................... Vineyard Area Citizens v. City of Rancho Cordova , 11, 13, 16, 23,30 (2007) 40 Cal.4th.412..................................................................................... Whitman v. Board of Supervisors .18 (1979) 88 Cd.App.3d 397.................................................................... Woodward Park Homeowners Assn., Inc. v. City of Fresno 26 (2007)150 Cal. App. 4th 683..................................................................... 3 27 28 Federal Cases Dolan v. City of Tigard (1994) 483 U.S. 374............................................................... Natural Resources Defense Council v. Callaway (1975) 524 F.2d 79................................................................. 33,34 ................................................... 18 pEMY.,tN1A4u.� II v N N EY. V SS Gp1aI.WA.5u1e 210 �.ce sseu OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OFMANDATE AND 0 10 11 }7 }] 14 15 16 l 18 19 211 21 22 23 24 Statutes Code ofCivil Pn)*:duzo 2511 1085 26 27 � 28 Government Code Section 65]0{� � Statutes Code ofCivil Pn)*:duzo Section 1085 .'.-,^..,^l0` � Government Code Section 65]0{� � Public Resources Code Section 2 1000 etCeq .......^.--.........^.� 210871 oubd.^^^^^^^ "l...........................................�4 ]� 21005eu�d /ui , �,_,,^,_`~` ` ll 2}060� � ^-^`~~^~^-^'^-^`^^^^^^ -~^^^^-~� 37 2108i� uo�� O� � ' �`,/`...-...^.-..`-..-,.-.. 30 2}l66 ...............................................................�� l� �l}67 Su��(c) , `-/`^^^-^`^^^^^~^-^. ` 14 �^-~`~^``^ 21168 ^^~^^-~^^^-^`~--~~`^^^,..,..l0,1} Cal. Code of Regulations,title l4div. 6ch. ] "CEQA Guidelines" Section 15000 ^^'~`^`^^^~`. 15064 uo���Od(l\ ' ~^`~-~^^^`^^^� 12 r'. ,^^^^..`...`,...,~,~-.. }5064T ou����� � ' `-/-^~~-^`^~^`^~^^^^^..,.� � 10 2 l5086^aobd.(u)(5................................................^ ^° l5088 -150885...................................................... � --^-~^^^~^~~`-~^`^^^. ^`^ 12 15088mo�� (u) , � ,,,,`,,^^,,`,,^-..^-. 22�7� 32 �-' 15891^15093 `^`^~^^-^—`-^^^^^`^`^� ' 12 l5l2l_^`^~ 15125,uubd.(u)-.,_.^,,,`_,,,,-,� ^`^� 15126.4 oo�� /u\/�\00) ` �`-'` /,-'-..^...~^.^. 30 `^~^``~ ]5l26/4,ul�bd.(a)/4\[FA r````-/^--......^_. `^`^``^� ]] 15130,ao6d(u)[]\ �`-/`-/^`^^``-^^^^-^^ ^`^^^^ �� ]4 15130, (b) `-'`~^`^^^^`^^^``^-^~``^. ^ ^^^^`^-~^ 20 }5}50,subd.(c) `-'.,...~`...^.,.-. ^^`^^^`^~-� 16 l5l5}`., ^^`^`^`^~~`^^-^^`^^^^^. l5152`uubd./0i3)/c) ^^^^~� / �� �4 ,'`-'`,.,,-..-,.`. 15}J7,uobd./v) ^^. }6 `�/--.....,.-~^^.. l5l62.--.^. ^~^^`^`^^� �� l5168,uubd,/c\(5\ }7 `-/``/................................................}4 15206^ subd./�)(l\ `-'` '--..-`...-^.. }��5�.,,^', ^--`^^^~� 2] .,..................................................}� l5]55'subd.[h\ `,'}8'3} � ��0��� ���o�Undezthe Cal. Environmental Quality (�OUL���uz���]\Gl}4 ' ` � /� � ^.^^.~.^`^..,.l2 1K0otku& Zisohke, vi 1 2 3 Exhibit A 4 Exhibit B 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INDEX OF EXHIBITS 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2003) § 11.4 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006) § 13.12 vii .„o OPENING BRfEFIN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMfPWNT H 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rs wi°i was�va Lame.G 956N I. INTRODUCTION Petitioners Cities of Newport Beach and Tustin (referred to collectively as "Petitioners" or "Cities") filed this lawsuit because the City of Irvine ("Irvine") has ignored central obligations under the California Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq.). As the record shows, the Cities have for years urged Irvine to take seriously these obligations, but Irvine has paid little heed. The Cities regret resorting to judicial intervention to resolve important issues that ought to instead be addressed through neighborly cooperation. This case involves the environmental review process carried out by Irvine for the "2851 Alton Parkway" project ("Project") proposed by Real Parties in Interest Starpointe Ventures and Alton Associates ("Real Parties"). The Project is a residential development located in the Irvine Business Complex ("IBC"), a 2,800 -acre area within Irvine lying directly between Newport Beach and Tustin. From the outset, Petitioners stated that Irvine had an obligation to be candid about the Project's environmental impacts, and to identify and adopt feasible mitigation measures to address those impacts. Instead of responding to the concerns expressed by Petitioners and other stakeholders, Irvine insisted on defending a process designed to obscure the Project's true impacts. In particular, Irvine prepared a Subsequent Environmental Impact Report ("SEIR") that falls well short of meeting the analytical and informational requirements of CEQA. Petitioners ask the Court to issue a Peremptory Writ of Mandate requiring Irvine to prepare an EIR that accurately analyzes and mitigates the Project's direct, indirect, and cumulative impacts. 1 H. STATEMENT OF FACTS Transformation of the IBC Area: from Primarily Industrial Use to Intensified Residential Use. The Project is located in an area of Irvine that was, until relatively recently, dominated by ndustrial and commercial uses. This area was once called the Irvine Industrial Complex -West / The Petitioners have prepared this brief in coordination with Allergan, Inc. ("Allergan"), the Petitioner in the consolidated case (Case No. 07CCO1267), and the brief reflects, to some degree, the two parties' division of the arguments amongst themselves. The Petitioners agree -Continued- -1 - """N v BRffiFIN SUPPORT OF PETMON FOR WR?OFMANDBTE M%D COMPLAINT 0 X 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ter, ur 455r.Pmiw 95,14 io s.�o.0 rsn� "IIC-W '); it is now called the "Irvine Business Complex," or "IBC." (IRV 3447-49?) The IBC s located directly between Newport Beach and Tustin. (Id. at p. 3443; see also ALT 1181.) In 1982, Irvine prepared an EIR addressing the impacts of the newly established IIC-W. IRV 3437-38, 3447 [1992 Preliminary Final EIR incorporating by reference 1982 IIC-W EIR].) n 1985, Irvine prepared a supplemental EIR to the 1982 IIC-W EIR ("1985 IBC SEIR"); this supplement updated the 1982 IIC-W EIR's impact analyses, focusing on traffic and circulation ssues. (IRV 3438.) Between 1982 and 1985, intensive development occurred within the IBC, )rimarily in the form of new office development and conversion from industrial to office uses. ,See id at p. 3447.) Recognizing that the street infrastructure would not be adequate for build -out Df the planned commercial and industrial uses, the 1985 IBC SEIR established mitigation measures to improve circulation within the IBC. (See ibid.) These improvements are described in the 1992 IBC PEIR and are also described in Appendix A to the Project's DSEIR. (See id at pp. 3506-08; see also ALT 1403-05.) These improvements were to be implemented on an as -needed basis, funded by fees exacted from projects as Irvine approved them. (Id. at p. 3523.) In 1989, Irvine adopted General Plan Amendment -16 (GPA -16). GPA -16 established development "caps" for individual areas within Irvine. The cap assigned to the IBC was 3,571 residential units. (IRV 3439, 3448-49.) Irvine soon approved projects that exceeded this cap. Irvine knew then that circulation system improvements would be necessary to accommodate the planned level of development, but deferred identification of improvements until it completed planning for redeveloping the IBC as an "Urban Village." (Ibid.) with Allergan's arguments, and hereby incorporate these arguments by reference herein. 2/ Cites to the certified record of proceedings ("Record") are noted by an acronym followed by page number(s). The acronym "IRV" has been assigned to background documents not specific to the Project, while the acronym "ALT" designates Project -specific documents. Other relevant Irvine background documents, produced to Irvine on a DVD attached to a letter from counsel for Allergan, dated February 14, 2007 (see ALT 5954), are included on two additional CD -R disks that are included as part of the Record. Citations to these documents are noted by the acronym "DVD" followed by the document's original bates number- -2 - IN SUPPORT OF PETITION FOR AND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ter, uz ass Gpinl My,Sieei�o 8v.m+n.G 9581 In response to the rapid conversion of the IBC from its lower intensity industrial origir higher intensity commercial, office and residential uses, in 1992 Irvine proposed amending its General Plan Land Use Element to designate the entire area "Business and Industrial" and to rezone the IBC to create three zoning districts: industrial, multi -use, and residential. (IRV 3450.) Irvine prepared a programmatic Environmental Impact Report -- the "IBC PEIR" -- that analyzed the potentially significant impacts of amending the General Plan and zoning ordinance along these lines. (Id. at pp. 3384-87.) The Cities expressed multiple concerns regarding the proposal's traffic impacts, and the draft IBC PEIR's failure to address these impacts. (See, e.g. id. at pp. 688-92, 695-99 [Tustin and Newport Beach comment letters].) Irvine revised and recirculated the draft PEIR in response to these and other comments and approved the General Plan amendment and rezone. (See id. at p. 919; see also id at 4391-93.) The 1992 rezone increased the IBC's residential development cap from 3,571 units to 3,896 units. (IRV 3387.) Significantly, the IBC PEIR established an absolute cap on residential development: the PEIR stated that "residential development within [the] IBC will be limited t existing and previously approved projects. No additional residential units beyond the existing and approved projects will be allowed within (thej IBC." (Id. at P. 3450, italics added.) When preparing the IBC PEIR, Irvine conducted a traffic study to identify roadway improvements that would be necessary to accommodate the increased development intensity authorized by the rezone. (IRV 2622; see also id at pp. 3136-225.) The traffic study analyzed the traffic impacts that would result from build -out of the proposed rezone of the IBC, 3 and identified a number of intersections and transportation arteries that would eventually fail. (Id. at pp. 2675, 2682.) According to the traffic study, the 1985 IBC SEIR's mitigation measures would not be 3 / The traffic study relied on the assumptions that the IBC would be 75% occupied and Irvine's Traffic Demand Management System ("TDMS") would result in a 15% reduction in traffic within 'he IBC. (IRV 2635.) The IBC PEIR assumed the IBC would be 82% occupied and TDMS mould reduce traffic by 15%. (Idd at p. 3468.) The IBC PEIR and its supporting traffic study did iot describe the various requirements for its TDMS program that would produce the assumed' )ercent traffic reduction. (See id. at p. 3468; see also id. at pp. 2635-36.) -3 - onitP-!N SUPPORT OF PETITION FOR WRIT OF A L&DDATEAND VA 10 11 12 13 14 15 16 17 adequate to effectively mitigate these traffic impacts. Numerous additional mitigation measures would also be required to reduce impacts caused by the 1992 rezone, and even with all mitigation measures in place, 4 some intersections and interchanges would fail to meet performance criteria. (Ibid.; see also id at p. 3388.) Consequently, Irvine adopted a Statement of Overriding Considerations, which included a finding that the plan would result in significant and unavoidable traffic impacts. (Id at pp. 4402-04; 4422-23.) As part of the 1992 IBC rezone effort, Irvine developed an "IBC Database" that capped and tracked potential development intensities by parcel within the IBC. (IRV 2252, 2562-2619 [Exhibit E to IBC PEIR].) The IBC Database allocated "underutilized" parcels a development potential of an "office equivalent" floor -area -ratio ("FAR") of 0.25%; an additional 2.764 million Isquare feet were allocated. (Id at p. 3385.) This cap established the overall level of development Ianalyzed in the IBC PEIR. Irvine claims to control the overall level of development authorized in Ithe IBC through the allocation of "trip budgets" to individual parcels; trips may be transferred 181 19 20 21 22 23 24 25 26 27 28 xen,rxanuc. Mou¢ee uwar.ur �fS C�pW W 5,14 15tla0 Spmuo,G between parcels through Irvine's Transfer of Development Rights ("TDR") program. (ALT 1177, 1185.) The TDR program initially only allowed transfers of unused trips between "nonresidential" uses, but Irvine now claims that transfers are not limited by land use type and may instead by driven by market forces. (See IRV 2657; see also ALT 1177, 1185.) Irvine also imposes "IBC fees," which (according to Irvine) fund circulation facility improvements as needed. (See IRV 3858-61 [Irvine zoning code provisions regarding the IBC fee program].) Since approximately 2001, Irvine has approved residential projects within the IBC at an accelerating pace. (See ALT 6014-15 [attachment to comment letter from Allergan summarizing approved projects].) Initially, Irvine prepared addenda to the IBC PEIR for each project as a " / Irvine anticipated that the adopted mitigation measures would be implemented on an as -need basis, as determined through periodic traffic studies known as "Sliding Year Interim Analyses." (IRV 1144.) Despite repeated requests from the Cities, Irvine has not revealed which of these measures have actually been implemented. (See, e.g., ALT 3606, 3609 [Tustin's relevant comments regarding this issue and Irvine's responses]; see also id. at p. 6733 [Newport Beach testimony at Irvine Planning Commission hearing for Project].) -4 - UPENING BRIEFIN SUPPORT OFPETITION FOR WRIT OFMANDATE AND 21 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9.3 REMY.i11(MNS, MCtuE rl W3MFY.W X55 CgibIMtl,Swe310 Svmo.0 9f61� means of satisfying its obligations under CEQA. From 2001 to 2004, Irvine conducted environmental review in this manner for at least 11 residential and mixed use projects in the IBI:; together, these projects added 2,964 residential units to the IBC. 5 Newport Beach objected to this practice, and Irvine stopped. (See DVD 2C-17-000120, 392 [comments from Newport Beach concerning inappropriate use of addenda and Irvine's responses].) Irvine has long realized that the traffic mitigation measures adopted in 1992, even if implemented, would not be adequate to mitigate the impacts of residential development projects and that, even if they were, Irvine lacks the funds to complete them. (IRV 4402-04 [findings of fact regarding circulation and traffic adopted by Irvine in 1992]; see also id at pp. 4422-23 [adopted Statement of Overriding Considerations]; IRV 3388-91 [list of IBC PEIR circulation and traffic mitigation measures and acknowledged unavoidable significant impacts]; DVD 2C-01- 000463 [e-mail from Marty Bryant, Irvine Deputy Director of Public Works to Judy Vonada, Irvine Assistant City Manager].) For example, in 2002, Irvine planners reviewing the proposed Central Park project observed: While it is understood that intensity for residential element of the project is coming from the transfer and conversion of anticipated office intensity in the IBC, it is possible that the introduction of a 45% increase in residential dwelling units within the IBC could cause significant changes in the required mitigations within the IBC. [¶] [This] considerable increase ... could indicate a significant departure from the [IBC] envisioned in the General Plan. This is particularly true since there are multiple similar requests that have the potential to increase the residential unit cap by up to 64.3%... . (DVD 2C-01-000730.) Since 2004, Irvine considered options for addressing the large influx of new residential development applications in the IBC. (See DVD T-071106-000005-8; ALT 7031-33.) In July '/ See IRV 4914-15 [Metlife Apartments]; id. at pp. 4822-23 [Essex Apartments]; id. at pp - 5722 -24 [RD Olson/Legacy Partners Condominiums]; DVD 2C-06-000067-72 [Lofts at Von Karman]; IRV 4539-41 [Watermarke Condominiums]; id. at pp. 9015-17 [2801 Kelvin]; id. at pp. 5718-20, 6147-49 [Campus Center Apartments]; id. at pp. 7261-63, 86-88 [Plaza]; id. at pp. 9,' 34 [Carlyle at Colton Plaza]; DVD 2C-24-000047-145 [BOSA II]; IRV 9944-46 [Granite Cou. --5- OPENING BRIEF IN SUPPORT OF PET/T/ON FOR WRIT OF MANDATE AND COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 euxit-t. u+ �ss�piww0.saexio S.vmagG 958N .006, a month before Irvine released the DSEIR for this Project, Irvine's staff reported a total of Lpproximately 14,000 units either existed or were approved or pending. (DVD T-071106-000008; �ee also ALT 1145.) The proposed solution — an IBC "Vision Plan" with a "Residential Mixed- Jse Overlay Zone" -- would apply to all new residential projects. (See, e.g. ALT 1278-79; DVD* 3-00-196-280 [January 2006 Draft Vision Plan].) The Vision Plan is pending. Meanwhile, Irvine ias continued to consider and approve residential projects within the IBC, including this Project. See, e.g., id. at pp. 390-98; IRV 8239-47, 9418-23, 9930-36 [resolutions approving, respectively, 2.02 -unit Plaza — Irvine; 248 -unit 2801 Kelvin; 156 -unit Carlyle at Colton Plaza].) As part of its Vision Plan planning process, Irvine is considering increasing the ultimate cap for residential development to as many as 20,000-38,000 units. (ALT 7033; see also id. at p. 3885.) B. The Project The Project is a mutli-family residential apartment complex located on a 3.72± acre parcel, located at the northwest corner of Alton Parkway and Murphy Avenue, within Irvine's IBC. (ALT 11177.) The Project would include 170 residential units, 374 parking spaces within a four -level parking garage structure, and private recreational areas. (Id at p. 1185-86.) The Project site is Icurrently occupied by two adjoining single -story buildings with approximately 78,880 square feet dedicated to warehouse, light industrial, and office uses. (Id. at p. 1185.) The Project would Ireplace the two existing warehouse and office buildings with a four-story structure. (Ibid. ) IAdjacent uses include light industrial and office uses; to the west is a vacant parcel slated for an approved 179 -unit residential development. (Id at p. 1204.) The Irvine General Plan and Zoning Ordinance designated the Project site as urban and industrial and "5.1 IBC Multi -Use", respectively. (ALT 4093.) The "5.1 IBC Multi -Use" zoning designation does not allow residential uses. (See id at pp. 8831-34; see also IRV 3025 [version of "5.1 IBC Multi -Use" zoning designation analyzed in the IBC PEIR, limiting residential use to another existing residential development of 360 units].) Thus, the project required a general plan amendment and zone change to increase the density cap for residential uses within the IBC, and to authorize residential use at the Project site. (Id. at p. 1193.) OPENING BRIEF IN M. FOR WRIT OF MANDATE AND GOMPLAIN7 2 0 10 11 12 13 14 IS 16 17 18 19 20 21, 22 23 24 25 26 27 28 .ssG.wwas.i.iw so.�.,umu C. Environmental Review for the Project In March 2005, Real Parties applied for a General Plan Amendment, Zone Change, Park Plan, Tentative Tract Map, Conditional Use Permit ("CUP"), and a TDR (ALT 217.) In December 2005, Irvine published an Initial Study ("NOP") for the Project. (Id. at pp. 583, 655.) The Cities commented on the NOP, expressing concerns regarding the Project's potentially significant impacts to traffic and parks and recreation, and the potentially significant cumulative impacts caused by the Project in combination with other IBC projects. (Id. at pp. 713-14, 718-19.) In August 2006, Irvine circulated a DSEIR for the Project for a 45 -day public review period. (ALT 1145.) The DSEIR both incorporates by reference and tiers from the IBC PEIR. (Id. at pp. 1159, 1175.) The cumulative impact analysis was based on certain assumptions concerning the number of approved and pending IBC residential projects. (Id at pp. 1213-16.) II This section of the DSEIR explains that recent applications to redevelop sites within the IBC to II residential uses were "anticipated in the [IBC PEIR]." (Id. at p. 1215.) As noted above, however, the IBC PEIR had explicitly capped residential development within the IBC to those residenti projects that had already been approved prior to the preparation of that EIR. (IRV 3450.) 1. Traffic Impact Analysis The DSEIR analyzed the Project's impacts on surrounding streets and intersections at 2010, 2025 and post -2025 at baseline, cumulative, noncumulative, and cumulative with project levels. (Id. at p. 1334.) In forecasting future traffic conditions, the traffic study assumed that certain unspecified roadway improvements will be in place. (Id at p. 2349.) By assuming implementation of roadway improvements, the study increased the "theoretical daily capacities" for IBC roadways. (Ibid.) To determine whether the Project would result in traffic impacts, Irvine used its adopted threshold of significance of a 0.02 increase in the level of service ("LOS") at intersections and roadways in the study area that are projected to operate at a LOS of 1.00 or more. (Id. at p. 2348; see also id. at pp. 8846-86 [2004 Traffic Impact Analysis Guidelines]) Based on these assumptions and criteria, the DSEIR concluded the Project would have no significant direct or cumulative traffic impacts. (Idd at pp. 1339, 1345, 1351.) Strangely, the figures for all futi traffic levels show few intersections operating at deficient LOS, despite the fact that Irvine had -7 - vrcrvuvv ntubh !N 3UPPORT OFPE17TIONFoR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14' 15 16 17 lE 1S 2( 2, 2: 2: 2 2 2 rw+ter,w .is opFd w4sa.no s....m..uussu [ready approved or was considering, prior to the time the DSEIR was released, projects that /ould add approximately 14,000 residential units for the IBC. (Compare, e.g., id at p. 1348 with I. at p. 1350; compare also, id. at p. 1353 with id. at p. 1355; see also DVD T-071106-000008.) Numerous public agencies commented on the DSEIR, including CalTrans, Tustin and 4ewport Beach. (ALT 5617.) CalTrans noted the anomalous results produced by Irvine's traffic mpact analysis and asked Irvine to explain the results. (Id. at p. 5651.) A letter submitted on >ehalf of both Cities expressed numerous ongoing concerns regarding Irvine's reliance on the IBC ?EIR and continued use of the TDR Program, and included specific comments concerning the DSEIR's inadequate impact analysis and mitigation for both recreation and traffic. (Id. at pp. 5667-89.) In a separate letter, Tustin urged Irvine to impose IBC traffic mitigation measures as conditions of Project approval because "the DSEIR assumes some of the IBC improvements to be in place when analyzing cumulative traffic impacts." (Id at pp. 5623-25.) Irvine responded by stating that "the developer of [the Project] will be required to pay IBC fees." (Id. at p. 5628.) Irvine concluded that none of the IBC PEIR mitigation measures were applicable to Project. (ALT 1365-66.) Neither the Draft nor the Final SEIR describe the IBC traffic mitigation fees that Irvine later claimed would be imposed on the Project's developers as the project's fair 11 share of assumed and necessary future IBC roadway improvements. (See id at pp. 1404-05; see II also id at p. 3610.) The DSEIR's mitigation measure table indicates that the 1985 and 1992 traffic mitigation measures do not directly apply to the Project, but "IBC Fees" are referenced in the comments column. (Ibid.) Irvine suggested that such fees may be imposed as part of a II development agreement for the Project, but the SEIR did not identify or analyze the provisions of the development agreement, the amount of IBC Fees to be imposed, or the purposes of those fees. (Id. at p. 1201.) Moreover, the Project, as approved, does not require payment of fees earmarked for IBC roadway improvements. (Id at p. 8473-74.) 2. Parks and Recreation Impact Analysis A "park plan" was prepared for the Project detailing park dedication requirements. (ALT 1193, 1323; see also id at pp. 953-77 [staff report with attached park plan].) The DSEIR did not, however, analyze the Project's potentially significant impacts upon parks and recreation amenities. OPENING -8 - PEEIEION FOR WRIT Of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pFMY.111J1.1.iMdISEe1 �SStgily Aby $y,110 �.Gmau (Ibid) Instead, the DSEIR simply recited Irvine's parkland dedication requirements and concluded, without any analysis, that, because the Project applicant would be required to commit to parkland dedication and pay in -lieu fees required by the approved park plan, the Project would not result in any significant impacts to parks and recreation. (Idd at p. 1323-24.) Irvine requires the dedication of parkland or contribution of in -lieu fees based on a project's estimated number of residents. (See ALT 1323.) To calculate the number of anticipated Project residents, Irvine used a "population generation factor" ("PGF") of 1.3 residents per unit. According to this estimate, the, 170 -unit Project would generate approximately 221 residents. (Ibid.) Allergan criticized the PGF because it appeared to underestimate the number of IBC residents the Project would generate. (See id at p. 7033-34.) The PGF, which Irvine adopted by resolution in 2003, adjusted the estimate of residents per dwelling unit ostensibly in response to data collected by the 2000 Census. (See 2C-15- 000266.) A more recent survey performed by Irvine's own consultants, however, found that each IBC residential unit generated, on average, 1.86 residents. (See DVD* B-00-000626-29.) 6 Elsewhere, Irvine stated that it uses this latter study in its "IBC planning efforts to address issues such, as recreational opportunities...." (See DVD* B-00-002595.) Because Irvine used the lower PGF to calculate dedication requirements, the resulting exaction for parks and recreational amenities was deficient by at least a third. The Community Services Commission considered approving the park plan by resolution on May 3, 2006, approximately ten weeks before the DSEIR was released for public review and comment. (Compare ALT 953 with id at P. 1145.) The Community Services Commission recommended approval of the Park Plan. (Ibid.; see also id. at p. 6983.) / Prior to project approval, Allergan submitted a DVD to Irvine that included records regarding he pending "Vision Plan." Irvine did not include these documents in the certified Record. By xcluding these documents, Irvine has failed to certify a "complete record:" (Protect Our Water v. 'ounty of Merced (2003) 110 Cal.App.4th 362, 373.) Citations to these documents are marked: DVD*". This evidence is the subject of Petitioners' Request for Judicial Notice ("Request") lotion to Augment the record ("Motion"), filed concurrently with this brief. ' -r a Outt-ORTOFFVVION FOR I 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 2-` 2( T 21 xorr.>Hwss.��e wm <s, ap"pw w ;;S� 210 814 9vmub,G95iN Project Approval On February 15, 2007, the Planning Commission held a hearing to consider the FEIR, ;one Change, Tentative Subdivision Map, CUP application, Park Plan and Development agreement. (See ALT 6354-79.) At this hearing, several commenters, including Newport Beach, estified concerning the Project and the proposed conditions of approval. (See, e.g., id at pp. ;768-83.) The Planning Commission adopted resolutions recommending that the City Council approve various aspects of the Project. (Id. at pp. 6919-22, 6941-45, 6946-51, 6952-74, 6975-82, 1983-89.) One resolution included a finding that the TDR required for the Project would have "no adverse impact on the surrounding circulation system." (See id at p. 6978.) Petitioners submitted additional comments concerning deficiencies in the traffic impact analyses, attaching a letter prepared by a traffic consultant. (ALT 6994-7001.) The staff report to the City Council included perfunctory responses to the consultant's comments. (Id. at p. 7383.) On March 27, 2007, the Irvine City Council held a hearing to consider the Project. (ALT 7351-53.) The City Council adopted a resolution certifying the FEM, approving a Mitigation Monitoring Plan, and adopting Findings of Fact. (Id. at pp. 8117-19.) Irvine, however, did not require, as enforceable mitigation measures, payment of IBC Fees for the Project's contribution to traffic mitigation measures or of in -lieu community park fees. (Id. at pp. 8138.) Nor did Irvine adopt a Statement of Overriding Considerations for the Project. (See id. at p. 8118.) The City Council also adopted resolutions upholding the Planning Commission's approval of the Tentative Tract Map, CUP (including the TDR), and park plan for the Project; adopted a resolution approving the GPA; and adopted separate ordinances approving the zone change and development agreement. (Id. at pp. 8142-46, 8147-70, 8171-79, 8180-86, 8187-93, 8458-94.) On March 29, 2007, Irvine filed a Notice of Determination ("NOD") for the Project. (ALT 8229.) On April 26, 2007, Petitioners commenced this action. III. STANDARD AND SCOPE OF REVIEW This court has jurisdiction over this action under Public Resources Code section 21168 and Code of Civil Procedure section 1085. The Project requires a general plan amendment and a zone change, two quasi -legislative agency actions that are reviewed under traditional mandamus. (See, -10 - BRIEF IN SUPPORT OFPETMON FOR [4Us9Jw.n,1A 9 10 11 12 13 14 15, 16 17 18 19 20 21 22 23 24 25 26 27 28 M.NIiT.IJP e.g., Gov. Code, § 65301.5.) Because the nature of judicial review is determined by the "dor v concern of the action taken," traditional mandamus under Code of Civil Procedure section 1085 applies. (See Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.AppAth 712, 727 (quoting City of Rancho Palos Verdes v. City Council (1976) 59 Cal.App.3d 869, 885).) Under these statutes, a court must set aside an agency action if the agency committed a prejudicial abuse of discretion. A prejudicial abuse of discretion is established if the agency fails II to proceed in the manner required by law or if the agency's findings are not supported by II substantial evidence. (Pub. Resources Code, § 21168; Laurel Heights Improvement Assn. v. I I Regents of the Univ. of Cal. (1988) 47 Cal.3d 376, 392, fit. 5 (Laurel Heights I).) The court II presumes the correctness of the agency's decision and the petitioners challenging the decision bear II the burden of proving that the EIR was legally inadequate or that the record does not contain substantial evidence to support the agency's decision.(See Al Larson Boat Shop, Inc. v. Board of I Harbor Commissioners (1993) 18 Cal.AppAth 729, 740.) An agency also fails to proceed in the manner required by law by violating the "informational requirements" of CEQA. Such a failure results in a subversion of the purposes of CEQA by precluding informed decision making and public participation. (Fall River Wild Trout Foundation v. County of Shasta 0999) 70 Ca1.App.4th 482, 490-491; see also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 (Kings County Farm Bureau).) Such error is presumed to be prejudicial, regardless of whether a different result would have occurred had the lead agency complied with CEQA. (Pub. Resources Code, § 21005, subd. (a).) The California Supreme Court recently observed that this type of failure constitutes a failure "to proceed in a manner prescribed by CEQA," which is reviewed de novo. (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 CalAth 412, 435 (Vineyard Area Citizens) (quoting Sierra Club v. State Board of Forestry (1994) 7 CalAth 1215, 1236).) IV. ARGUMENT Petitioners have a single, yet vital, interest in this case: ensuring that all of the Project's mpacts are disclosed, analyzed and mitigated. Petitioners have long recognized that whether', ipprove the Project, or any other project in the IBC, is a matter left to the wisdom and judgment of -11 _ OPENING BRIEFINSUPPORTOFPETITION FOR WRIT OFMANDATEAND C0 MPLAIN7 2 H 9 10 11 12 13 14 15 16 17 18 19 20 21 22 he Irvine City Council. (See, e.g., DVD 2C-17-000120 [letter from Newport Beach City Manager o Irvine Planning Commission].) Irvine does not have discretion, however, with respect to its ;ore obligations under CEQA. In order to comply with CEQA, Irvine must: (1) prepare an EIR hat analyzes the direct and cumulative impacts of this Project; (2) appropriately identify and nitigate all environmental impacts of the Project if it is feasible to do so; and (3) adopt findings, >upported by substantial evidence, spelling out how Irvine has carried out these obligations. (See -EQA Guidelines, §§ 15088-15088.5, 15091-15093.) m A Irvine Violated CEQA by Tiering from the IBC PEIR and by Improperly Incorporating by Reference the IBC PEIR. Irvine abused its discretion when it prepared a subsequent EIR tiering off the IBC PEIR. CEQA requires that Irvine prepare an independent, stand-alone EIR for the Project. "The [CEQA] Guidelines contemplate a `subsequent' EIR for an already existing project that is approved in an EIR and that later experiences `substantial changes' either in the project or in the circumstances in Iwhich the project will be undertaken." (Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.AppAth 268, 282 (citing CEQA Guidelines, § 15162).) "The tiering process may not be used when a project is not consistent with a program, plan, policy or ordinance for which the prior EIR was prepared." (1 Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar 2006) § 11.4 (attached at Exhibit A) (citing Sierra Club v. County of Sonoma (1992) 6 Cal.AppAth 1307 (Sierra Club)).) Under CEQA, an "inconsistent project is treated as a new project that has not been subject to a prior environmental review." (Ibid.) "Case law does not establish a clear-cut test for determining when a new application should be treated as an application for a change in a previously approved project as opposed to a new project[.]" (Gentry v. City. of Murrieta (1995) 36 Cal.App.4th 1359, 1401 (Gentry).) An agency cannot, however, rely on tiering if the new project's inconsistency with the original project I' / The CEQA Guidelines appear at title 14 of the California Code of Regulations, beginning at section 15000. The CEQA Guidelines are accorded "great weight ... except where a provision is clearly unauthorized or erroneous." (Laurel Heights 1, supra, 47 Cal.3d at p. 391, fn. 2.) IN 12 - WFOR MANDATE AND 23 24 25 26 27 28 azatt,mw.�s.�noog �a n+nwsr,ur 45f Cyibl W45u1e 110 ]wmbG 95414 he Irvine City Council. (See, e.g., DVD 2C-17-000120 [letter from Newport Beach City Manager o Irvine Planning Commission].) Irvine does not have discretion, however, with respect to its ;ore obligations under CEQA. In order to comply with CEQA, Irvine must: (1) prepare an EIR hat analyzes the direct and cumulative impacts of this Project; (2) appropriately identify and nitigate all environmental impacts of the Project if it is feasible to do so; and (3) adopt findings, >upported by substantial evidence, spelling out how Irvine has carried out these obligations. (See -EQA Guidelines, §§ 15088-15088.5, 15091-15093.) m A Irvine Violated CEQA by Tiering from the IBC PEIR and by Improperly Incorporating by Reference the IBC PEIR. Irvine abused its discretion when it prepared a subsequent EIR tiering off the IBC PEIR. CEQA requires that Irvine prepare an independent, stand-alone EIR for the Project. "The [CEQA] Guidelines contemplate a `subsequent' EIR for an already existing project that is approved in an EIR and that later experiences `substantial changes' either in the project or in the circumstances in Iwhich the project will be undertaken." (Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.AppAth 268, 282 (citing CEQA Guidelines, § 15162).) "The tiering process may not be used when a project is not consistent with a program, plan, policy or ordinance for which the prior EIR was prepared." (1 Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar 2006) § 11.4 (attached at Exhibit A) (citing Sierra Club v. County of Sonoma (1992) 6 Cal.AppAth 1307 (Sierra Club)).) Under CEQA, an "inconsistent project is treated as a new project that has not been subject to a prior environmental review." (Ibid.) "Case law does not establish a clear-cut test for determining when a new application should be treated as an application for a change in a previously approved project as opposed to a new project[.]" (Gentry v. City. of Murrieta (1995) 36 Cal.App.4th 1359, 1401 (Gentry).) An agency cannot, however, rely on tiering if the new project's inconsistency with the original project I' / The CEQA Guidelines appear at title 14 of the California Code of Regulations, beginning at section 15000. The CEQA Guidelines are accorded "great weight ... except where a provision is clearly unauthorized or erroneous." (Laurel Heights 1, supra, 47 Cal.3d at p. 391, fn. 2.) IN 12 - WFOR MANDATE AND b 7 8 9 10 11 12 13 14 15 16 17 18 warrant an independent, stand-alone EIR. In Sierra Club, for example, a mining company apr" a to amend a county's adopted plan to expand the area where aggregate could be mined. (6 Cal.AppAth at p. 1314.) The county found that all the resulting environmental effects had been II considered in the prior EIR and it therefore adopted a negative declaration. According to the II Court, "[Public Resources Code] [s]ection 21166 and the substantial evidence standard ... apply only when the question is whether more than one EIR must be prepared for what is essentially the II same project."' (Id. at p. 1320.) The court found that the requested amendments were not part of II the original project because "the evidence does not support a determination that [the] proposed II site-specific project was either the same as or within the scope of the project, program, or plan I I described in the program EIR." (Id. at pp. 1320-1321.) Thus, as the California Supreme Court II recently explained in discussing tiering under CEQA, "[o]nce a general project impact has been II analyzed in the broadest first-tier EIR, the agency saves time and resources by relying on that first - Itier analysis in later, more specific environmental analysis documents, provided of course that passage of time or factors peculiar to the later project phase do not render the first-tier analysi inadequate." (Vineyard Area Citizens, supra, 40 CalAth at p. 431, fn. 7.) Under these principles, in this case Irvine could tier off the IBC PEIR only if the 2851 II Alton Parkway project is consistent with the earlier 1992 IBC plan, and the passage of time has not rendered the IBC EIR inadequate. As explained below, however, there are two reasons why 19 Irvine erred by tiering off the IBC EIR. First, dramatically changed conditions in the IBC render 20 the IBC PEIR's analysis stale and irrelevant to the Project's environmental impacts. The passage 21 of time, combined with the wide -scale evolution of the IBC from industrial and commercial uses 22 to largely residential and light commercial uses, necessitate preparation of a new EIR for the 23 Project. Second, the Project is neither a `change in a previously approved project" nor a project 24 contemplated in or consistent with the IBC PEIR. Irvine's attempt to incorporate by reference the 25 IBC PEIR analyses was also flawed. As will be explained below, Irvine violated CEQA by not 26 providing a roadmap of the IBC PEIR analyses upon which the SEIR relies and by failing to 27 28 II address the unavoidable significant impacts identified in the IBC PEIR w>n. txew�wmgae II -13 - I OPENING BR/EFINSUPPORr'OFPET1770NFOR WRIT OFMANDAfEAND COMPLAIN :: r�mwassu:�o 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2C 21 22 22 24 2- 2f 2; 2£ xdv.ixoeus.leoa¢.a r,wEr.ur usGpi.iw¢sr.11o Svreb,G9NN 1. The IBC PEIR is stale and cannot be relied upon in the analysis of the Project's potentially significant environmental effects. The environmental setting, standards, and available mitigation measures have all changed Iramatically in the 15 years since Irvine certified the IBC PEIR. Irvine's own records show that, ;ince 1992, Irvine has approved many times the amount of residential development intensity >riginally contemplated for the IBC area. (Compare, e.g., IRV 3450-54 with DVD T-071106- )00008 [Irvine planning official's testimony regarding pending projects at hearing concerning )roposed and pending IBC Vision Plan].) The IBC has transformed from an essentially industrial and commercial center to a light commercial and increasingly residential mixed-use community. ,See ALT 1177, 1185 [Draft EIR descriptions of IBC].) The IBC PEIR did not anticipate this transformation; in fact, the 1992 EIR and rezone placed a 3,896 -unit cap on residential development. (IRV 3451.) Since the time of the IBC PEIR certification and as of July 11, 2006, Irvine had approved or was considering projects totaling approximately 14,000 residential units (see DVD T-071106-000008) -- more than three times the number of residential units contemplated and analyzed in the IBC PEIR. Under such circumstances, Irvine's continued reliance on the IBC PEIR is beyond the boundaries of its discretion. Irvine should have concluded that the Project was neither the "same as [nor] within the scope of the project, program, or plan described in the [1991 IBC] EIR," and should have prepared a stand-alone EIR for the Project (See Sierra Club, supra, 6 Cal.AppAth at pp. 1320-1321 (citing CEQA Guidelines, § 15168, subd. (c)(5).) In failing to do so, Irvine abused its discretion. "The rationale for limiting the circumstances under which a supplemental or subsequent EIR may be prepared is `precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired (§ 21167, subd. (c)), and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process."' (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.AppAth 1385, 1398 (Mani Bros.) (quoting Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073) (italics added); see also Save Our Neighborhood v. Lishman (2006) 140 14 - BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 �ssoow,.ae,y®„ia SvmugG%11� Ca1.App.4th 1288, 1296 [concluding that changes in the project required preparation of a stand - alone environmental analysis; agency erred by relying on section 21166].) In this case, by contrast, the Project is emblematic of a broader transformation of the IBC into a mixed-use residential area. That transformation has potentially far-reaching impacts, particularly with respect to land use and planning, population and housing, public services, recreation, circulation and traffic and utilities and service systems. These impacts were not anticipated or analyzed in the IBC PEIR, nor were they addressed in Irvine's review of individual projects, usually in the form of addenda, performed since 1992. Nor, indeed, were they addressed in the Project SEIR. (See, e.g., ALT 1214, 1213-15 [DSEIR discussion of assumptions regarding cumulative impact analyses, which includes: (a) a table that fails to identify any commercial or institutional uses within the IBC (Planning Area 36), and (b) a discussion that does not describe the cumulative effects of the numerous past IBC residential projects].) As a result of its piece- meal approach, Irvine has approved projects that have rapidly transformed the IBC into a mixed- use residential area without ever understanding, much less disclosing, the impacts of doing so The administrative record is replete with evidence demonstrating that it was unreasonable for Irvine to conclude that the project analyzed in the IBC PEIR and this Project are "essentially the same." (Sierra Club, supra, 6 Cal.App.4th at p. 1320.) Irvine prepared the IBC PEIR to Ianalyze the impacts of a comprehensive general plan amendment and rezone of the entire IBC, but that PEIR was intended to analyze the impacts of those already existing and pending residential developments. (IRV 3455-61.) Thus, the PEIR contemplated up to 3,898 residential units in the IBC and no more. (Id. at pp. 3451-52, 3455, 3460-61.) The IBC PEIR did not analyze the conversion of the IBC to residential mixed-use on the grand scale that has occurred through incremental approvals since 1992. Because of this fundamental inconsistency, Irvine erred by tiering and should have instead prepared a new EIR for the Project. 2. The SEEP, improperly incorporated by reference the IBC PEIR Irvine further violated CEQA by improperly incorporating by reference the IBC PEIR's analyses. Under CEQA, "[w]here an EIR ... uses incorporation by reference, the incorporate part of the referenced document shall be briefly summarized where possible or briefly described if VPENING -is - aui-FURTOFFET777ONFOR WRIT OFMANDATE AND 2 1 3 . 4 5 6 7 8 9 10 11 12 13 14 15 161 17 18 19 20 21 22 23 24 25 2E 2i 2E uw,xxwnus.esoc�me euntx, w .sscadnusa.xio 5®mb.G9N1. he data or information can not be summarized. The relationship between the incorporated part of he referenced document and the EIR shall be described." (CEQA Guidelines, § 15150, subd. (c).) kn EIR that uses this device must give the reader a "road map to the information it intends to ;onvey." (Vineyard Area Citizens, supra, 40 CalAth at p. 443 (citing CEQA Guidelines, §§ 5150, subd. (c), 15152, subd. (g).) As the Vineyard Area Citizens court explained, "[t]he audience to whom an EIR must communicate is not the reviewing court but the public and the government officials deciding on the project. That a party's briefs to the court may explain or supplement matters that are obscure or incomplete in the EIR, for example, is irrelevant, because the public and decision makers did not have the briefs available at the time the project was reviewed and approved. The question is therefore not whether the project's significant environmental effects can be clearly explained, but whether they were." (ibid., italics in original.) Here, the SEIR suffers from the same flaw identified in Vineyard Area Citizens. The SEIR incorporates by reference the IBC PEIR but does not summarize the analyses from the IBC PEIR upon which its analyses rely. (See id at pp. ALT 1159, 1174-75, 1177, 1185 [DSEIR's general summaries of the IBC PEIR].) The result is an impenetrable jumble that fails to provide decision - makers and the public with a clear account of the impacts of the Project in the broader context of the ongoing transformation of the IBC. 3. The SEIR ignores unavoidable significant impacts identified in the IBC PEM Because the DSEM tiered from the IBC PEIR and relied on the previous EIR's impact analyses, Irvine should have addressed the unavoidable significant impacts identified in 1992 and either mitigated them or publicly acknowledged these continued impacts by adopting a statement of overriding considerations for the Project. "The requirement of a statement of overriding considerations is central to CEQA's role as a public accountability statute; it requires public officials, in approving environmentally detrimental projects, to justify their decisions based on counterbalancing social, economic or other benefits, and to point to substantial evidence in support." (Communities for a Better Environment v. California Resources Agency (2002) 103 Ca1.App.4th 98, 124-125 (CBE).) Former CEQA Guidelines section 15152, subdivision (f)(3)(c), authorized agencies to forego adopting a statement of overriding considerations ("SOC") for second-tier projects with significant unavoidable impacts. In striking down this guideline, the OPENING BRIEF IN -16- FOR WRIT OFMANDATE AND COMPLAIM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M441 kV, W �"c�edq,q s:ie„o SvmnhG9AN CBE Court stated: "Even though a prior EIR's analysis of environmental effects may be subi- to being incorporated in a later EIR for alater, more specific project, the responsible public officials must still go on the record and explain specifically why they are approving the later project despite its significant unavoidable impacts." (Id. at pp. 124-125, italics in original.) Here, in 1992, when Irvine certified the IBC PEIR, it acknowledged that rezoning the IBC would have unavoidable significant impacts in a variety of impact categories, including traffic and circulation and parks and recreation. (IRV 3388-430 [summary of environmental impacts]; see also id. at pp. 4402-06, 4408-09, 4411-12, 4414-15, 4419-20, 4422-23 [adopted findings and SOC].) The Project SEIR incorporated by reference and tiered from the IBC PEIR's analyses, and cited the TDR program in concluding that the Project would not have any significant air quality or traffic impacts. (See, e.g., ALT 1230 [DSEIR's air quality impact analysis concludes that the Project's impacts are less than significant because the development intensity within the IBC will remain below cap analyzed in IBC PEIR].; see also id. at p. 1333 [traffic impact analysis, stating traffic model subtracted vehicle trips from sending site].) In analyzing the Project in the SEIF Irvine never acknowledged that the prior PEIR identified these and other unmitigated significant adverse environmental effects; nor did Irvine identify or analyze those effects. (See, e.g., id. at p. 1403 [DSEIR Mitigation Measures table, stating 1985 and 1992 IBC traffic mitigation measures "are needed to fully mitigate the current General Plan and proposed GPA and rezoning"], italics added.) When Allergan urged Irvine to address the unmitigated impacts identified in the IBC PEIR, Irvine simply stated "This is a Subsequent EIR with no unmitigatable impacts. See Response 02-18." (Id at pp. 5735, 5763.) .Because the DSEIR did not address (much less cure) the previously unmitigated effects, Irvine was required to "go on the record” by adopting a SOC for the Project. Irvine, however, did not adopt a SOC. (Id. at pp. 8118.) For this reason, in the words of the CBE decision, Irvine failed to "go on the record and explain specifically" why Irvine approved the Project "despite its significant unavoidable impacts." (103 Cal.App.4th at pp. 124- 125 (italics in original).) Irvine thus failed to proceed in the manner required by law. 111 OPENING BRIEF OJ -17- IONFOR ...m I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 B. Irvine Violated CEQA by Failing to Adequately Disclose the Project's Cumulative Impacts. The CEQA Guidelines define "cumulative impacts" as "two or more individual effects which, when considered together, are considerable or.. . compound or increase other environmental impacts." (CEQA Guidelines, § 15355.) "The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (Id., subd. (b); see Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.AppAth 1019,1024-1025 (L.A. USD).) Cumulative impacts analysis is necessary because "[t]he full environmental impact of a proposed ... action cannot be gauged in a vacuum." (Whitman v. Board of Supervisors (1979) 88 Ca1.App.3d 397, 408 (Whitman).) "[A]n agency may not ... [treat] a project as an isolated `single shot' venture in the face of persuasive evidence that it is but one of several substantially similar operations.... To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster." (Ibid. (quoting Natural Resources Defense Council v. Callaway (1975) 524 F.2d 79, 88.) As another court explained: One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources in which they interact. (L.A. USD, supra, 58 Cal.AppAth at p. 1025 (quotation marks omitted).) Thus, "it is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it must reflect a conscientious effort to provide public agencies and the general public with adequate and relevant detailed information about them." (San Franciscans for Reasonable Growth v. City Iand County of San Francisco (1984) 151 Ca1.App.3d 61, 79; see also Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Ca1.App.3d 421, 430-432.) A proper analysis of cumulative impacts involves two steps. The first question is whether the combined effects from both the proposed project and other projects would be cumulatively -18- M SUPPORT OF PETFI70N FOR WRIT OF COMPLAINT 22 23 24 25 26 27 28 n,uaay. ur 455OpbI Wg5iwe110 9vnvW.G9HN B. Irvine Violated CEQA by Failing to Adequately Disclose the Project's Cumulative Impacts. The CEQA Guidelines define "cumulative impacts" as "two or more individual effects which, when considered together, are considerable or.. . compound or increase other environmental impacts." (CEQA Guidelines, § 15355.) "The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (Id., subd. (b); see Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.AppAth 1019,1024-1025 (L.A. USD).) Cumulative impacts analysis is necessary because "[t]he full environmental impact of a proposed ... action cannot be gauged in a vacuum." (Whitman v. Board of Supervisors (1979) 88 Ca1.App.3d 397, 408 (Whitman).) "[A]n agency may not ... [treat] a project as an isolated `single shot' venture in the face of persuasive evidence that it is but one of several substantially similar operations.... To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster." (Ibid. (quoting Natural Resources Defense Council v. Callaway (1975) 524 F.2d 79, 88.) As another court explained: One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources in which they interact. (L.A. USD, supra, 58 Cal.AppAth at p. 1025 (quotation marks omitted).) Thus, "it is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it must reflect a conscientious effort to provide public agencies and the general public with adequate and relevant detailed information about them." (San Franciscans for Reasonable Growth v. City Iand County of San Francisco (1984) 151 Ca1.App.3d 61, 79; see also Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Ca1.App.3d 421, 430-432.) A proper analysis of cumulative impacts involves two steps. The first question is whether the combined effects from both the proposed project and other projects would be cumulatively -18- M SUPPORT OF PETFI70N FOR WRIT OF COMPLAINT 0 Q 10 11 12 13 14 15 16 17 18 19 20 significant. If the agency answers this question in the affirmative, then the second question is whether "the proposed project's incremental effects are cumulatively considerable." (CBE, supra, 103 Cal-App.4th at p. 120 (italics added); see CEQA Guidelines, § 15064, subd. (h)(1).) In general, the poorer the quality of the existing environment, the more likely it is that a project's incremental contribution to future cumulative conditions will be significant (i.e., "cumulatively I considerable"). (Ibid; see also Kings County Farm Bureau, supra, 221 Cal.App.3d at p. 720.) In this case, Irvine could have performed programmatic review of the now pending Vision Plan for the IBC before conducting review for this Project. (See ALT 7031-33 [Allergan comments urging this approach].) Because Irvine elected to proceed with this and other individual Projects before conducting programmatic review, Irvine was at least required to prepare an adequate analysis of the Project's cumulative impacts. Irvine's approach obscured the Project's cumulatively considerable contribution to traffic and other impacts in two ways: (1) the scope of Irvine's analysis ignored projects that were reasonably foreseeable at the time Irvine performed its analysis, and (2) Irvine used a "significance threshold" to evaluate the Project's traffic impac' that impermissibly obscured the Project's contribution to cumulative traffic congestion. 1. Irvine's assumptions regarding cumulative impacts failed to consider all past, present and probable future projects. The transformation of the IBC to a residentially -oriented area has been underway since at least 1992. Before considering this Project, and numerous other recently approved residential projects, Irvine should have performed a comprehensive analysis of the cumulative effects of the overarching transformation. It did not. Instead, Irvine adopted an arbitrary cut-off date for purposes of determining whether to consider other proposals in its cumulative impact analysis for the Project. This approach violated CEQA. "When faced with a challenge that the cumulative impacts analysis is unduly narrow, the court must determine whether it was reasonable and practical to include the omitted projects and whether their exclusion prevented the severity and significance of the cumulative impacts from being accurately reflected." (Bakersfield Citizens for Local Control v. City of Bakersfield (20 124 Cal.AppAth 1184, 1215.) "Projects are constantly being fed into the environmental review BRIEFIN -19 - PETITION FOR WRIT OF AIL4,MDA TE AND COMPL4INT 21 22 23 24 25 26 27 28 MANLEY,W .sscpwld.CSu�ilo sa�u.unn� significant. If the agency answers this question in the affirmative, then the second question is whether "the proposed project's incremental effects are cumulatively considerable." (CBE, supra, 103 Cal-App.4th at p. 120 (italics added); see CEQA Guidelines, § 15064, subd. (h)(1).) In general, the poorer the quality of the existing environment, the more likely it is that a project's incremental contribution to future cumulative conditions will be significant (i.e., "cumulatively I considerable"). (Ibid; see also Kings County Farm Bureau, supra, 221 Cal.App.3d at p. 720.) In this case, Irvine could have performed programmatic review of the now pending Vision Plan for the IBC before conducting review for this Project. (See ALT 7031-33 [Allergan comments urging this approach].) Because Irvine elected to proceed with this and other individual Projects before conducting programmatic review, Irvine was at least required to prepare an adequate analysis of the Project's cumulative impacts. Irvine's approach obscured the Project's cumulatively considerable contribution to traffic and other impacts in two ways: (1) the scope of Irvine's analysis ignored projects that were reasonably foreseeable at the time Irvine performed its analysis, and (2) Irvine used a "significance threshold" to evaluate the Project's traffic impac' that impermissibly obscured the Project's contribution to cumulative traffic congestion. 1. Irvine's assumptions regarding cumulative impacts failed to consider all past, present and probable future projects. The transformation of the IBC to a residentially -oriented area has been underway since at least 1992. Before considering this Project, and numerous other recently approved residential projects, Irvine should have performed a comprehensive analysis of the cumulative effects of the overarching transformation. It did not. Instead, Irvine adopted an arbitrary cut-off date for purposes of determining whether to consider other proposals in its cumulative impact analysis for the Project. This approach violated CEQA. "When faced with a challenge that the cumulative impacts analysis is unduly narrow, the court must determine whether it was reasonable and practical to include the omitted projects and whether their exclusion prevented the severity and significance of the cumulative impacts from being accurately reflected." (Bakersfield Citizens for Local Control v. City of Bakersfield (20 124 Cal.AppAth 1184, 1215.) "Projects are constantly being fed into the environmental review BRIEFIN -19 - PETITION FOR WRIT OF AIL4,MDA TE AND COMPL4INT 3 4 5 6 7 8 9 10 11 12 13 14 15 ,rocess. The problem of where to draw the line on `projects under review' that must be included n the cumulative impact analysis of a particular project could be solved by the use of a reasonable 101 171 18 19 20 21 22 23 24 25 2E 2, 21 nvcr,liwn�w�, e+oog ae .ur s.�musleu 210 utoff date which could be set for every project according to a standard procedure." (San ,ranciscans for Reasonable Growth, supra, 151 Cal.App.3d at p. 75, fn. 14; see CEQA 3uidelines, § 15130, subd. (b).) Here, Irvine failed to consider all reasonably foreseeable probable future projects in the :)EIR's cumulative impact analyses. Irvine did not consider several projects for which it received pplications within a few months of December 19, 2005, the NOP publication date. (See ALT ;672-73, 5695 [Newport Beach comment identifying several projects not considered in cumulative mpacts analyses and Irvine responses to same].) When the Cities pointed out projects omitted mom the cumulative impact analyses, Irvine responded that applications for several of these arojects were not received until months after the Project's NOP was published. (Ibid.) Yet, the courts invalidated down a former CEQA Guideline establishing the NOP publication date as a cut- off date for determining whether proposed projects were reasonably foreseeable. (See CBE, supra, 103 Cal.AppAth at p. 122.) Irvine's traffic impact analysis for the Project contained similar flaws. Irvine's traffic consultant used an arbitrary date — July 19, 2005 — as the cut-off date for considering other projects in the traffic study. (ALT 2776-78 [Attachment A to traffic study scope of work, list of approved and pending projects]. But see id. at p. 2349 [DSEIR Appendix H, traffic study discussion of methodology stating date of approval of scope of work, March 27, 2006, would be used as the cut-off date].) The FSEIR included a supplemental traffic study, which attempted to cure this error by updating the list of projects considered in the traffic analysis. (See id at pp. 5785, 5813-15.) This list of projects, however, used an equally arbitrary cut-off date — March 22, 2006 — thereby omitting several of the same pending projects that the Cities identified in their initial comments. (Compare id at pp. 5673 [Cities' comments indicating several projects, including: the Village (264 units), Mountain Vista (190 units), Park Avenue (187 units), and the Metropolis (381 units), were omitted from analysis] with id. at pp. 5813-15 [list of projects considered in supplemental traffic study].) Letters from Irvine's traffic consultant do not explain -20 - OPENING BRIEF INSUPPORT OFFETITION FOR AND COMPLAINT 10 11 12 13 14 15' 16 17 18 19 20 21 22 23 24 25 26 27 28 why the updated traffic study used March 22, 2006, as the cut-off date for considering pendir projects. (See id. at p. 5785.) Irvine's knowledge of these omitted pending projects meant it was required to consider them in the Project's SEIR, or at least provide a reasonable explanation for excluding them. (San Franciscans for Reasonable Growth, supra, 151 Cal.App.3d at p. 75.) Irvine did neither. Instead, the cumulative impact analysis was based upon the faulty premise that 10,037 residential units were approved or pending at the time the DSEIR was prepared, when in fact this number was I I much closer to 14,000. (Compare ALT 1215-16 [DSEIR list of approved and pending projects] 11 with DVD T-071106-000008.) Indeed, in all areas of the DSEIR (except the traffic impact Ianalysis), Irvine used the lower estimate of approved and pending projects for its cumulative impact analyses. (See id at pp. 1213-16.) Furthermore, the list of approved and pending projects provided in the DSEIR is itself misleading, because it states that the list is current "[a]s of July 2006" when in fact, according to Irvine's responses to comments, the cut-off date was December 19, 2005. (Compare id at p. 1215 with 5695.) Thus, Irvine's effort to identify, analyze and mitigate the Project's cumulative impacts does not constitute a "conscientious effort to provide public agencies and the general public with adequate and relevant detailed information about them." (Citizens to Preserve the Ojai, supra, 176 Ca1.App.3d at p. 431.) 2. Irvine relied on a "significance threshold" for traffic designed to obscure the Project's contribution to congested roadways. Case law recognizes that an adopted level of service, or "LOS," standard may serve as a threshold of significance for CEQA purposes. (See Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 623-625.) Compliance with an LOS standard, however, does not relieve the agency of its duty to consider whether a significant impact may occur. (Mejia v. City 9f Los Angeles (2005) 130 Cal.App.4th 322, 342 [observing a public agency cannot apply a threshold of significance in a way that prevents consideration of other evidence showing that there nay be a significant effect]; see CEQA Guidelines, § 15064.7, subd. (b); Protect the Historic Imador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th.1099, 1109-1111.) In tt, ontext of cumulative impacts, the issue is not the relative contribution of the project as compared xwr.ixo�+wc.nwm II -21 - ''''�""'' OPENING BRIEF IN SUPPORT OF PETITION FOR .�su�;wwuswexio 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ww�ev, w ifs CgYtl 140.Sen310 Svamlo,G9581� to existing conditions, but whether "any additional amount" contributed by the project should be considered significant in view of the severity of the existing problem. (CBE, supra, 103 Cal.AppAth at pp. 119-120; Kings County Farm Bureau, supra, 221 Ca1.App.3d at p. 721 [rejecting cumulative air quality impact analysis for relying on discredited `ratio" theory].) In this case, Irvine adopted a significance threshold for cumulative traffic impacts that ignored these principles. Indeed, Irvine applied the same threshold of significance for both direct and cumulative impacts. (ALT 1339, 1345, 1351, 1365.) Irvine did identify intersections and roadways that would operate at a deficient LOS under cumulative conditions. At the second step of the analysis, however, Irvine dismissed the Project's contribution to traffic at these intersections and roadways because the Project would not cause a change in LOS that exceeded 0.02. (See, e.g., id at p. 1365.) In response to comments from the Cities, Irvine provides no explanation for using the same threshold of significance for both direct and cumulative impacts. (See ALT 6995- 96, 6999; see also id. at p. 7383; see also id at p. 7022 [internal memo dismissing concerns].) Moreover, by dismissing the Cities' concerns, Irvine failed to provide a "good faith, reasoned analysis" in response to these comments. (See CEQA Guidelines, § 15088, subd. (c); see Preservation Action Council v. City of San Jose (2006) 141 Cal.AppAth 1336, 1359-1360 [agency violated CEQA by failing to respond in good faith to proposed alternatives].) C. The SEIR does not Adequately Analyze Traffic Impacts and Irvine Erred by Failing to Adopt Necessary Traffic Mitigation Measures. An adequate EIR must be "prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences." (Guidelines, § 15151.) "An EIR is an informational document which will inform public agency decisionmakers and the public generally of the significant environmental effects of a project, identify possible ways to minimize these effects, and describe reasonable alternatives to the project." (CEQA Guidelines, § 15121.) The courts have repeatedly emphasized the importance of the public's role in the CEQA process; such participation supplies both vitality and legitimacy to the environmental review process. (See, e.g., Laurel Heights I, supra, 47 Ca1.3d at p. 392.) An EIR must "include detail -22 - OPENING BRIEFOJ SUPPORT OFPETIT/ON FOR WRIT OF MANDATE AND COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 261 27 M sufficient to enable those who did not participate in its preparation to understand and to consi,3 meaningfully the issues raised by the proposed project." (Id at p. 405.) "A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." (Kings County Farm Bureau, supra, 221 Cal.App.3d at p. 712 (citing Laurel Heights 1, supra, 47 Cal.3d at pp. 403-405).) As the Supreme Court recently elaborated on the CEQA's informational requirements, "[t]he data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project. "[1]nformation `scattered here and there in EIR appendices,' or a report `buried in an appendix,' is not a substitute for `a good faith reasoned analysis...."' (Vineyard Area Citizens, supra, 40 CalAth at p. 442 (quoting California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.AppAth 1219, 1239).) This duty includes the obligation to provide written responses to those who submit I comments on the EIR. (CEQA Guidelines, § 15088, subd. (c).) "Problems raised by the pub' and responsible experts require a good faith reasoned analysis in response. [Citation] The II requirement of a detailed analysis in response ensures that stubborn problems or serious criticism Iare not `swept under the rug. "' (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.AppAth 715, 722-723 (citing Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 357); see also see Preservation Action Council v. City of San Jose, supra, 141 Cal.AppAth at pp. 1359-1360.) In this case, Irvine had a heightened duty to consult with the Cities and to take seriously their comments concerning the Project's potentially traffic impacts. CEQA Guidelines, section 15086, subdivision (a)(5), requires a lead agency to consult with other public agencies with transportation facilities within ten miles of a proposed project that is of statewide, regional, or area -wide significance. Because the Project included an amendment of Irvine's General Plan, it is necessarily a project of statewide, regional, or area -wide significance (CEQA Guidelines,§ 15206, subd. (b)(1)), and Irvine had a duty to consult with other public agencies with nearby transportation facilities, including Newport Beach and Tustin. ro,..n,orus..;oag.e I -23 OPENING BRIEF IN SUPPORT OFPETITIONFORWRITOFMANDATEAND So®b,G9S{I. 2 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 M �v,ru �ssc�nd.wcsassla Sv�vgG 9581 Irvine's traffic analysis for the Project falls short of these requirements in the following six ,vays: (1) the SEIR's description and application of the TDR program is both flawed and impenetrable; (2) the traffic model's output is nonsensical, yet Irvine failed to respond to -omments pointing out this fact, (3) the traffic analysis relied on unstated assumptions regarding what traffic improvements will be constructed at some unspecified time in the future, (4) there is no evidence indicating that Irvine's traffic fee program will be adequate to construct the unidentified improvements, (5) there is no explanation whether the Project's contribution of fees to mitigate traffic impacts, if any, will be adequate, and (6) Irvine failed to impose measures adopted by Irvine as part of the IBC. 1. Irvine's explanation and application of the TDR program is impenetrable and flawed. While the Court does not have the duty of scrutinizing the validity of the conclusions expressed in the EM, it does have a duty to review the sufficiency of the report as an informative document. (See Environmental Defense Fund, Inc. v. Coastside County Water District (1972) 27 Ca1.App.3d 695, 705.) "[Disagreement] among experts does not make an EIR inadequate," but an EIR's impact analysis must provide the public and decisionmakers with information concerning the projects' potentially significant impacts. (See Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 805.) It is "not necessary that [an EIR's] analysis be so exhaustively detailed as to include every conceivable study or permutation of the data." (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Ca1.AppAth 645, 666 (citing CEQA Guidelines, § 15151).) However, "[a] clearly inadequate or unsupported study is entitled to no judicial deference." (Laurel Heights I, supra, 47 Cal.3d at p. 409, fn. 12.) In this case, Irvine relied on the application of its TDR program to conclude that the Project would not cause project -specific or cumulative traffic impacts. As noted above, under that program, the developer acquired the vehicle trips assigned by Irvine to another parcel in the IBC to compensate for the increased trips generated by the Project, so that the IBC as a whole would not experience a net increase in traffic. There were three problems, however, with how Irvine's traffic consultant applied this program to the Project. First, Irvine failed to provide an intelligible OPENWG BNEFIN 24 - OF PETITION FOR W&7 OF H H 18 19 20 21 22 23 24 25 26 27 28 description of the TDR program, as applied to the Project. (See ALT 1160, 1177-85, 1332-31 -- [DSEIR descriptions of Irvine's use of trip caps as a means to limit development within the IBC]; see id. at p. 5615 [FSEIR general responses regarding use of the TDR Program], 5693 [responses to Cities' comments regarding same].) For example, the DSEIR states that TDRs may be applied to various land use types, as driven by market forces, but also states TDRs are limited to nonresidential uses. (See id. at p. 1185.) Moreover, even though Irvine relies in part upon the TDR program to find the Project would have no significant air quality or traffic impacts (id. at pp. 1230, 1333), the SEIR does not describe the analysis of the TDR program in the IBC PEIR (the only analysis of the TDR program's impacts anywhere in the record). Nor does the SEIR acknowledge that Irvine found the development intensity that the TDR Program was designed to restrict would have unavoidable significant impacts, requiring an SOC. (IRV 4422-23.) Second, the transfer of trips from the two alternative "sending sites" under the TDR program — Campus Center and MetLife Apartments — was a chimera. The traffic study deducted the sending site trips from the traffic model in order to generate predicted traffic lev I I (See ALT 1333; see also id at p. 2769.) Yet, in subtracting these trips from the model, no corresponding reduction in trips occurred in the real world; rather, the TDR program merely served as a scheme to allow an increase in traffic at the Project site,, without a corresponding reduction elsewhere in actual traffic. 8 When this issue was brought to Irvine's attention, Irvine ignored it. (See id. at p. 5722-23, 5749 [Allergan's comments regarding same and Irvine's responses].) Nor, despite requests, did Irvine provide an accounting of how the TDR program (upon which Irvine's analysis relied) were monitored and enforced. Absent such an explanation, the TDR was merely an accounting gimmick, without bothering to show the actual accounting was performed. (Compare id at p. 5683 [Cities' comments regarding TDR program] with id at p. ° / In response to the Cities' comments concerning the TDR program, Irvine explained that the vehicle trips transferred through the TDR program were "for entitlement purposes only" and were not used to measure Project traffic impacts. (ALT 5705.) If that were true, then Irvine should have subtracted the transferred trips from the sending site in the traffic model. RFMY. TXOMtS.MWff vC I —25 M' w OPENING BRIEFQJSUPPORT OFPETTTIONFOR WRlT OFMANDATE AND COMPLAINT' ISS G,m1 Vuq Emu.11o E�.G 95E11 I 2 3 4 5 6 all 8 9 10 11 12 13 14 15 16 17 Mi 19 20 21 22 23 24 25 26 27 28 wwux. ur .sscpwwe,sr.no s�.,ussw 5615, 5705 [Irvine's responses to same].) This methodology is in conflict with Irvine's own Traffic Impact Analysis Guidelines, which require Irvine to measure the Project's impacts upon actual, physical conditions existing at the time the NOP is published. (See id at p. 8855.) CEQA Guidelines section 15125, subdivision (a), requires a lead agency to not only describe the physical environmental conditions as they exist at the time the NOP is published, but also requires the agency to evaluate the project's impacts upon the existing environment. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.AppAth 683, 706-07 (Woodward Park); see also 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2006) § 13.12 (attached at Exhibit B).) Woodward Park is on point. There, the Court explained why a similarly flawed analysis was invalid under CEQA: "CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan; it concerns itself with the impacts of the project on the environment, defined as the existing physical conditions in the affected area." (Woodward Park, supra, 150 Cal.AppAth at p. 709 (citing Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354).) 2. Irvine did not respond in good faith to comments pointing out anomalies in the traffic study's findings. The disparate results depicted in the 2010, 2025, and post -2025 noncumulative and. cumulative table summaries defy logic: these table summaries show approximately the same amount of traffic with noncumulative and cumulative conditions. (Compare, e.g., ALT 1341 with id. at p. 1343 [20 10 non -cumulative and 2010 cumulative with project conditions]; compare also id. at p. 1347 with id at p. 1349 [2025 non -cumulative and 2025 cumulative with project conditions]; compare also id at p. 1353 with id. at p. 1355 [post -2025 non -cumulative and post - 2025 cumulative with project conditions].) An explanation for cumulative and non -cumulative methodologies is buried in the traffic study scope of work attached to an appendix to the DSEIR, but this explanation fails to shed light on the disparate results of the study. (See id. at pp. 2769- 72.) These traffic impact analysis' results are impossible because Irvine has recently approved, and while the DSEIR was pending was considering applications for, numerous residential projects in the IBC — all of which contributed to cumulative traffic impacts. UPENING BRIEF IN SUPPORT OF 26 - )N FOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25' 26 27 28 ,tIIdY.,,iIX.l.lS. MNh .. ANMEY, W .ss cyw w0.suxlo SN�La.G9HN When the Cities commented on these curious results, Irvine responded that the traffic - model used to forecast project impacts considered General Plan buildout as well as pending projects that would require General Plan Amendments. (Compare ALT 5684 with 5705-06.) 9 Irvine's response, however, did not explain, for example, why the model's results for cumulative traffic conditions were similar to the results for non -cumulative conditions. 3. The traffic analysis improperly relied on unstated and unsupported assumptions regarding future construction of unidentified roadway improvements. Irvine's traffic impact analysis relied on the assumption that certain roadway and intersection improvements will be in place by the years 2010, 2025 and post -2025. The traffic study measured the Project's impacts upon facilities that do not exist, but are instead "envisioned II to be in place by the respective horizon years." (ALT 2349.) Neither the traffic study nor the IDSEIR identified the road improvements that were assumed to be in place at these three time frames, and thus omitted information essential to an adequate understanding of the Project's impacts. (See id. at p. 1329 [traffic impact analysis, stating "[f]acility types were taken from [Irvine] General Plan and the countywide Master Plan of Arterial Highways"]; see also id. at p. 12769 [original 2005 scope of work, which states consultant will assume, for the purpose of Ianalyzing all Project impacts, "future conditions ... based on the roadway network and land use assumptions envisioned to be in place by the interim timeframe"].) In omitting this information, Irvine ignored its own Traffic Study Guidelines. These Guidelines require that "[f]or interim conditions [i.e., year 2010], improvements funded by government agencies ... shall be identified. This list would include the nature of the improvement project, its extent, implementation schedule, and the agency or funding responsible '/ Irvine's response to comment 01-52 inaccurately states that the projects considered in the traffic analysis are those listed in DSEIR table 4-2, when in fact the projects considered are those listed in Attachments A and B to the traffic study scope of work. This latter list, dated July 19, 2005 (5 months before even the NOP publication date), includes fewer projects than Table 4-2, which, as explained above, was itself deficient. This may explain why the traffic levels reporte,' in the cumulative tables do not differ from the levels reported in the non -cumulative tables. OPENING BRIEF IN -27 - OFPET7770N FOR WRIT OFMANDATE AND COMPLAINT 10 11 12 13 14 15 16 17 is 15 2( 21 22 23 24 2` 2( 2' �uw>v,ur �sscgiww4s�.,sia $avmme.G95,1� ... A list shall be provided showing the location of such facilities or projects." (ALT 8856-57 I ,Traffic Impact Analysis Guidelines], italics added.) For buildout analysis (i.e., post -2025) "the currently approved General Plan Arterial Highway Designation ... and the County Master Plan of Arterial Highways ... shall be the basis for roadway improvement considered to be in place.... The network assumptions for the analysis years will be discussed in the report." (ld at p. 8857, italics added.) Yet, the DSEIR never provided this information. (See Endangered Habitats League v. County of Orange (2005) 131 Cal.AppAth 777, 784-85, 796 [agency violated CEQA by failing to use adopted traffic methodology to analyze project's impacts in EIR].) Irvine stated that the Project will contribute IBC traffic mitigation fees to help fund mitigation measures adopted in 1985 and 1992. (See ALT 5616, 5628.) Nothing in the record shows, however, that these fees will be used to construct the necessary improvements. (See id at p. 8473 [Development Agreement provision stating Irvine retains "sole and absolute discretion" concerning use of development fee funds].) Rather, the record indicates that numerous road Iimprovements identified in 1985 and 1992 have not been implemented, and at least one Irvine official has acknowledged that Irvine lacks funds to construct them. (See DVD 2C-01-000463 [e - I mail from Marty Bryant, Irvine Deputy Director of Public Works, stating "the [IBC Fees] are Iinadequate to cover the cost of all the mitigations and the mitigations themselves, while they II appeared reasonable in 1992, may not be adequate today"].) In view of the vagueness of this analysis, the Cities' traffic consultant requested that Irvine identify "[p]lanned infrastructure II improvements" in its traffic study and DSEIR, but Irvine dismissed this comment and numerous I I others. (See ALT 7001 [comment letter from W -Trans]; see ALT 7383 [staff report to Irvine City ICouncil recommending "no revisions to the traffic analysis" in response to W -Trans' comments].) "A project's contribution is less than cumulatively considerable if the project is required to implement or fund its fair share of a mitigation measure or measures designed to alleviate the cumulative impact. The Lead Agency shall identify facts and analysis supporting its conclusion that the contribution will be rendered less than cumulatively considerable." (CEQA Guidelines, § 15130, subd. (a)(3); see also Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.AppAth 99,140 (Save Our Peninsula).) "[E]ven where a developer's UPENINO BRIEFINSUPPORT OF -28 - YONFOR MANDATE AND COMPLAIM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AtMT.,HOMN. MOOSEm MWIET, LIP �SSCgiW Ay9,5rwe210 Sa ye. CA MU 11 contribution to roadway improvements is reasonable, a fee program is insufficient mitigation - 11 where, even with that contribution, a [lead agency] will not have sufficient funds to mitigate effects on traffic." (Endangered Habitats League v. County of Orange, supra; 131 Cal.AppAth at p. 785 (citing Napa Citizens for Honest Gov't v. Napa County Bd of Supervisors (2001) 91 Cal.AppAth 342, 364 (Napa Citizens).) "CEQA requires that feasible mitigation measures actually be implemented as a condition of development, and not merely be adopted and then neglected or disregarded." (Anderson First Coalition v. City of Anderson (2005) 130 Cal.AppAth 1173, 1186-87 (Anderson First) (citing Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Ca1.App.4th 1252, 1260-1261 (Federation Hillside).) "When future traffic congestion will result from the cumulative impact of several projects, cumulative traffic mitigation measures for a single project (that is one of the several projects) may be deemed sufficient if those measures are based on a reasonable plan of actual mitigation that the relevant agency commits itself to implementing." (Anderson First, supra, 130 Cal.App.4th at pp. 1186-1187 (citing Napa Citizens, supra, 91 Ca1.App.4th at pp. 363-364, Save Our Peninsula, supra, 87 Cal.AppAth a, 141).) In Anderson First, the Court found that the city improperly assumed that certain roadway improvements would be in place when concluding that the project in question would not have any significant cumulative traffic impacts. (Id. at p. 1189 [cumulative traffic impacts analysis held inadequate because agency relied on uncertain funding and therefore had insufficient evidence to :onclude that necessary road improvements would, in fact, be built].) Here, too, the SEIR's traffic impact analysis concludes that the Project will have no significant impacts. This conclusion, however, is based, at least in part (though how much is impossible to tell) on the assumption that numerous unspecified IBC road improvements called for in 1985 and 1992 will be in place. Because many of these mitigation measures have not been implemented, and there is no evidence to show Irvine has the funding and commitment to implement them, Irvine could not rely on these unspecified improvements to conclude the Project's traffic impacts would be mitigated. A lead agency's adopted mitigation measures must be enforceable. (See Pub. Resource ode 21081.6, subd. (b).) While CEQA does not expressly require a public agency to find that 29 - -•• •••••+.�rcicr "I UrYURT OFFETMONFOR AND COMPLALNT 2 11 f, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xnr.rxorus.,.�H�e ISSGpW Wp,SaYe]IO Soesm.G 9H4 mitigation measures adopted for a project are feasible or that they will be implemented, CEQA does require the agency to find, based on substantial evidence, that the mitigation measures are "required in, or incorporated into, the project"; ... or that mitigation is infeasible and overriding considerations outweigh the significant environmental effects. [Citations] In addition, the agency "shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures" [Citation] and must adopt a monitoring program to ensure that the mitigation measures are implemented [Citation]. The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. [Citation] (Federation of Hillside, supra, 83 Cal.AppAth at pp. 1260-1261, italics in original; see also Vineyard Area Citizens, supra, 40 CalAth at p. 444; Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.AppAth 1491, 1510 [agency violated CEQA by issuing demolition permits without requiring compliance with adopted mitigation measures addressing historic character of buildings to be demolished].) Here, Irvine was required to ensure that "measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures." (Pub. Resources Code, § 21081.6, subd. (b).) Deferral of mitigation is only permissible where the adopted mitigation measure both (1) commits the agency to realistic criterion that will ensure the mitigation of the significant effect, and (2) disallows the occurrence of physical changes to the environment unless the criterion is or will be satisfied. (See CEQA Guidelines, § 15126.4, subd. (a)(1)(B); see also Endangered Habitats League, supra, 131 Cal.AppAth at pp. 793-794.) While CEQA does not require that the EIR set forth a time -specific schedule for the lead agency to complete specified road improvements, it does require that the agency have a reasonable plan for mitigation. (Save Our Peninsula, supra, 87 Cal.AppAth at p. 135 (citing Sacramento Old City Assn. v. City Council (1991) 229 Cal.App3d 1011 (SOCA)); see also Anderson First, supra, 130 Cal.App.4th at p. 1188.) In Save Our Peninsula, the Court upheld a county's program of in - lieu fees for traffic mitigation because the project's EIR identified the improvements that would be funded, and the approximate timeframe for their completion. (87 CaLApp.4th at pp. 139-141.) Here, by contrast, the Project's SEIR does not identify the specific "problem areas" in the vicinity of the Project that will require timely implementation of traffic mitigation measures. -30 - vrnNiNci URIEr IN SUPPORT OFFETMONFOR WRirOFMANDATE AND 2 0 6 7 8 9 10 11 12 13 14 15 16 17 18 19 FM Irvine also failed to incorporate traffic mitigation measures from the IBC PEIR, even though Irvine tiered from this prior EIR and explicitly relied on implementation of these mitigation measures when concluding that the Project will have no significant traffic impacts. In response to a comment from Tustin on this issue, Irvine stated the developer would be required to pay IBC Fees. (ALT 5628.) This claim, however, appears disingenuous at best because it is not evidenced by: (a) the Project's adopted mitigation measures, which do not impose any traffic mitigation measures, much less measures requiring payment of IBC Fees (see id. at pp. 8121-38), (b) the conditions of approval for the tentative tract map (see id. at p. 8165), or (c) the approved development agreement, which does not require any of the imposed "development fees" to be spent on IBC roadway improvements. (Id. at pp. 8473-74.) D. The SEIR Does Not Adequately Analyze or Mitigate the Project's Parks Impacts. 1. The SEIR's parks impacts analysis is inadequate. a. The cumulative impact analysis is perfunctory and inaccurate. The DSEIR's discussion of cumulative impacts does not acknowledge the lack of part I within the IBC, nor does the DSEIR discuss the cumulative effects that past residential projects within the IBC have had upon recreation resources in Irvine and in neighboring areas, including I Newport Beach and Tustin. (ALT 1319-24.) Instead, the DSEIR includes the conclusory, Iunsupported, and indeed factually inaccurate statement: "new parklands and trails are developed Ias residential development occurs." (Id. at p. 1324.) Irvine's failure to consider the impacts of Ipast projects on park facilities in and around the IBC violated CEQA's obligation to analyze cumulative impacts. (See CEQA Guidelines,§ 15355, subd. (b); see also Environmental I Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 624-625 [EIR must consider cumulative effects of past projects].) b. The analysis fails to consider extra -jurisdictional impacts. Here, Irvine did not even attempt to analyze and mitigate the Project's direct and cumulative impacts to parks and recreation facilities in Newport Beach and Tustin, even though the Project, together with other pending and approved projects, would be located only a few Iblocks from Tustin's border. (ALT 1181, 1323-24.) In response to the Cities' comments BRIEFQVSUPPORT OF -31 - FOR WRIT OFMANDATE AND COMPLAINT 21 22 23 24 25 26 27 28 ➢FHY.'111CMA9.MWgN eumxr.ur .sscmwr.gsmao SvmgG95f1. Irvine also failed to incorporate traffic mitigation measures from the IBC PEIR, even though Irvine tiered from this prior EIR and explicitly relied on implementation of these mitigation measures when concluding that the Project will have no significant traffic impacts. In response to a comment from Tustin on this issue, Irvine stated the developer would be required to pay IBC Fees. (ALT 5628.) This claim, however, appears disingenuous at best because it is not evidenced by: (a) the Project's adopted mitigation measures, which do not impose any traffic mitigation measures, much less measures requiring payment of IBC Fees (see id. at pp. 8121-38), (b) the conditions of approval for the tentative tract map (see id. at p. 8165), or (c) the approved development agreement, which does not require any of the imposed "development fees" to be spent on IBC roadway improvements. (Id. at pp. 8473-74.) D. The SEIR Does Not Adequately Analyze or Mitigate the Project's Parks Impacts. 1. The SEIR's parks impacts analysis is inadequate. a. The cumulative impact analysis is perfunctory and inaccurate. The DSEIR's discussion of cumulative impacts does not acknowledge the lack of part I within the IBC, nor does the DSEIR discuss the cumulative effects that past residential projects within the IBC have had upon recreation resources in Irvine and in neighboring areas, including I Newport Beach and Tustin. (ALT 1319-24.) Instead, the DSEIR includes the conclusory, Iunsupported, and indeed factually inaccurate statement: "new parklands and trails are developed Ias residential development occurs." (Id. at p. 1324.) Irvine's failure to consider the impacts of Ipast projects on park facilities in and around the IBC violated CEQA's obligation to analyze cumulative impacts. (See CEQA Guidelines,§ 15355, subd. (b); see also Environmental I Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 624-625 [EIR must consider cumulative effects of past projects].) b. The analysis fails to consider extra -jurisdictional impacts. Here, Irvine did not even attempt to analyze and mitigate the Project's direct and cumulative impacts to parks and recreation facilities in Newport Beach and Tustin, even though the Project, together with other pending and approved projects, would be located only a few Iblocks from Tustin's border. (ALT 1181, 1323-24.) In response to the Cities' comments BRIEFQVSUPPORT OF -31 - FOR WRIT OFMANDATE AND COMPLAINT F1 3 6i 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 2E ,�5r.aweevi,wwosEr 455 C*Y.LLP I apaw Inl.aia Svum.,G 9561. =ceming the Project's potentially significant extra -jurisdictional impacts on parks, Irvine simply ,tated that compliance with Irvine's park dedication requirements will adequately mitigate the Project's impacts to parks, reducing the Project's impacts to less than significant. (See id at pp. 5682-83, 5704-05 [Newport Beach comments and Irvine responses].) This statement did not provide the good faith response required to address this issue. (CEQA Guidelines, § 15088, subd. (c).) For example, Irvine did not address the intensity with which its existing parks facilities are slready used without the Project, nor did Irvine acknowledge the demands that will be placed on such facilities by the numerous other approved and pending projects in the IBC. 2. The mitigation measures for parks impacts are inadequate. a. Irvine does not require mitigation for extra -jurisdictional impacts to parks and recreation. The California Supreme Court recently emphasized that a lead agency cannot side-step its duty to avoid significant environmental effects of a project, simply because those effects occur outside the agency's jurisdiction. (City of Marina v. Bd. of Trustees of Cal. State Univ. (2006) 39 CalAth 341 (City of Marina).) In City of Marina, the Court ruled the respondent agency had abused its discretion in refusing to mitigate the off-site traffic impacts of the project (there, expansion of the Cal State Monterey campus) stating: Trustees are not thereby excused from the duty to mitigate or avoid [the proposed university]'s off -campus effects on traffic or wastewater management, because CEQA requires a public agency to mitigate or avoid its projects' significant effects not just on the agency's own property but Son the environment' [citation], with `environment' being defined for these purposes as `the physical conditions which exist within the area which will be affected by a proposed project' [citation]. (City of Marina, supra, 39 CalAth at pp. 359-360 (quoting Pub. Resources Code, §§ 21060.5, 21002. 1, subd. (b)) (italics in original).) In this case, the mitigation measures purportedly adopted for impacts to Irvine's parks include on-site private recreation amenities and, although the DSEIR does not specifically identify this exaction as a mitigation measure, payment of in -lieu fees for an as yet unplanned community park in the IBC. (ALT 1324 [DSEIR's discussion of mitigation for parks impacts].) The on-site private recreational amenities, however, are inadequate as mitigation for neighborhood park impacts because the total area for on-site amenities is less than one third of an acre in size, as -32 - JW SUPPORT OF PETITION FOR WRIT OF MANDATE AND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 atarc.t�w�nwc��e .u,n.tY. cv �4G95tN required by Irvine's General Plan. (See id. at pp. 955-56; see also id at p. 8719 [General Plar- Table K-11.) Moreover, the in -lieu fees are inadequate to mitigate community parks impacts because Irvine has not demonstrated that (1) there is land available to acquire and construct such a park, and (2) the exacted fees will be adequate to fund the Project's share of the parkland's purchase and development costs. (Anderson First, supra, 130 Cal.AppAth at pp. 1186-1187 [payment of fees insufficient to conclude traffic impact would be mitigated].) Because these measures are inadequate to mitigate the Project's recreation impacts within Irvine, the inevitable but unanalyzed impacts to parks in Newport Beach and Tustin will be exacerbated. b. The claimed mitigation measures for the Project's impacts to parks are not enforceable. A lead agency may adopt a menu of potential mitigation measures, so long as the agency commits to achieving a specific performance standard. (SOCA, supra, 229 Cal.App.3d at pp. 1028-1029.) Here, unlike the mitigation measures that were upheld in SOCA, Irvine adopted a mitigation measure for the Project's parks impacts that is incomplete and unenforceable. Specifically, Irvine stated in the DSEIR's recreation impacts analysis that the Project's impacts to parks would be mitigated, at least in part, through the Project's Park Plan. (See ALT 1324.) The Project's Park Plan, in turn, requires payment of in -lieu fees, but the amount of in lieu fees that will be exacted is inconsistently reported and Irvine provides no explanation for these discrepancies. (Compare id at p. 972 with id at p. 6986.) Moreover; Irvine did not include the payment of park in -lieu fees in the list of enforceable mitigation measures adopted for the Project. (See ALT 8138 [recreation mitigation measure omitting any reference to payment of in lieu fees].) Thus, Irvine failed to make the payment of in lieu fees enforceable as required by CEQA. (See Lincoln Place Tenants Association v. City of Los Angeles, supra, 130 Cal.AppAth at p.1508 [under CEQA, agency has duty to ensure that mitigation measures will actually be implemented].) C. Irvine's conclusion that the Project will not have significant parks and recreation impacts is based upon improperly deferred mitigation. CEQA requires that mitigation measures "be `roughly proportional' to the impacts of the )roject " (CEQA Guidelines, § 15126.4, subd. (a)(4)(B) (citing Dolan v. City of Tigard (1994) 4 UPENING -33 - IN SUPPORT OFPETITIONFOR WRIT OF MANDATE AND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15i 16 17 18 19 20 21 22, 23 24 25 26 27 28 BFNY, INOMA5.3.100.g m 3dW1EY.� �fS GpW Wgyge3�0 Svr�m.G951N U.S. 374).) Furthermore, the approving agency has the burden to show that "it has considered the identified means of lessening or avoiding the project's significant effects." (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1035; Federation of Hillside, supra, 83 Cal.AppAth at p. 1260.) A commitment to pay in -lieu fees without any evidence that mitigation will actually occur is inadequate. (Kings County Farm Bureau, supra, 221 Cal.App.3d at p. 727 [EIR inadequate in part because it concluded groundwater impacts were insignificant based on an inadequate mitigation measure].) As the Anderson First Court observed, "[a] single project's contribution to a cumulative impact is deemed less than significant if the project is required to implement or fund its `fair share' of a mitigation measure designed to alleviate the cumulative impact." (130 Cal.AppAth at p. 1188 (citing Guidelines, § 15130, subd. (a)(3)).) Here, Irvine assumed that compliance with its parks dedication requirements, including the payment of the in -lieu fees exacted for community park acquisition and development, will fully mitigate the Project's park impacts. (See ALT 1324.) The DSEIR describes the mitigation measures in only vague and general terms and does not provide any analysis concerning whether the amount of in lieu fees called for in the Park Plan are adequate to mitigate the Project's impacts. (See ibid.) Irvine did not demonstrate that suitable parkland property in the vicinity of the Project is or will be available for purchase. Thus, Irvine's approach here is analogous to Kings County's reliance on an elusive water supply for to supply a groundwater recharge program, a mitigation measure that the Court found inadequate in Kings County Farm Bureau. (See 221 Cal.App.3d at p. 728.) The IBC has always lacked public parks. (See, e.g., IRV 3561; see also 2C-12-001286 [Irvine's screencheck comments for another IBC projects regarding lack of parks in IBC].) Irvine has approved numerous residential projects in recent years and has exacted in -lieu fees for parks impacts, but Irvine has not created any public parkland in the IBC with these funds. (See, e.g., DVD 2C-01-001219; see also DVD* B-00-000208 [Draft IBC Vision Plan, reporting no existing IBC parks facilities].) Irvine continues to rely on existing parks in areas outside the IBC to serve IBC residents, but has not demonstrated that the existing facilities are adequate to meet the needs of current IBC residents and the residents of approved projects. (See ALT 5701-02.) -34 - UPENING BRIEF N SUPPORT OFPETMON FOR WRIT OFMANDATEAND R 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, even if Irvine can purchase an adequate site for a community park in the Project's vicinity, the amount of in lieu fees exacted are not adequate because Irvine has severely underestimated the anticipated number of Project residents. Irvine's park dedication requirements for this and previous projects were based on an estimated number of Project residents. (See ALT 1323 [DSEIR recreation impact analysis stating park dedication requirements were based upon a PGF of 1.3 residents per unit]; see also DVD 2C-15-000265-69 [Irvine resolution updating park dedication standards].) Had Irvine used the results of the recent survey it commissioned to calculate the number of Project residents, Irvine would have estimated 316 Project residents rather than 221. (Compare ibid. with DVD* B-00-002597 [September 2005 IBC Survey estimate concluding IBC residences average 1.86 residents per unit]; see also DVD* B-00-002595 [Irvine IBC website statement: "results of [survey] will be used in the City's IBC Planning efforts to address issues such as recreational opportunities...."]; see also ALT 7033-34 [Allergan letter describing 2005 IBC survey].) Irvine never explained why it continues to use the PGF of 1.3 residents per unit, rather than the more recent estimate, when calculating park in lieu fees. V. CONCLUSION Irvine has embarked on transforming the IBC into a mixed-use, residential area. Whether to allow such a transformation is, ultimately, a policy issue for the City of Irvine to decide. At the same time, under CEQA, Irvine has an obligation to perform a candid assessment of the impacts of taking this path, and to identify and adopt feasible measures to address the effects of this transformation, both within Irvine and in neighboring jurisdictions like Newport Beach and Tustin. Unfortunately, Irvine's analysis of the 2851 Alton project, like its analysis of other residential projects in the IBC, obscures rather than enlightens. Petitioners respectfully request that the Court grant the petitior> Dated: November 12, 2007 REMY, THOMAS, MOOSE AND MANLEY, LLP By: wt *Jn Whitman F. Manley anW.Holder - Counsel for Petitioners/Plain CITY OF NEWPORT BEACH and CITY OF TUSTIN xeev.*sax+�s.waos��e II -35 - "'""�''''" OPEV/NG BRfEFIN SOPPORTOFPETITfONFOR WRIT OFMANDATE AND COMPLAINT .ss apw MySuxvo �.emm,G95t1. (000I6763.DOC; 3) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24' 25 26 27 28 aea,r, mmeu ncau:e MWfEY.L1Y .uc.puiwu. a.:a,o a�.w u+sai. OFFICE OF THE CIIY ATTORNEY CIIY OF NEWPORI BEACH ROBIN L. CLAUSON, 123326 AARON.0 HARP,190665 3300 Newport Blvd. Newport Beach, California 92658-8915 Telephone:(949) 644-3131 Facsimile: (949) 72.3-3519 E-mail: rclauson@city newport-beach.ca.ns ahazp@city.newport-beach.ca.us Attorneys for Petitioner/Plaintiff CIIY OF NEWPORT BEACH Exempt from Filing Fees Puisuantto Government Code Section 6103 (ATTORNEYS CONTINUED ON NEXT PAGE) SUPERIOR COURI FOR IHE STATE OF CALIFORNIA COUNTY OF ORANGE— CENTRAL JUSTICE CENTER CIIY OF NEWPORT BEACH and CITY OF IUSIIN, Petitioners and Plaintiffs, V.. CIIY OF IRVINE, CIIY COUNCIL OF IHE CIIY OF IRVINE, and DOES I -X, Respondents and Defendants.. STARPOINTE VENTURES, WESTMILLENUM HOMES, and DOES XI -L, inclusive, Real Patties in Interest. CASE NO.07CCO1264 AMENDED PETITIONERS' OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ASSIGNED FOR ALL PURPOSES: Hon, Stephen T. Sundvold Department: CX105 Hearing Date: .Jan 22, 2008 Iime: 2:00 p.m. Filing Date of Action: April 26, 2007 FETITIONERS' VPENING 13FUEF IN JUPPORT OF FETITION FOR WRIT OF MANDATE AND i 1 2 3. 4 5 6 7 8 9 ]0 1] 12 1.3 14 15 16 17 18 19 20 21 22 2:3 24 25 26 27 28 esna.m®ns,ax�r NAM.F,Y, VP 'sw�° mu'sas�ae (AITORNEYS FOR PETIIIONERS/PLAINTIFFS CONTINUED) WOODRUFF SPRADLIN & SMART, P..C_ DOUGLAS C. HOLLAND, 069014 701 S. Parker Street, Suite 8000 Orange, California 92868-4760 Telephone:(714) 558-7000 Facsimile: (714) 835-7787 E-mail: dholland@wws-law..com Attorneys for Petitioner/Plaintiff CITY OF TUSIIN REMY, THOMAS, MOOSE and MANLEY, LLP WHITMAN F. MANLEY, 130972 SABRINA V.. IELLER, 215759 JASON W. HOLDER, 232402 455 Capitol Mall, Suite 210 Sacramento, California 95814 Ielephone:(916) 443-2745 Facsimile: (916) 443-9017 E-mail: wmanley@rhnmlaw.com stellei@itmnlaw.com jholder@rtmmlaw com Attorneys for Petitioners/Plaintif£s CITY OF NEWPORT BEACH and CITY OF IUSTIN PETMON FOR WRrT OF MANDATE AND COMPL A1NT 1 TABLE OF CONTENTS Page(s) 2 Table of Contents.,.... ...........................................•.,........... 3 Table of'Authoiities.-._ - _........,,..-......_....,,,........ii 4 I. rNTRODUCIION...,., 5 11. STATEMENT OF FACTS 6 A. Transformation of the IBC Area: fiom Primarily Industrial Use to Intensified Residential Use......_. B. Project Description...,...., . ..... 6 C. Environmental Review for the Project.., - .....7 1 Traffic impact analysis... ... .......... ,8 10 2. Parks and recreation impact analysis. .......... ...,...,....-.........._...-...•...9 11 D Project Approval....,.... ... ..... . . ....... 10 12 111.. STANDARD AND SCOPE OF REVIEW ,.....:.................• Al 13 IV. ...... . . .... ........... A2 14 A. hvine Violated CEQA by Tiering from the IBC PEIR and by Improperly 15 Incorporating by Reference the IBC PEIR... _ . ........ 12 16 L The IBC PEIR is stale and cannot be relied upon in the analysis of the Project's potentially significant environmental effects.:_... _14 17 2. The Project is inconsistent with the project analyzed in the IBC is PEIR_ 19 3. The SEIR inapropetly.incoipoiated by reference the MC PEIR, 16 20 4. The SEIR ignores unavoidable significant impacts identified in the IBC PEIR .. ........... ..... .. 21 B. The City Violated CEQA by Failing to Adequately Disclose the Project's 22 Cumulative Impacts...... .. ..... .18 23 L Irvine's assumptions regarding cumulative impacts failed to consider all past, present and probable 24. 1 Irvine relied on a "significance threshold" for traffic designed to 25 obscure the Project's contribution to congested roadways... 26 C, The SEIR does not Adequately Analyze Traffic Impacts and Irvine Ened by Failing to Adopt Necessary Traffic Mitigation Measures ...... .22 27 28 OPENING BRIEF IN FOR WfUT OF m on To,nw 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City's explanation and application of the TDR program is impenetrable and flawed._• . .... ... _24 2. Irvine did not respond in good faith to comments pointing out anomalies in the traffic study's findings.. _26 3., The traffic analysis improperly relied on unstated and unsupported assumptions regarding future construction of unidentified roadway improvements D.. The SEIR does not Adequately Analyze or Mitigate the Project's Pinks impacts ---- L SEIRs parks impacts analysis is inadequate a- Cumulative impact analysis is perfunctory and inaccurate.., b. Impact analysis fails to consider• extra -jurisdictional 2.. The mitigation measures for parks impacts are inadequate.............................32 a Irvine does not require mitigation for extra -jurisdictional impacts to parks and recreation,. b. The claimed mitigation measures for the Project's impacts to parks are not enforceable-.. ..._ - _ .......... .33 C. Irvine's conclusion that the Project will not have significant parks and recreation impacts is based upon improperly deferred mitigation.._..,............._ V... CONCLUSION. .35 IN U FOR WRIT OF MANDATE 11 ©I TABLE OF AUTHORITIES California Cases Page(s) 3 Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners l 4 (1993) 18 Cal,App.4th 729................................................................................... ....................................1 5 Anderson Fi, st Coalition Y, City of Anderson 30, 31,34 (2005) 130 Cal. App. 4th 1173 ............. _,..............................._.. ... _29, 6 Bakersfield Citizens for Local Control v. City of Bakersfield 20 7 (2004) 124 CaLApp.4th 1184 ...................................._.........,......,.......,.....,....,.............._..._. 8 Bowman v, City of Petaluma (1986)185 Cal.App.3d 1065-- .................. ...... ........................_... _....,.............. ...........................15 9 California Oak Foundation v. City of Santa Clarita 10 (2005)133 CaLApp.4th 1219 _...:........,.......... ,..................... ................................................................,.....23 11 Citizens to Preserve the Ojai v. County of'Ventura 21 (1985) 176 Cal.App..3d 421 ......,..,........._.,....,....,................................,..._..,....._........,..... _... ............ —.19,21 12 Cityof Marina v. Bd of'Trustees of Cal State Univ, 32 13 (2006) 39 Ca1.4th 341 ............. ........... ,......._.....,._..........., ...............,_..................,.,.,...,,......... ........ 14 City of Rancho Palos Verdes v. City Council (1976) 59 Cal.App.3d 864 ... _....... , _.......... ...................._.....,...._........_.............................................. _.....11 15 Cleary v. County of Stanislaus 16 (1 1)118 Ca1.App..3d 348........,......:....:._..............._........................_..,.............,................................., .....2.3 17 Communities for a Better Envir onment v California Resources Agency 20, 22 (2002)103 Ca1.AppAth 98..,..........,...............................................,....... _ .., .........._......,.,.....17,19, 18 Del MarTerrace Conservancy, Inc v. City Council 19 .......................... (1992) 10 Ca1.AppAth 712 .. _.............. _............. _..._.............,............................., ......... _......11 20 Endangered Habitats League Y. County of Orange (2005)131 CalApp.4th 777......................_.............................................,.............,...........,..........,..,.,........._...29 21 County Water District ense Inc v Coastside Coun 22 �d, ( 972) 27 Cal pp 3d 69- .. „24, 30 23 Environmental Planning & Information Council v County of El Dorado (1982)131 Cal -App 3d 350 ..................., ...._.,.....,....,............._......................................,.............._...26 24 Environmental Protection Information Center v. Johnson 25 (1985)170Ca1.App3d604....... ........................................................................ .... ...._.._.._..,............ ..........31 26 Fall River Wild Tr out Foundation v. County of Shasta (1999) 70 Cal. App, 4th 482. ........... .... ..... 27 28 iii OPENING BRIEF IN SUPPORT OF PETITION FOR W RFT OF esMr.sxa+.s ww�.n II v�v.emw.,.ses„� suwEr. ur ssupwu,v.sweno s�mamw 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Cases (cont.) Page(s) Federation of Hillside and Canyon Associations v City of Los Angeles (2000) 83 Cal App -4th 1252 29,30,34 Gentry v. City of Mur? feta (1995) 36 Ca1..App.4th . . ..... 13 Ka? Is on v. City of Cmn a? illo (1980) 100 Cal App.3d 789 .. .... . ... --24 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal App.3d 692....-.- -.12,19,22,23, 33,34 Laurel Heights Improvement Assn v Regents ofthe University of California (1988) 47 Cal.3d ...... .. -.11,23,24 Los Angeles Unified School Dist, v City of Los Angeles (1997) 58 Cal.App.4th 1019 ...18, 19 Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal-AppAth 1385 .... ...... .15 Mejia v City of Los Angeles (2005) 130 Cal.App.Ath 322 11, 22 Napa Citizens for Honest Gov't v. Napa County Bd. of Supervisors (2001) 91 Cal.App 4th 342 ... .....29 Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal App..4th 268...-:-..-..'. -.-.13 Protect the Historic Amador Waterways v. Amador- Water Agency (2004) 116Cal.,App4th ...............................22 Protect Out Water v. County of Merced (2003) 110Ca1.App.,4th362 . .. ................ . San Bernardino Valley Audubon Soc iety, Inc. v County of San Bernardino (1984) 155 Cal.App, 3d 738 .. ..... .. .. ... ..... -...34 San Franciscans for Reasonable Growth v. City and County of San Francisco (1994) 151 Cal App.3d 61 .... ... .... ..... .19,20,21 San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal. App. 4th 645...-........ ........ ...... .24 Sacramento Old City Association v City Council ofSacramento (1991) 229 Cal. App.. 3d 1011 ... .... ...._... ....,_.............,_.....30, 3.3 Santa Clar ita Organizationfor Planning the Environment v County of Los Angeles (2003)106Ca1App-4th715............................................ ......,23 iv IN SUPPORT OF PETITION FOR Um 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18, 19 20 21 22 23 24 25 26 27 2E California Cases (tout) Page(s) >ave Our Neighborhood v. Lishman 2006) 140 Cal. App 4th 1288 ..................,..............................._..._....................,......,.,..........................15, 29 iave Our Peninsula Committee v, Monte? ey County Rd of Supervisors .2001) 87 Cal, App. 4th 99 :- - - .- - - - - - - - - - - — -- - -28,30 3chaeffer Land Dust v. San Jose City Council :1989)215CaI.App-3d6I2.-,-..- ....... ---21 Sierra Club v. County of Sonoma (190'2)6 Cal Ann 4th 1307 .. - - .. - - I. .... 13, 15, 16 Sierra Club v State Board of Forestry (1994)7CaI-.4th12I5---...................................................................................................... Village Laguna of Laguna Reach, Inc v. Board of Supervisors (1982) 134 Cal.App.3d 1022 I J �';'; " rih, of Rancho Cordova 34 Vineyard Area zens . (2007) 40 CalAth 412 ......... ... ....... — --.12,14,16,17, 23, 30 Whitman v. Board q(Supervisors .18 (1979) 88 Ca1.App.3d 397 Woodward Park Homeowners Assn., Inc v City of Fresno (2007) 150 Cal., App. 4th 683 26 Federal Cases Dolan v. City of Tigard ..... ... . ........ . 33 (1994) 483 U.& 374.... Natural Resources Defense Council v Callaway 28 (1075) 524 F 2d 79 .... .. FOR WRIT OF I 21 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 26 27 28 California Statutes Code of Civil Procedure Section Government Code Section 65301.,5.. Public Resources Code Section 21000 et seq- . .....,,,,,,.-,1 21002.1, subd., (b)., ----32 21005, subd.. (a).. .. .... ... .. .. . ... .. 21060.5 .................. ........................... 32 21081.,6, subd. (b) .......................... .... ... .. 29,30 21166 21167, subd ............_..,.15 21168 11,15 California Rmulations Cal. Code of Regulations, title 14, div, 6, ch. 3 "CEQA Guidelines" Section 15000 et seq. ....... ............ 15064, subd. (h)(1).....--,....-. ....... ......19 150647,subd..(b),,.,-...,.,,..... -22 15086, subd. (a)(5) ..---.23 15088-15088.5...._.,....... ................_.,...2 15088, subd. (c).. .... ....... -22,23,32 15091-15093 12 15125, subd. (a)- ................. -_--25 15126 4, subd- (a)(1)(B).......................,.....................,....30' ... 30- 15126.4, subd. (a)(2)........,....._...:..........................-- .34 15126,4,subd.(a)(4)(B)-..,.,..,..,-..,,.,. ...... . ..... . .. 33 15130, subd, ......... ,.....28, 34 15130, (b)-.- ... ... ...... ---.-.20 15150,subd.(c)..........._......-_.:,.......... ..,...............,.16 15151 .. . ... . ..... .... ... .. . ---- --...--22'23'24 15152, subd. (f)(3)(c) .......... . ... .... . ....17 15152, subd,. (g) .......,.... _.., ... .. ..............................-......,..16 15162 13 15168, subd.. (c)(5) 15 15206, subd. (b)(1).............._........... .24 15355.. —..".18 15355, subd. 18,31 Miscellanous I Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont,Ed.Bm 2003) § 114- ........................15 1 Kostka & Zischke, Practice Under the Cal, Environmental Quality Act (Cont.Ed.Bar 2006) § 13.12 - Vi IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND 2 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xurc,niaus rexrxme MM1EY. U P tS,CCW:dW.,ur iN� 9mnmo.G93,1< I. Petitioners Cities of Newport Beach and Iustin (referred to individually as "Newport 3each" and "Iustin", respectively, and collectively as "Petitioners" or "Cities") filed this lawsuit oecause the Respondents City of Irvine, et al ("Respondents" or "Irvine") have ignored central obligations under, the California Environmental Quality Act ("CEQA") (Pub. Resources Code, § !1000 et seq..) As the record shows, the Cities have for years urged Irvine to take seriously these >bligations, but Irvine has paid little heed.. The Cities regret resorting to judicial intervention to esolve important issues that ought to be resolved though cooperation among neighbors.. This case involves the environmental review process carried out by Irvine for the Martin Street residential project ("Project") proposed by Real Parties in Interest Starpointe Ventures and West Millenium Homes ("Real Parties").. the Project is a residential development located in the Irvine Business Complex ("IBC"), an area within Irvine that lies directly between Newport Beach and Tustin. From the outset, Petitioners stated that Irvine had an obligation to be candid about the Project's environmental impacts, and to identify and adopt feasible mitigation measures to address those impacts. Instead of'responding to the concems expressed by Petitioners and other concerned stakeholders, Irvine insisted on defending a process designed to obscure the Project's true impacts. In particular, Irvine prepared a Subsequent Environmental Impact Report ("SEIR") that falls well short of meeting the analytical and informational requirements of CEQA.> Ihus, Petitioners ask the Court to issue a Peremptory Writ of'Mandate requiring Irvine to prepare an adequate independent EIR that accurately analyzes and mitigates the Project's direct, indirect, and cumulative environmental impacts. I / the Petitioners have prepared this briefin coordination with Allergan, Inc, ("Allergan"), the Petitioner in the consolidated case (Case No 07CC01268), and the brief reflects, to some degree, the two parties' division of the arguments between themselves.. The Petitioners agree with Allergan's arguments, and hereby incorporate these arguments by reference herein. IN SUPPORT OF PE MON FOR WRrr OF MANDATE AND PI'v,pf mRejd,Ml'm 1 2 3 4 5 I A. 01 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2'7 28 MMM1EY. LLP wf wwwv.s:�ssa Yuav4G9f6N H. STATEMENT OF FACTS Transformation of the IBC Area: from Primarily Industrial Use to Intensified Residential Use. The Project is located in an area of ltvine that was, until relatively recently, dominated by industtial and commercial uses: this 2,800 -acre area was once called the Irvine Industrial Complex -West ("IIC-W"); it is now called the Irvine Business Complex, or IBC (IRV 3447-49.2) The IBC is located directly between Newport Beach and Tustin.. (Id. at p. 3443.) In 1982, Irvine prepared an EIR addressing the impacts of the newly established IIC-W (IRV 34.37-38, 3447 [1992 Preliminary Final EIR incotpotating by reference 1982 IIC-W EIRj.) In 1985, Irvine prepared a supplemental EIR to the 1982 IIC-W EIR (111985 IBC SEIR'J, which updated the 1982 IIC-W EIR's impact analyses, focusing in particular on traffic and circulation issues_ (IRV 3438) Between 1982 and 1985, intensive development occurred within the IBC, primarily in the form of new office development and conversion from industrial to office uses.. (See id. at p. 3447.) Recognizing that the street infrasttuctute would not be adequate for build -out of the planned commercial and industrial uses, the 1985 IBC SEIR established mitigation measures to improve circulation within the IBC.. (See ibid.) Ihese improvements are described in the 1992 IBC PEIR and are also described in Appendix A to the Project's DSEIR. (See IRV 3506-08; see also MAR 4290-92.) These improvements were to be implemented on an as needed basis, funded by fees exacted from projects as Irvine approved them_ (Idat p.. 3523.) In 1989, Irvine adopted General.Plan Amendment -16 (GPA -16). GPA -16 established development "caps" for individual areas within Irvine. (IRV 3439, 3448-49.) Irvine, however; 2/ Cites to the certified record of proceedings ("Record'I are noted by an acronym followed by page number(s). The acronym "IRV" has been assigned to background documents not specific to the Project, while the acronym "MAR" designates Project -specific documents Other relevant Irvine background documents, produced to Irvine on a DVD attached to a letter from counsel for- Allergan, orAllergan, Inc. dated February 14, 2007 (see MAR 7953, 8036), are included on two additional CD -R disks that are included as part of the Record. Citations to these documents are noted by the acronym "DVD" followed by the document's original bates number.. F FOR fnaNw Pc,elmfY,v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ;oon approved projects that exceeded the IBC's GPA -16 residential development cap of .3,571 mits. (Id at p.. 3448 ) Irvine knew then that circulation system improvements would be necessary o accommodate the planned level of development, but deferred identification of improvements mtil it completed planning for redeveloping the IBC as an "Urban Village " (Id at p. 3448-49.) In response to the rapid conversion of the IBC from its lower intensity industrial origins to nigher intensity commercial and office uses, in 1992 Irvine proposed amending its General Plan Land Use Element to designate the entire area `Business and Industrial" and rezoning the IBC to create three zoning districts: industrial, multi -use, and residential. (IRV 3450.) Irvine prepared a programmatic Environmental Impact Report, the "IBC PEIR," that analyzed the potentially significant impacts of the General Plan amendment and rezoning the IBC.. (Id at pp. 3384-87.) the Cities expressed multiple concerns regarding the proposed rezone project's potentially significant traffic impacts, which were not adequately addressed in the draft IBC PEIR. (See, e.g. id at pp. 688-92, 695-99 [Iustin and Newport Beach comment letters].) Irvine revised and recirculated the draft PEIR in response to these and other comments. (See id at p. 919.) the 1992 rezone increased the IBC's residential development cap from 3,5 71 units to 3,896 units. (IRV 3387.) Significantly, the 13C PEIR included an absolute cap for residential development: the PEIR stated that `residential development within [the] IBC will be limited to the existing and previously approved projects. No additional residential units beyond the existing and approved projects will be allowed within [the] IBC " (Id at p. 3450, italics added.) When preparing the IBC PEIR, Irvine conducted a traffic study to identify roadway improvements that would be necessary to accommodate the rezone's increased development intensity authorized by the rezone_ (IRV 2622; see also id at p. 3136-225..) the traffic study analyzed the traffic impacts that would result from build -out of the proposed rezone of the IBC3, 3 / The traffic study relied on the assumptions that the IBC would be 75% occupied and Irvine's Traffic Demand Management System ("TDMS") would result in a 15% reduction in traffic within 4 the IBC.. (IRV 2635..) The IBC PEIR assumed the IBC would be 82% occupied and TDMS would reduce traffic by 15%, (Id at p. 3468.) The IBC PEIR and its supporting traffic study did II 3 PETITIONERS' OPENiNO BRIEF IN SUPPORT OF PETITION FOR ,suazr.s.s.v ss�,.i w.n.sw.no So�N GOf&�i A U 4v VlrLe , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -vx.re.'mWnws. wmo sw.�u uvw�a and identified a number of intersections and transportation arteries that would fail at build -out of the IBC. (Id at p 2675, 2682,) According to the traffic study, the 1985 IBC SEIR's mitigation measures would not be adequate to effectively mitigate these traffic impacts — numerous additional mitigation measures would also be required to reduce impacts caused by the 1992 rezone, and even with all mitigation measures in place,4 some intersections and interchanges would fail to meet performance criteria (]bid; see also id at p.. 3388,) Consequently, Irvine adopted a Statement of Overriding Considerations which included a finding of significant and unavoidable traffic impacts. (Id at pp.. 4402-04,4422-23-) As part of the 1992 IBC rezone effort, Irvine developed an "IBC Database" that capped and tracked potential development intensities by parcel within the IBC. (IRV 2252, 2562-2619 [Exhibit E to IBC PEIR].) the IBC. Database allocated "underutilized" parcels a development potential of an "office equivalent" floor -area -ratio (" kAR'� of 0.25%, an additional 2364 million square feet (Id. at p. 3385) This development intensity cap established the overall level of development analyzed in the IBC PEIR. According to hvine, this development intensity continues to be controlled through the allocation of "trip budgets" to individual parcels, which may be transferred between parcels through the Transfer of Development Rights ("IDR") program. (MAR 4053, 4061.) the IDR program only allowed transfers of unused trips between "nonresidential" uses. (See IRV 2657; see also MAR 4061) Irvine imposes "IBC fees," which (according to hvine) fund circulation facility improvements as needed, (See IRV 3858- 61 [Irvine zoning code provisions regarding the IBC fee program].) not describe the various requirements for its IDMS program that would produce a 15% percent traffic reduction (See id at p.. 3468; see also id at p. 2635-36.) 4/ Irvine anticipated that the adopted mitigation measures would be implemented on an as need basis, as determined through periodic traffic studies known as Sliding Year Interim Analyses. (IRV 1144.) Despite repeated requests from the Cities, Irvine has not revealed which of these measures have actually been implemented (See, e.g., MAR 6198-99,6232-33 [Cities' comments regarding Project DSEIR]; see also id. at p. 76.35 [Newport Beach testimony at hvine Planning Commission hearing for Project].) YETMONERS' OPENING 5RIEF IN 4 snrioN FOR WRrr of MANDATE AND ©1 4 10 lI 12 13 14 15 16 Since approximately 2001, the rate of residential project approval within the IBC has accelerated (See MAR 8033-34.) Initially, Irvine prepared addenda to the IBC PEIR for each 17 18 19 20 21 22 23 24 25 26 27 28 %arc.'mGvs namxma nAWOpaY•Me0.9nM1�F10 Gmomro G%IN noject as a means to satisfy its obligations under CEQA: from 2001 to 2004, Irvine conducted ;nvircumental review in this manner for approximately 11 residential and mixed use projects in he IBC; together, these projects added 2,964 residential units to the IBC.S Newport Beach )bjected to this practice and hvine stopped. (See DVD 2C-17-000120,392 [comments fiom Newport Beach concerning inappropriate use of addenda and Irvine's responses] ) Irvine has long realized that the traffic mitigation measures adopted in 1992, even if' implemented, would not be adequate to mitigate the impacts of residential development projects and that, even if they were, Irvine lacks the funds to complete them. (See IRV 4402-04 [findings of fact regarding circulation and traffic adopted by Irvine in 1992]; see also idat pp_ [adopted Statement of'Oveniding Considerations]; see also id at pp. 4422-23 [adopted Circulation Improvements Funding and Development Plan identifying funding shortfall]; see also IRV 3388- 91 [list of IBC PEIR circulation and traffic mitigation measures and acknowledged unavoidable significant impacts]; see also DVD 2C-01-000463 [e-mail from Marty Bryant, Irvine Deputy Director of Public Works to Judy Vonada, Irvine Assistant City Manager] ) Despite Irvine's realization that necessary measures will not be fully and timely implemented, Irvine's pace of new residential project approvals has accelerated in recent years. In 2002, Irvine planners reviewing the proposed Central Park project observed: While it is understood that intensity for residential element of the project is coming from the transfer and conversion of anticipated office intensity in the IBC, it is possible that the introduction of a 45% increase in residential dwelling units within the IBC could cause significant changes in the required mitigations within the IBC.. [1j] [Ihis] considerable increase ... could indicate a significant departure f mm the [IBC] envisioned in the General Plan.. Ihis is particularly true since there are 5 / See IRV 4914-15 [Metlife Apartments]; id. at pp. 4822-23 [Essex Apartments]; id. at pp.. 6722-24 [RD Olson/Legacy Partners Condominiums]; DVD 2C-06-000067-72 [Lofts at Von Katman]; IRV 4539-41 [Watermatke Condominiums]; id. at pp. 9015-17 [2801 Kelvin]; id. at pp. 5718-20, 6147-49 [Campus Center Apartments]; id. at pp. 7261-63, 86-88 [Plaza]; id. at pp. 9432- 1.34 [Carlyle at Colton Plaza]; DVD 2C-24-000047-145 [BOSA II]; IRV 9944-46 [Granite Court]. IN SUPPORT OF PETITION FOR nrvu wmrinu. � Fbal.sPmdeiPp 1 2 3 4 51 n 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 m multiple similar requests that have the potential to increase the residential unit cap by up to 64.3%.... . (DVD 2C-01-000730.) Since 2004, Irvine considered options for addressing the large influx of new residential development applications in the IBC. (See MAR 4161.) As of fuly 2006, the month Irvine I released the DSEIRfor this Project, Irvine's staff reported a total of approximately 14,000 I existing, approved, and proposed IBC residential units were at various stages of Irvine's review (DVD I-071106-000008.) The proposed solution, an IBC "Vision Plan" that includes a I "Residential Mixed -Use Overlay Zone", would apply to all new residential developments (See, e.g. MAR 4161-67.) The Vision Plan is pending. Meanwhile, Irvine has continued to consider and approve residential projects within the IBC, including this Project. (See, e..g., id at p. 7054 ) As part of its Vision Plan planning process, Irvine is considering increasing the ultimate cap for residential development to as many as 20,000-38,000 units. (MAR 7747; see also id at p. 7955.) B. Project Description the Project is an 82 -unit multi -family residential condominium complex located on a 3.651 acre parcel, located at on the northwest corner of Martin Street and Von Karman Avenue, within the IBC. (MAR 4035, 4084.) The Project site is currently occupied by afoul -story office building. (kid.) The Project would retain the existing office building but replace the existing lot with a four-story residential development and parking garage. (Id at pp.. 4061-62.) the Irvine General Plan and Zoning Ordinance designated the Project site as urban and industrial and "5.1 IBC Multi -Use", respectively.. (MAR 4093.) the "5.1 IBC Multi -Use" zoning designation does not allow residential uses as either a permitted use or a conditional use.. (See MAR 9308-11; see also MAR 4154; see also IRV 3025 [version of "5.1 IBC Multi -Use" zoning designation analyzed in the IBC PEIR, limiting residential use to a single vested residential development of 360 units].) Thus, the project required a general plan amendment and zone change to increase the density cap for residential uses within the IBC and to allow residential use at the Project site.. (Id at p. 7047; see also MAR 4154.) 6 w.�x,ewonus nncaew PETITIONERS' OPENING BRrEF IN SUPPORT OF PEI wvu tr.ur +.s�wd wgmxxre s..mo uners AND xaawv.�uwp. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 C. Environmental Review for the Project Real Patties applied for a General Plan Amendment, Zone Change, Park Plan, Tentative Iraet Map, and Conditional Use Permit ("CUP") and a IDR. (MAR 7045.) In December 2005, [twine published a Notice of Preparation/Initial Study ("NOP/IS') for the Project. (MAR 2834 ) The Cities submitted comment letters concerning the NOP/IS, expressing concerns regarding the Project's potentially significant impacts to traffic and parks and recreation (Id at 4362-4365.) In July 2006, Irvine circulated a DSEIR for the Project for a 45 -day public review period. (MAR 4022.) The DSEIR both incorporates by reference and tiers fiom the IBC PEIR. (Id at p. 4051; see also id, at p. 6258) the cumulative impact analysis was based upon certain explicit assumptions concerning the number of approved and pending IBC residential projects. (Id. at pp. 4093-97) Ihis section of the DSEIR explains that recent applications to redevelop sites within the IBC to residential uses were "anticipated in the [IBC PEIR]." (Id at p.. 4096.) The IBC PEIR, however, had explicitly capped residential development within the TBC to those residential projects that had already been approved prior to the preparation of that BIR.. (IRV 3450.) 1. Traffic hnpact analysis the DSEIR analyzed the Project's potentially significant impacts on surrounding streets and intersections at 2010, 2025 and post -2025 at baseline, cumulative, noncumulative, and cumulative with project levels. (Id. at pp. 4220-4237.) In forecasting future traffic conditions, the study assumed that certain unspecified roadway improvements will be in place. (Id at p 5079.) By assuming implementation of roadway improvements, the study increased the "theoretical daily capacities" for IBC roadways. (Ibid) Io determine whether the Project would have a potentially significant adverse traffic impact, Irvine used its adopted threshold of significance of a 0.02 increase in the level of service ("LOS") at intersections and roadways in the study area that are to operate at a LOS of 1.00 or more. (Id at p, 4212; see also IRV 93.37-340 [2004 25 Traffic Impact Analysis Guidelines] .) Based on thcse assumptions and criteria, the DSEIR 26 concluded the Project would have no significant direct or cumulative traffic impacts. (MAR 4248- 27 50 ) Strangely, the figures for all future traffic levels show few intersections operating at deficient 28 LOS, despite the fact that Irvine had already approved or was considering, at the time the DSEIR .7 rt®n.nwrwv Miws[x wwFr,cv usoow wn.mkx�o Scwme. G9NN IN FOR WRIT OF MANDATE AND COMPLAIN r I.u.:El:o^Lla. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 was released, approximately, 14,000 residential units for the IBC. (See id at pp. 4225, 35, 37; see also DVD I-071106-000008 [Irvine planning official's testimony regarding estimated units] ) Numerous public agencies commented on the DSEIR, including Newport Beach, and Iustin. (MAR 6194-6200 ) In its letter, Newport Beach expressed its ongoing concern regarding &vine's reliance on the IBC PEIR and continued use of the TDR Program. (Id. at p. 6194) In two related comments, Iustin urged Irvine to impose IBC traffic mitigation measures as conditions of Project approval, as "the DSEIR assumes some of the IBC improvements to be in place when analyzing cumulative traffic impacts." (Id at p. 6198.) Irvine responded by stating that "the project will be responsible for paying its fah• share IBC fees," and "[b]ecause the [Project] requires a TDR, it is transferring trips from a location within the IBC, and will remain within the overall IBC trip cap. As such, the project is subject to the IBC mitigation program as identified in the IBC PEIR-" (Id. at p. 6200.) A separate, subsequent letter from Newport Beach expressed further concerns regarding the traffic analysis. (MAR 6230, 6247-49.) the letter noted the traffic study under stated the amount of'tiaffic that the Project would likely generate and raised concerns about Irvine's use of the TDR Program. (Id at p.. 6248-49.) Irvine defended the assumptions and methodology employed for the DSEIR's traffic impact analysis and reiterated its conclusion that the project would have no significant traffic impacts.. (Id at pp. 8327-29) Irvine concluded in the DSEIR's traffic analysis that none of the IBC PEIR mitigation measures were applicable to Project. (Id at p.. 4249..) Neither the Draft not the Final SEIR describe the IBC traffic mitigation fees that Irvine later claimed would be imposed upon the Project proponents as the project's fair share of future IBC roadway improvement program.. (See 23 MAR 4290-94; see also id at p. 6200 ) the DSEIR's mitigation measrne table indicates. some of 24 that the 1985 and 1992 traffic mitigation measures do not directly apply to the Project, but "IBC 25 Fees" are referenced in the comments column (Ibid.) Irvine suggested that such fees may be 26 imposed as part of a development agreement for the Project, but the final version of the 27 11 development agreement has not yet been approved, and none of the provisions of the development 28 agteement, including the amount of IBC Fees that maybe imposed, were analyzed in the SEIR. 8 mrc.xw..s naoeer I I PETITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR xwsr.ur 'sn"w uwi. no 1 2 3 4 5 6 7 8 9 10 11 12 131 WI 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ;Id. at p. 4079; see also id. at pp. 8267-68) Moreover; the Project, as approved, does not require iayment of fees earmarked for such improvements. (Id. at p. 8'753 ) 2. Parks and recreation impact analysis As indicated in the DSEIR, a separate park plan was prepared for the Project, detailing park dedication requirements_ (MAR 4079; see also id at pp. 7076-84..) The DSEIR did not, however, analyze the Project's potentially significant impacts upon parks and recreation amenities at any level of detail. (Id at p 4206-07) Instead, the DSEIR simply recited Irvine's parkland dedication requirements and concluded, without any analysis, that, because the Project applicant would be required to commit to paikland dedication and pay in -lieu fees required by the approved park plan, the Project would not result in any significant impacts to parks and recreation, (Ibid ) Irvine requires the dedication of parkland or contribution of in -lieu fees based on the number of residents a proposed project will have. (See MAR 4203.) Io calculate the number of . anticipated Project residents, Irvine used a "population generation factor" ("PGF") of 1.3 residents per unit. (Id. at p.. 4206.) According to this estimate, the 82 -unit Project would generate approximately 107 residents. (]bid) The Cities, criticized the PGF because it appeared to underestimate the number of IBC residents the Project would likely generate. (See id at p. 6246.) the PGF, which Irvine adopted by resolution in 2003, adjusted the estimate of residents pet dwelling unit ostensibly in response to data collected by the 2000 Census. (See DVD 2C-15- 000266..) Amore recent survey performed by Irvine's own consultants, however, found that each IBC residential unit generated approximately 1..86 residents. (See DVD* B-00-000626-6296; see also MAR 7935-36) Elsewhere, Irvine stated that it uses this latter study in its "IBC planning 6 / Prior to project approval, Allergan, Inc.., petitioner in the coordinated case (Case No. 07CC01268), submitted a DVD to Irvine that included, among other documents, Irvine records regarding the pending "Vision Plan." Irvine did not include these documents in the certified Record. By excluding these documents, Irvine has failed to certify a "complete record." (Protect Our Water v. County of Merced (2003) 110 CalApp.4th 362, 371) Citations to these documents are marked: "DVD*".. This evidence is the subject of'Petitioners' Request for Judicial Notice ("Request") and Motion to Augment the record ("Motion', filed concurrently with this brief. efxr.IIMMNA sio�.a I PETITIONERS' IAVtEY.LiI' IS, ppW 11Jl, Sv¢210 S�min CA 9RIi WRIT OF MANUAL tANU {tiNmB¢y,ltdlfp, 21 3 4 5 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 efforts to address issues such as recreational opportunities, ." (DVD* B-00-002595.) Because Irvine used the lower PGF to calculate dedication requirements, the resulting exaction for parks and recreational amenities was deficient by at least a third, The Community Services Commission approved the park plan by resolution on May 29, 2006, approximately six weeks before the DSEIR was released for public review and comment_ I (Compare MAR 3616 with id at p.. 4022 ) the respective staff reports to the Planning I Commission and the City Council, while including a copy of the park plan, do not provide any summary of its provisions or an explanation for how the park plan is supposed to mitigate the project's impacts. (Id. at pp. 7044-67; see also 8252-70.) D. Project Approval On F ebruary 15, 2007, the Planning Commission held a heating to consider the FEIR, Zone Change, Tentative Subdivision Map and CUP application.. (MAR 7385.) At this hearing, several commenters, including Petitioners, offered testimony concerning the Project and the pioposed conditions of approval.. (See, e.g., id at pp. 7630- 7645 [testimony by Aaron Harp, Beach Assistant City Attorney].) the Planning Commission adopted a resolution recommended that the City Council approve the Project. (Id, at pp. 7693- 7701) the resolution included a finding that the Iransfer of Development Rights ("IDR") required for the Project would have "no adverse impact on the surrounding circulation system." (See Ibid) the Planning Commission adopted a resolution recommending City Council approval of the development agreement, even though substantive provisions within the development agreement were the subject of continuing negotiations and none of the provisions of the development agreement were analyzed in the SEIR for the Project (Id at p. 7823-26; see also id. at p 4079 [DSEIR section, stating that a development agreement was possible, but not yet contemplated as part of Project] Petitioners. submitted additional comments concerning deficiencies in the traffic impact analyses, attaching a letter prepared by a traffic consultant (MAR 7962-68) The staff'report , submitted to the City Council included perfunctory responses to these comments. (Id. at p. 8256.) On March 27, 2007, the Irvine City Council held a hearing to consider the Project.. (MAR 8514-17 [minutes of hearing].) Following delibetation, the City Council adopted a resolution 10 ruxr asoma nraaE.+ I I PErITIONERS OPENING BRIEF IN SUPPORT OF PETITION FOR auwsr.uv �aNawu.w_o mem. totals Twd A Wn 1 2 3 4 ©II Nil 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 -2.3 24 25 26 27 2E ua,r.nwwv. tamsa wwsr.ur F„CyNIMa4Lbi10 yamwa G9,tla edifying the FEIR, approving a Mitigation Monitoring Plan, and adopting Findings of Fact. (Id. t pp. 8732-55.) Irvine, however, did not include IBC Fees for the Project's contribution to IBC raffic mitigation measures or in lieu community patio fees as part of the enforceable mitigation aeaswr& (See MAR 8753.) Nor did Irvine adopt a Statement of Overriding Considerations for- he orhe Project. (See id at p. 8733.) The City Council also adopted resolutions upholding the slanning Commission's approval of the Ientative Tract Map, CUP (including the TDR), and park )]an for the Project, and adopted separate ordinances approving a general plan amendment, zone ,hange, and development agreement, (Idat pp.. 8'756-60; id. at pp 8761-85; id. at pp. 8786-92.5; d at pp. 8793-99; id at pp. 8917-25; id at pp. 8926-60) Irvine filed allotice of Determination ("NOD”) for the Project on March 29, 2002 (MAR 3800.) On April 26, 2007, Petitioners commenced this action. III. STANDARD AND SCOPE OF REVIEW This court has. jurisdiction over this action under Public Resources Code section 21168 and Code of Civil Procedure section 1085.. The Project requires a general plan amendment and a zone change, two quasi -legislative agency actions that are reviewed under traditional mandamus. (See, e..g,, Gov, Code, § 65301 .5.) Because the nature of judicial review is determined by the "dominant concern of the action taken," traditional mandamus under Code of Civil Procedure section 1085 applies. (See Del Mar Terrace Conservancy, Inc v. City Council (1992) 10 CalAppAth 712, 727 (quoting City of Rancho Palos Ye? des v. City Council (1976) 59 CaLApp 3d 869, 885).) Under these statutes, a court must set aside an agency action if the agency committed a prejudicial abuse of discretion. A prejudicial abuse of discretion is established if the agency fails to proceed in the manner required by law or if its conclusions are not supported by substantial evidence. (Pub Resources Code, § 21168; Laurel Heights Improvement Assn v. Regents of7he Univ of Cal (1988) 47 Ca1.3d 376, 392, fn. 5 (Laurel Heights I).) The court presumes the correctness of the agency's decision and the petitioners challenging the decision bear the burden of proving that the EIR was legally inadequate or that the record does not contain substantial evidence to support the agency's decision. (See Al Larson Boat Shop, Inc v. Board of Harbor Commissioners (1993)18 Cal.App.Ath 729, 740 ) tt IN SUPPORT OF PETMON FOR WRIT 01� ,v®YwRc,xN F.yF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 An agency also commits prejudicial error by failing to comply with the "informational requirements" of CEQA. Such a failure results in a subversion of the purposes of CEQA by precluding informed decision making and informed public patticipation. (Fall River Wild Trout I Foundation v County of Shasta (1999) 70 Cal. App. 4th 482, 490491; see also Kings County Farm Bureau v City of Hanford (1990) 221 Cal.App..3d 692, 712 (Kings County Farm Bureau) ) Such error is presumed to be prejudicial, regardless of whether a different result would have occurred had the lead agency complied with CEQA, (Pub. Resources Code, § 21005, subd (a).) . The California Supreme Court recently observed that this type of failure constitutes a failure "to proceed in a manner prescribed by CEQA", which is reviewed de nova (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Feb. 1, 2007) 40 CalAth 412,435 (Vineyard Area Citizens) (quoting Sierra Club v. State Board of Forestry (1994) 7 Cal -4th 1215, 1236).) IV. ARGUMENT i Petitioner s have a single, yet vital, interest in this case: ensuring that all of the Project's i impacts are disclosed, analyzed and mitigated. Petitioners have long recognized that whether to approve the Project, or any other project in the IBC, is a matter left to the wisdom and judgment of the hvine City Council. (See, a g, DVD 2C-17-000120 [letter from Newport Beach City Manager to Irvine Planning Commission].) hvine does not have discretion, however, with respect to its core obligations under CEQA. In order to comply with CEQA, hvine must: (1) prepare an EIR that analyzes the direct and cumulative impacts of this new Project; (2) appropriately identify and mitigate all environmental impacts of the Project if it is feasible to do so; and (3) adopt findings, supported by substantial evidence, spelling out how Irvine has carried out these obligations.. (See CEQA Guidelines, §§ 15088-15088.5,15091-15093.) A. Irvine Violated CEQA by Tiering from the IBC PEIR and by Improperly Incorporating by Reference the IBC PEHL Irvine abused its discretion when it prepared a subsequent EIR tiering off the IBC PEIR. CEQA requires that Irvine prepare an independent, stand-alone EIR for the Project. "The [CEQA] I` Guidelines contemplate a 'subsequent' EIR for an aheady existing project that is approved in an EIR and that later experiences 'substantial changes' either in the project or in the circumstances in 12 rtuv.naua= moon: m I P=ONERS' OPENING BRIEF IN SUPPORT OF PET MON FOR WRIT OF MANDATE AND COMPLAINT W1LLEY. W ss rµm5mmmvo 5'v�ivb GRSRIa RtmW wPRW/IYyc 1 2 3 which the project will be undertaken." (Natural Resources Defense Council v City of Los Angeles ,2002) 103 Cal.App 4th 268, 282 (citing CEQA Guidelines, § 15162).) "Ihe tiering process may 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of be used when a project is not consistent with a program, plan, policy or ordinance for which I he prior EIR was prepared" (1 Kostka & Zischke, Practice Under the California Environmental 2uality Act, (Cont.Ed.Bar 2006) § 11.4 (citing Sierra Club v County of Sonoma (1992) 6 :al.App.4th 1307 (Sierra Club)) r) Under CEQA, an "inconsistent project is treated as a new rroject that has not been subject to a prior environmental review " (Ibid.) "Case law does not establish a clear-cut test for determining when a new application should be treated as an application for a change in a previously approved project as opposed to a new project[]" (Gentry v. City of Murrieta (1995) 36 Cal.AppAth 1359,1401 (Gentry) ) Case law shows, however, that an agency cannot rely on tiering if either the passage of time or the new project's inconsistency with the original project warrant an independent, stand-alone EIR. In Sierra Club, the appellate court held that a new stand-alone EIR should have been prepared, relying on the fact that the new application was inconsistent with the original project. (6 Cal.AppAth at pp.. 1322-1331) A county granted amining company's request to amend an adopted plan specifying which land could be used for mining aggregate by redesignating certain land as suitable for mining and by authorizing a different reclamation method.. (Id. at p. 1314_) Ihe county found that all the resulting environmental effects had been considered in the prior EIR and it therefore adopted a negative declaration.. According to the Court, "[Public Resources Code] [s]ection 21166 and the substantial evidence standard ... apply only `when the question is whether more than one EIR must be prepared for what is essentially the same project.."' (Id at p. 1320 ) Ihe court found that the requested amendments were not part of the original project because `the evidence does not support a determination that [the] proposed site-specific project was either the same as or within the scope of the project, program, or plan described in the program EIR." (Id_ at pp. 1320-1321.) Ihe California Supreme Court recently summaY9zed the 26 2711 r 1 Attached hereto, for the Court's reference, as Exhibit A. 28 NMY.t1N4NY 1nMbF®6 wenn• w• .is, W:uwu,s�na 9aorma G939M 13 iN SUPPORT or PE MON FOR WRIT OF i 1 general rules concerning tiering as follows: "f o]nce a general project impact has been analyzed in 2 the broadest first-tier EIR, the agency saves time and resources by relying on that fust -tier analysis 3 in later, more specific environmental analysis documents, provided of course that passage of time 4 or factors peculiar to the later project phase do not render the first-tier analysis inadequate." 5 (Vineyard Area Citizens, supra, 40 Cal 4th at p. 431, fh. 7..) 6 Under these principles, in this case Irvine could tier offthe IBC PEIR only if the Martin 7 Street project — is consistent with the earlier 1992 IBC plan, and the passage of time has not 8 tendered the IBC EIR inadequate. As explained below, however, there are two reasons why Irvine 9 erred by tiering off the IBC EIR. First, dramatically changed conditions in the IBC render the IBC 10 PEIR's analysis stale and irrelevant to the Project's environmental impacts., the passage of time, 11 combined with the wide -scale evolution ofthe IBC from industrial and commercial uses to largely 12 residential and light commercial uses, necessitate preparation of a new EIR for the Project. 13 Second, the Project is neithera "change in a previously approved project" not a project 14 contemplated in or consistent with the IBC PEIR 15 Irvine's attempt to incorporate by reference the IBC PEIR analyses was also flawed. As 16 will be explained below, Irvine violated CEQA by not providing a roadmap of the IBC PEIR 17 analyses upon which the SEIR relies and by failing to address the unavoidable significant impacts 18 identified in the IBC PEIR.. 19 1. The IBC PEIR is stale and cannot be relied upon in the analysis of the Project's potentially significant environmental effects. 20 the environmental setting, standards, and available mitigation measures have all changed 21 dramatically in the 15 years since Irvine certified the IBC PEIR. Irvine's own records show that, 22 since 1992, Irvine has approved many times the amount of residential development intensity 23 originally contemplated for the IBC area. (Compare IRV .3450 with MAR 364) the IBC has 24 transformed from an essentially industrial and commercial center to a light commercial and 25 increasingly residential mixed-use community. (See MAR 4050.) The IBC PEIR did not 26 anticipate this transformation; in fact, the 1992 EIR and rezone placed a 3,896 -unit cap on 27 residential development. (IRV 3450 ) Since the time of the IBC PEIR certification and as of July 28 14 ' ecxr, ..s McosEma I PETITIONERS' OPENING 13RMF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND I:OMPLAINT xnwwr.us s cyurue.a�zw s uswi. MwwWs,v46Pw III 10 11 12 13 . 14 15 16 17 18 19 20 21 22 23 1, 2006 (the month Irvine published the Project DSEIR), the City had approved or was onsidering approximately 41 residential projects consisting of approximately 14,000 residential mits,. (See DVD 1-071106-000008.) Thus, at the time Irvine was preparing the DSEIR for this /roject Irvine had either approved or was considering for approval more than three times the rumber of residential projects contemplated and studied in the TBC PEIR. Under such mcumstances, Irvine's continued reliance on the IBC PEIR is beyond the boundaries of its Uscretion.. Irvine should have concluded that the Project was neither the "same as [notj within the scope of the project, program, or plan described in the [1991 IBC] EIR." (Sierra Club, supra, 6 Cal App.4th at pp.. 1320-1321 (citing CEQA Guidelines § 15168, subd. (c)(5).) In failing to do so, Irvine abused its discretion by failing to prepare a stand-alone EIR for the Project.. "The rationale for limiting the circumstances under which a supplemental or subsequent EIR may be prepared is `precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired (§ 21167, subd. (c)), and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.."' (Mani Brothers Real Estate Group v. City of Los Angeles (200 7) 153 Cal.AppAth 1385,1398 (Mani Bros.) (quoting Bowman v.. City of'Petaluma (1986)185 Cal.App.3d 1065,1073) (italics added); see also Save Our Neighborhood v. Lishman (2006)140 Ca1..AppAth 1288, 1296 [concluding that changes in the project required preparation of a stand- alone environmental analysis; agency erred by relying on section 211661) In this case, by contrast, the Project is emblematic of a broader transformation of the IBC into a mixed-use residential area. That transformation has potentially far-reaching impacts, particularly with respect to land use and planning, population and housing, public services, circulation and traffic and utilities and service systems. These impacts were not 24 anticipated or analyzed in the IBC PEIR, nor were they addressed in Irvine's review of individual 25 projects, usually in the form of addenda, performed since 1992. Nor, indeed, were they addressed 26 in the Project SEIR. (See MAR 4084, 4151-4153.) As a result of its piece -meal approach, Irvine 27 has approved projects that have rapidly transformed the IBC into a mixed-use residential area, 28 without ever performing a comprehensive analysis of the impacts of doing so 15 xmtt,mwa's. raoosEw IF PEMIONERS' assnM. MA41SY. W a„p,ww s.,m,mw 4 OF PETITION FOR tuvu �.vrvir�.wv. „Intl m,a¢iW My 1 2. The Project is inconsistent with the project analyzed in the IBC PEM 2 the administrative record is replete with evidence demonstrating that it was unreasonable 3 for Irvine to conclude that the project analyzed in the IBC PER and this Project are "essentially 4 the same." (See Sierra Club, supra, 6 Cal.App.4th at p 1320.) Lvine prepared the IBC. PER to 5 analyze the impacts of a comprehensive general plan amendment and rezone of'the entire IBC, but 6 that PER was intended to analyze the impacts of those already existing and pending residential 7 developments. (IRV 43954530; MAR 4168) Ihus, the PEIR contemplated up to 3,898 8 residential units in the IBC and no more. (ld, at pp.. 3450-52, .3455, 3460-61.) The IBC PEIR did 9 not analyze the conversion of the IBC to residential mixed-use on the grand scale that has occurred 10 through incremental approvals since 1992 The impacts of these residential uses differ fiom the 11 primarily office and industrial uses that were contemplated in 1992, (DVD 2C-01-000321 12 [comments regarding Central Park West project stating "[o]ffiee and residential uses are 13 substantially more intense than warehouse uses which do not typically generate a substantial 14 amount of activity on-site"]_) Because of this fundamental inconsistency, Irvine erred by tiering 15 and should have instead prepared a new EIR fox the Project 16 3. The SEIR improperly incorporated by reference the IBC PEHL 17 Irvine furtherviolated CEQA by improperly incorporating by reference the IBC PEIR's 18 analyses.. Under CEQA, "[w]here an EIR.. uses incorporation by reference, the incorporated 19 part of the referenced document shall be briefly summarized where possible or briefly summarized 20 if the data or information can not be summarized. the relationship between the incorporated part 21 of the referenced document and the EIR shall be described." (CEQA Guidelines, § 15150, subd. 22 (c).) An EIR that uses this device must give the reader a "road map to the information it intends to 23 convey." (Vineyard Area Citizens, supra, 40 CalAth at P. 443 (citing CEQA Guidelines §§ 24 15150, subd. (c), 15152, subd. (g).) As the Vineyard Area Citizens court explained, 25 "[t}he audience to whom an EIR must communicate is not the reviewing court but the public and the government officials deciding on the project That a patty's 26 briefs to the court may explain or supplement matters that are obscure or incomplete in the EIR, for example; is irrelevant, because the public and decision maker s did 27 not have the briefs available at the time the project was reviewed and approved the 28 question is therefore not whether the project's significant environmental effects can 16 kLtlY.rtIdMS uoo-sr I PETITIONERS' OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND us c.rx�s:�no S.msb G9AV faaaoV vW ipe 4 0 13 14 15 16 171 18 19 20 21 22 23 24 2! 2E xeer. maws uooyea•e AVMfY.LIP usa,u.�wua.i�o be clearly explained, but whether they were " (Ibid., italics in original.) Here, the SEIR suffers from the same flaw that was identified in Vineyard Area Citizens he SEIR incorporates by reference the IBC PEIR but does not summarize the analyses from the BC PEIR upon which its analyses rely (See id. at pp. MAR 4051, 4053, 4083 [DSEIR's general ummaries of the IBC PE1RI.) 4. The SEIR ignores unavoidable significant impacts identified in the IBC PEIR. Because the DSEIR tiered from the IBC PEIR and relied upon the previous EIR's impact analyses, Irvine should have addressed the unavoidable significant impacts identified in 1992 and either mitigated them or publicly acknowledged these continued impacts by adopting a statement of overriding considerations for the Project. "Ihe requirement of a statement of overriding considerations is central to CEQA's role as a public accountability statute; it requires public officials, in approving environmentally detrimental projects, to justify theft decisions based on counterbalancing social, economic or other benefits, and to point to substantial evidence in support" (Communities for a Better Environment v California Resources Agency (2002) 103 Cal App.4th 98, 124-125 (CBE).) In overturning former CEQA Guidelines section 15152, subdivision (f)(3)(c), which had authorized agencies to forego adopting a statement of overriding considerations ("SOC") for second-tier projects with significant unavoidable impacts, the CBE stated: "Even though'a prior EIR's analysis of envnonmental effects may be subject to being incorporated in a later EIR for a later, mote specific project, the responsible public officials must still go on the record and explain specifically why they are approving the later project despite its significant unavoidable impacts-" (CBE, supra, 103 Cal App.4th at pp. 124-25, italics in original..) Here, when Irvine certified the IBC PEIR in 1992, it acknowledged that rezoning the IBC would have unavoidable significant impacts in a variety of impact categories, including traffic and circulation and parks and recreation.. (IRV 3388-430 [summary of environmental impacts]; see also IRV 4402-06,440"9,4411-12,4414-15,4419-20,4422-23 [adopted findings and SOC]..) The Project SEIR incorporated by reference and tiered fiom the IBC PEIR's analyses, and relied Lil 17 AND COMM AMT r,,.ra,eanaus+o= 2 3 4 5i 6 7 8 9 10 11 12 13 14 15 161 171 18 19 20 21 22 23 24 25 26 27 28 xmzr.nawa `,`orae.` w.rncr.us +ssa,�w awi,s.rne Sa®o G9Rv extensively upon the TDR program in concluding that the Project would not have any significant air quality or traffic impacts (See, a g., MAR 4114 [DSEIR's air quality impact analysis concludes that the Project's impacts are less than significant because the development intensity within the IBC will remain below cap analyzed in IBC PEIR]..; see also id at p. 4215 [traffic impact analysis, stating traffic model subtracted vehicle trips fiom sending site].) In analyzing the Project in the SEIR, Irvine never acknowledged that the prior PEIR identified these unmitigated significant adverse environmental effects; nor did Irvine identify or analyze those effects in the Project's SEIR. Because the DSEIR did not address (much less cure) the previously unmitigated effects, Irvine was required to "go on the record" by adopting a SOC for the Project Irvine, however, did not adopt a SOC. (See id. at p.. 873.3.) B. The City Violated CEQA by Failing to Adequately Disclose the Project's Cumulative Impacts. the CEQA Guidelines define "cumulative impacts" as "two or more individual effects which, when considered together, are considerable or., compound or increase other environmental.impacts" (CEQA Guidelines, § 15355) "Ihe cumulative impact from several projects is the change in the environment which results fiom the incremental impact ofthe project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result firm individually minor but collectively significant projects taking place over a period of time." (Id., subd. (b); see Los Angeles Unified School Dist. v City of Los Angeles (1997) 58 Cal.AppAth 1019,1024-25 (L A USD)..) Cumulative impacts analysis is necessary because "jt]he full environmental impact of a proposed.. , .. action cannot be gauged in a vacuum." (Whitman v. Board of Supervisors (1979) 88 Cal..App.3d 397, 408 (Whitman).) "[A]n agency may not .... [treat] a project as an isolated `single shot' venture in the face of persuasive evidence that it is but one of several substantially similar operations....... Io ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster." (]bid (quoting Natural Resources Defense Council v Callaway (1975) 524 F.2d 79, 88 ) As another court explained: 18 I3RMF M JUPPORT OF r MUON FOR M 1'we,m Rs,ablNpr 2 5 6 r 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 21 One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources. Ihese sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources in which they interact. (L.A. USD, supra, 58 Ca1.AppAth 1019, at p, 1025, quotation marks omitted) -hus, "it is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it Gust reflect a conscientious effort to provide public agencies and the general public with adequate nd relevant detailed information about them." (San Franciscans for Reasonable Growth Y. City and County of San Francisco (1984) 151 Cal.App.3d 61, 79; see also Citizens to Preserve the Ojai r. County of Ventura (1985)176 Cal..App 3d 421, 430-432.) A proper analysis of cumulative impacts involves two steps,; The first question is whether the combined effects from both the proposed project and other projects would be cumulatively significant. If the agency answers this question in the affirmative, then the second question is whether "the proposed project's incremental effects are cumulatively considerable-" (CBE, supra, 103 Cal.App..4th atp.120, italics added; see CEQA Guidelines, § 15064, subd. (h)(1).) In general, the poorer the quality of the existing environment, the more likely it is that a project's incremental contribution to future cumulative conditions will be significant (Le., "cumulatively considerable'D. (Ibid.; see also, e..g.., Kings County Farm Bureau, supra, 221 Cal App.3d at p. 720.) In this case, Irvine could have performed programmatic review of the now pending Vision Plan for the IBC before conducting review for this Project. (See MAR 6280 [Allergan comment urging this approach]) Because Irvine elected to proceed with this and other individual Projects before conducting programmatic review, it was at least required to prepare an adequate analysis of the project's cumulative impacts. Irvine's approach obscured the Project's cumulatively considerable contribution to traffic and other impacts in two ways: (1) the scope of'Irvine's analysis ignored projects that were reasonably foreseeable at the time hvine performed its analysis of the Project, and (2) Irvine used a "significance tbreshold" to evaluate the Project's traffic impacts that impermissibly obscured the Project's contribution to cumulative traffic congestion. ,, � mlwff me I I PErITIONERB' OPENING BRIEF IN SUPPORT OF PFnTION FOR WRIT OF N(•MLY, 11.P us ar„roaaaa,io ww�r. ufw4 ,ypYm4wyW 5yR I 21 ill' 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 231 24 25 26 27 28 xarv,n�mus ,eo�ma ai�A�eq S,icxto Sw.mYe CA,,,M 1. Irvine's assumptions regarding cumulative impacts failed to consider all past, present and probable future projects. The transformation of the IBC to a residentially -oriented area has been underway since at least 1992. Before considering this Project, and numerous other recently approved residential Irvine should have performed a comprehensive analysis of the cumulative effects of the overarching transformation trend. It did not. Instead, Irvine adopted an arbitrary cut-off date for purposes of'determining whether to consider other proposals in its cumulative impact analysis for the Project, Ihis approach violated CEQA by artificially constraining the analysis. "When faced with a challenge that the cumulative impacts analysis is unduly narrow, the court must determine whether it was reasonable and practical to include the omitted projects and whether their exclusion prevented the severity and significance of the cumulative impacts firom being accurately reflected." (Bakersfield Citizens for Local Control v City of Bakersfield (2004) 124 Cal.App 4th 1184, 1215.) "Projects are constantly being fed into the environmental review process. the problem of where to draw the line on `projects under review' that must be included in the cumulative impact analysis of'aparticular project could be solved by the use of a reasonable cutoff' date which could be set for every project according to a standard procedure " (San Franciscans for Reasonable Growth, supra, 151 Ca1.App.3d at p.. 75, n. 14; see CEQA Guidelines, § 15130, subd.. (b)_) Here, Irvine failed to consider all reasonably foreseeable probable future projects in the DEIR's cumulative impact analyses. Irvine did not consider several projects for which it received applications within a few months of'December 28, 2005, the NOP publication date. (See MAR 6234, 6260-61 [Newport Beach comment identifying several proiects not considered in cumulative impacts analyses and Irvine responses to same]..) When the Cities pointed out projects omitted from the cumulative impact analyses, Irvine responded that applications for several of these projects were not received until months after the Project's NOP was published. Qbid) Yet, the courts stuck down a CEQA Guideline establishing the NOP publication date as a cut-off for reasonably foreseeable future projects, (See CBE, supra, 103 Cal.App.4th at p.. 122.) OPENING BRTEr IN SUPPORT OF 20 FMJ DI rA,m.u.�drae 1 2 31 41 5 6 7 8 9 Ihere were similar flaws with the future projects that Irvine considered in the Project's raffic impact analysis Irvine's traffic consultant used the date that Irvine approved the traffic >tudy scope of'work — May 3, 2005 — as the cutoff date for considering other projects in the Iraffic Study. (MAR 5076 [DSEIR Appendix. H, Traffic Study discussion of methodology].) The FSEIR included a supplemental traffic study, which attempted to cure this enor by updating the list of projects considered in the traffic analysis. (See td at pp. 6338-40 ) Ihis list of projects, however, used an equally arbitrary cut-offdate — March 22, 2006 — thereby omitting several of the same pending projects that the Cities identified in their initial comments. (See ibid [the Village, Mountain Vista, Park Place, and the Metropolis are omitted from analysis]; see also id at 10 p.. 6328..) Letters from Irvine's traffic consultant do not explain why the updated traffic study used 11 March 22, 2006, as the cut-off date for considering pending projects.. (See id. at pp. 6311, 6326..) 12 Irvine's knowledge of these pending projects meant it was required to consider them in the 13 Project's SEIR. (San Franciscans for- Reasonable Growth, supra, 151 Ca1.App.3d at p. 75.) It did 14 not. Instead, the cumulative impact analysis was based upon the faulty premise that 10,037 15 residential units were approved or pending at the time the DSEIR was prepared, when in fact this 16 number was much closer to 14,000 units — a difference of almost 4,000 units. (Compare MAR 17 4096-97 [DSEIR fist of approved and pending projects] with DVD I-071106-000008.) Indeed, 18 throughout the DSEIR, Irvine used the lower estimate of approved and pending projects for its 19 cumulative impact analyses. (See id at pp. 4093-97.) Ihus, Irvine's effort to identify, analyze 20 and mitigate the Project's cumulative impacts does not constitute a "conscientious effort to 21 provide public agencies and the general public with adequate and relevant detailed information 22 about them." (Citizens to Preserve the Ojai, supra, 176 Ca1.App.3d at p. 431.) 23 2. Irvine relied on a "significance threshold" for traffic designed to obscure the Project's contribution to congested roadways. 24 25 Case law recognizes that an adopted level of service, or "LOS," standard may serve as a 26 threshold of significance for CEQA purposes. (See Schaeffer Land Trust v. San Jose City Council _ 27 (1989) 215 Ca1.App3d 612, 623-625..) Compliance with an LOS standard, however, does not 28 relieve the agency of its duty to consider whether a significant impact may occur. (Mejia v. City 21 nrL+r,TxdMsuoseme .„�L'pl.lYXIb0.9omx�0 ,�,�r�nssua EN OF MANDATE AND COMPO AINT hmf m8aryeblVw 1 2 3 4 5 6 7 8 9 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 of'Los Angeles (2005) 130 Cal.App.4th 322,342 [observing a public agency cannot apply a threshold of'significance in a way that prevents consideration of'other evidence showing that there maybe a significant effect]; see CEQA Guidelines, § 15064.7, subd. (b); Protect the Historic Waterways v. Amador Water Agency (2004) 116 Cal App.4th 1099, 1109-11.) In the context of cumulative impacts, the issue is not the relative contribution of the project as compared to existing conditions, but whether "any additional amount" contributed by the project should be considered significant in view of the severity of the existing problem.. (CBE, supra, 103 Cal.App 4th at pp. 119-120; see also Kings County Farm Bureau, supra, 221 Cal.App3d at p. 721 [rejecting cumulative air quality impact analysis for relying on "ratio" theory] ) In this case, Irvine adopted a significance threshold for cumulative traffic impacts that ignored these principles. Indeed, Irvine applied the same threshold of significance fox both direct and cumulative impacts. (MAR 4212, 4226, 4232, 4248-49.) Irvine did identify intersections and roadways that would operate at a deficient.LOS under cumulative conditions. At the second step of the analysis, however, Irvine dismissed the Project's contribution to traffic at these intersections and roadways because the Project would not cause a change in LOS that exceeded 0.02.. (See, e.g., MAR 4212, 4248-49.) In response to comments from the Cities, Irvine provides no explanation for using the same threshold of significance for both direct and cumulative impacts. (See MAR 8256; see also MAR 7927 [internal memo dismissing concerns] )8 C. The SEIR does not Adequately Analyze Truffle Impacts and Irvine Erred by Failing to Adopt Necessary Traffic Mitigation Measures. An adequate EIR must be "prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences " (Guidelines, § 15151) "An EIR is an informational document which will inform public agency decisionmakers and the public generally of the 8 / The FSEIR did not address this concern. (MAR 8256) Thus, Irvine failed to provide a "good faith, reasoned analysis" in response to this comment (CEQA Guidelines, § 15088, subd (c).) MA OPENPIG BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT mew®nom n,s 25 26 27 28 cPbr.nMu.• ,eaese� +ssr�,.w rs,.msao so®m ons+ of'Los Angeles (2005) 130 Cal.App.4th 322,342 [observing a public agency cannot apply a threshold of'significance in a way that prevents consideration of'other evidence showing that there maybe a significant effect]; see CEQA Guidelines, § 15064.7, subd. (b); Protect the Historic Waterways v. Amador Water Agency (2004) 116 Cal App.4th 1099, 1109-11.) In the context of cumulative impacts, the issue is not the relative contribution of the project as compared to existing conditions, but whether "any additional amount" contributed by the project should be considered significant in view of the severity of the existing problem.. (CBE, supra, 103 Cal.App 4th at pp. 119-120; see also Kings County Farm Bureau, supra, 221 Cal.App3d at p. 721 [rejecting cumulative air quality impact analysis for relying on "ratio" theory] ) In this case, Irvine adopted a significance threshold for cumulative traffic impacts that ignored these principles. Indeed, Irvine applied the same threshold of significance fox both direct and cumulative impacts. (MAR 4212, 4226, 4232, 4248-49.) Irvine did identify intersections and roadways that would operate at a deficient.LOS under cumulative conditions. At the second step of the analysis, however, Irvine dismissed the Project's contribution to traffic at these intersections and roadways because the Project would not cause a change in LOS that exceeded 0.02.. (See, e.g., MAR 4212, 4248-49.) In response to comments from the Cities, Irvine provides no explanation for using the same threshold of significance for both direct and cumulative impacts. (See MAR 8256; see also MAR 7927 [internal memo dismissing concerns] )8 C. The SEIR does not Adequately Analyze Truffle Impacts and Irvine Erred by Failing to Adopt Necessary Traffic Mitigation Measures. An adequate EIR must be "prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences " (Guidelines, § 15151) "An EIR is an informational document which will inform public agency decisionmakers and the public generally of the 8 / The FSEIR did not address this concern. (MAR 8256) Thus, Irvine failed to provide a "good faith, reasoned analysis" in response to this comment (CEQA Guidelines, § 15088, subd (c).) MA OPENPIG BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT mew®nom n,s 11 N 3 4 1 5 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 V 21 arett: nwMAv LxABEa✓ nwzu v, w a"�yy�Nei,o s.vomm u„ew gnificant environmental effects of a project, identify possible ways to minimize these effects, ad describe reasonable alternatives to the project." (CEQA Guidelines, § 15121) the courts have repeatedly emphasized the importance ofthe public's role in the CEQA rocess; such participation supplies both vitality and legitimacy to the environmental review access. (See, e.g., Laurel Heights I, supra, 47 Cal3d at p.. 392.) An EIR must "include detail ufficient to enable those who did not participate in its preparation to understand and to consider neaningfully the issues raised by the proposed project." (1d. at p. 405.) "A prejudicial abuse of lisctetion occurs if the failure to include relevant information precludes informed decisionmaking rnd informed public participation, thereby thwarting the statutory goals of the EIR process." 'Kings County Farm Bureau, supra, 221 Ca1.App.3d at p.. 712 (citing Laurel Heights 1, supra, .47 Ca13d at pp. 403-405)..) As the Supreme Court recently elaborated on the CEQA's informational requirements, "[t]he data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project_ "[I]nformation `scattered here and therein EIR appendices,' or a report `buried in an appendix,' is not a substitute for `a good faith reasoned analysis ... "' (Vineyard Area Citizens, supra, 40 Cal4th at p.. 442 (quoting California Oak Foundation v. City of Santa Clar iia (2005) 133 Ca1.App.4th 1219, 1239).) Ihis duty extends to the agency's obligation to provide written responses to those who submit comments on the BIR. (CEQA Guidelines, § 15088, subd. (c)-) "problems raised by the public and responsible experts requite a good faith reasoned analysis in response.. [Citation] the regpu'ement of a detailed analysis in response ensures that stubborn problems or serious criticism are not swept under the tug."' (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 722-23 (citing Cleary v Count' of Stanislaus (1981) 118 Cal.App3d 348, 357 ) In this case, Irvine had a heightened duty to consult with the Cities and to take seriously their comments concerning the. Project's potentially significant adverse traffic impacts. CEQA Guidelines, section 15086, subdivision (a)(5) requires a lead agency to consult with other public agencies with transportation facilities within ten miles of a proposed project that is of statewide, 23 PETITIONERS' wR1T OF MANDATE AND 10 11 12 13 14 15 16 17 18 19' 20 211 22 23 24 25 26 27 28 PEMY.IHWNS M005Em! Aavnb G 24411 regional, or areawide significance, Because the Project included an amendment of Irvine's General Plan, it is necessarily a project of statewide, regional, or areawide significance (CEQA Guidelines § 15206, subd_ (b)(1)), and Irvine had a duty to consult with other public agencies with transportation facilities, including the Cities. Irvine's traffic analysis for the Project falls short ofthese requirements in the following six ways: (1) the SEIR's description and application of the IDR program is both flawed and impenetrable; (2) the traffic model's output is nonsensical, yet Irvine failed to respond to comments pointing out this fact, (3) the traffic analysis relied on unstated assumptions regarding what traffic improvements will be constructed at some unspecified time in the future, (4) there is no evidence indicating that Irvine's traffic fee program will be adequate to construct the unidentified improvements, (5) there is no explanation whether the Project's contribution will be adequate, and (6) Irvine failed to impose measures adopted by the City as part of the IBC_ 1. The City's explanation and application of the TDR program is impenetrable and flawed. While the court does not have the duty of scrutinizing the validity of the conclusions expressed in the EIR, it does have a duty to review the sufficiency of the report as an informative document. (See Environmental Defense Fund, Inc. v Coastside County Water District (1972) 27 Cal.App3d 695, 705_) "[Disagreement] among experts does not make an EIR inadequate," but an EIR's impact analysis must provide the public and decisionmakets with information concerning the projects' potentially significant impacts, (See Karlson v. City of Camarillo (1980) 100 Cal.App,M 789, 805) It is "not necessary that [anEIR's] analysis be so exhaustively detailed as to include every conceivable study or permutation of the data" (San Joaquin Raptor Rescue Center v. County of Merced (200'7)149 Cal, App.. 4th 645, 666 (citing CEQA Guidelines, § 15151).) However, "[a] clearly inadequate or unsupported study is entitled to no judicial deference," (Laurel Heights I, supra, 47 Cal.3d at p 409 fn.. 12) In this case, Irvine relied on the application of its IDR program to conclude that the Project would not cause project -specific or cumulative traffic impacts As noted above, under that program, the developer acquired the vehicle trips assigned by Irvine to another parcel in the IBC 24 PE MONERV OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND CONIPrAINT 4tiYtn2ev,ebity 1 t 2 r 3 t 4 r 7 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2f P@AY.9 RlWS MW4d MMIM.LLP afscyiui Nw4s®.i�o sm..m..unew compensate for the increased trips generated by the Project, so that the IBC as a whole would of experience a net increase in traffic, Ihere were three problems, however, with how Irvine's :affrc consultant applied this program to the Project.. Fitst, Irvine failed to provide an intelligible esciiption of the TDR Program, as applied to the Project. (See MAR 4215-16; see also id at pp. 053, 4061 [DSEIR descriptions of Irvine's use of trip caps as a means to limit development vithin the IBC]; see id at p.. 6184-87 [F SEIR general responses regarding cumulative impacts and tse of the IDR Program], 6200 [responses to Tustin's comments], 6328, 6332 [relevant excerpts iom scope of work for traffic study].) The SEIR does not describe the IBC PEIR's analysis of the [DR program, and does not acknowledge the SOC that hvine adopted in 1992 because it found he intensity of development planned for the IBC would have unavoidable significant impacts. Second, Irvine's consultant got the math wrong. The consultant apparently assumed that the existing office and retail uses on the Project site would be demolished. (MAR 6311..) This assumption is incorrect; office and retail uses on the Project site will remain in operation. (Id at pp.. 4061-62 ) Thus, the consultant underestimated the number- of vehicle trips that will be generated by the Project, in combination with the existing uses.. (See id. at p. 9332_) Third, the transfer of trips from the Campus Center — the "sending site" under the TDR program — was a chimera.. The traffic study deducted the Campus Center trips from the traffic model in order to generate predicted traffic levels.. (See MAR 4215; see also id at p. 5074) Yet, in subtracting these trips from the model, no corresponding reduction in trips occurred in the real world; rather, the TDR program merely served as a scheme to allow an increase in traffic at the Project site, without a corresponding reduction elsewhere in actual traffic. Nor, despite requests, did Irvine provide an accounting of'how the IDR program had been monitored and enforced in order to ensure that the traffic caps (upon which Irvine's analysis relied) were nothing more than accounting gimmick, without bothering to do any actual accounting. (Compare id at pp. 6248 [Newport Beach comments] with idat p. 6274.) This methodology is in conflict with Irvine's own Traffic impact Analysis Guidelines, which require Irvine to measure the Project's impacts upon conditions existing at the time the NOP is published. (See id at p- 9332) Moreover, CEQA Guidelines section 15125, subdivision (a), requires a lead agency to not 25 IN SUPPORT OF PETITION FOR WRIT Ut 1i me ..fI 1 2 3 4 5 6 7 8 9 10 11 12 13 14! 151' 161 17 18 19 20 21 22 23 24 25 26 27 28 11FMY.'1I%R.Il3 MOJY mI t�V1EY.W Sxrti10 S �C19„I� only describe the physical environmental conditions as they exist at the time the NOP is published, but also requites the agency to evaluate the project's impacts upon the existing environment, (See Woodward Park Homeowners Assn, Inc. v City of Fresno (2007)150 Cal App. 4th 683, 706-07 (Woodward Park); see also 1 Kostka & Zischke, Practice Under the Cal.. Environmental Quality I Act (COnt.Ed.Bar' 2006) § 1.3 129.) Woodward Park is on point. There, the court explained why a similarly flawed analysis was invalid under CEQA: "CEQA nowhere calls for evaluation of the impacts of'a proposed project on an existing general plan; it concerns itself with the impacts of the project on the environment, defined as the existing physical conditions in the affected area" (Woodward Park, supra, 150 Cal.App 4th at p. 709 (citing Environmental Planning & Information Council v County of'El Dorado (1982) 131 Cal App.3d 350, 354).) 2. Irvine did not respond in good faith to comments pointing out anomalies in the traffic study's findings. the disparate results depicted in the 2010 noncumulative and 2010 cumulative table summaries, and the 2025 noncumulative and 2025 cumulative table srmtmalies defy logic. (Compare, e_g., MAR 4223 with id, at p. 4225 [showing less traffic at University/Campus in the 2010 cumulative with project condition than with the 2010 non -cumulative with project condition]; compare also id at p. 4235 with id. at p. 4237 [showing less traffic at University/Campus in the post -2025 cumulative with and without -project conditions than with the post -2025 non -cumulative with and without -project conditions]..) The traffic levels reported for the post -2025 cumulative conditions are the same or lower than for the post -2025 noncumulative conditions.. (See id at pp. 4235-37..) This result is impossible because Irvine has recently approved and is now considering applications for numerous residential projects in the IBC these projects must together have cumulative impacts. When the Cities commented upon the disparate results described above, Irvine responded that the traffic model used to forecast project impacts considered General Plan buildout as well as 9 / Attached hereto, for the Court's reference, as Exhibit B. IN SUPPORT OF 26 LKI7 FYW mYryebllpe ►'1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 81.AtY.ifbFN< MCG'E na TWM1EY.LLP 1„CV.IN 11,9mul�a 6m�, G,AW )ending projects that would require General Plan Amendments (Compare MAR 6249 with 6274- 15.) Irvine's response, however, did not explain, for example, why the model's results for ;umulative traffic conditions were lower than the results for non -cumulative conditions. 3. The traffic analysis improperly r'elied on unstated and unsupported assumptions regarding future construction of unidentified roadway improvements. Irvine's traffic impact analysis relied on the assumption that certain roadway and ritersection improvements will be in place by the years 2010, 2025 and post -2025. The traffic rtudy measured the Project's impacts upon facilities that do not exist, but are instead forecast to be ruilt in the City's General Plan and the Countywide Master Plan of'Artetial Highways. (MAR 5075-76.) the DSEIR did not identify the road improvements that were assumed to be in place at horizon years 2010, 2025, and post -2025, and thus omitted information essential to an adequate understanding of the Project's impacts. (See id. at p 4212 [traffic impact analysis, stating "facility types were taken from the [Irvine] General Pian and the countywide Master Plan of Arterial Highways"]; see also id. at p.. 6332 [original 2005 scope of'work, which indicates consultant will assume, for the purpose of analyzing Project impacts, 'Tuture conditions .... based on the roadway network and land use assumptions envisioned to be in place by the respective horizon years"]; id. see also at p. 5076 [2010, 2025, and -post 2025 traffic forecasting figures based on assumed road improvements specified in hvine's general plan].) Neither the DSEIR not Irvine's traffic consultants identified what road improvements were assumed to be in place. (See id at p. 4220..) In omitting this information, Irvine ignored mandatory requirements of its own Iraffic Study Guidelines.. Ihese Guidelines require that "[f]or interim conditions [i.e., year 20101, improvements funded by government agencies .... shall be identified. Ihis list would include the nature of the improvement project, its extent, implementation schedule, and the agency or funding responsible.... A list shall be provided showing the location of such facilities or projects." (MAR 93.33-34, italics added..) For buildout analysis (Le., post -2025) "the currently approved General Plan Arterial Highway Designation .. . and the County Master Plan of Arterial Highways ..shall be the basis for roadway improvement considered to be in place ... the network assumptions for the analysis years will be discussed in the report." (Id. at p 9334, italics added.) FOR WRrr OF MANDATE AND UOMYL AIN 1 itimNmP¢uledNp I 2 3 4 5 6 7 8 9 10 11 12 13 14 15', 16 17 18 19 20 21 22 23 24 25 26 27 28 nrMv,Yxows moosEae 1Ml6EY.LLP A GpW dLRswet�0 SaimY GA4U Instead of providing the detailed information that Irvine's Guidelines require, the traffic study report stated "the future conditions described below are based on the roadway network and land use assumptions envisioned to be in place by the respective horizon years" (MAR 5076) and "[p]toject impacts are identified at study area intersections for all future conditions, assuming improvements to the circulation system identified in the City's traffic model " (Id at p 5079.) Nowhere did Irvine disclose the assumed transportation system improvements. Irvine stated that the Project will contribute IBC traffic mitigation fees to help fund mitigation measures adopted in 1985 and 1992. (See MAR 6198-200.) Nothing in the record shows, however, that these fees will be used to construct the necessary improvements.. (See MAR 8941 [Development Agreement provision stating Irvine retains "sole and absolute discretion" concerning use of development fee funds].) Rather, the record indicates that numerous road improvements identified in 1985 and 1992 have not been implemented and at least one Irvine official has acknowledged that Irvine lacks funds to construct them. (See DVD 2C-01-000463 [e- mail from Marty Bryant, Irvine Deputy Director of Public Works, stating "the [IBC Fees] are inadequate to cover the cost of all the mitigations and the mitigations themselves, while they appeared reasonable in 1992, may not be adequate today"].) In view ofthe vagueness of this analysis, the Cities' traffic consultant requested that Irvine identify "[p]lanned infrastructure improvements" in its traffic study and DSEIR, but Irvine dismissed this and numerous other comments. (See MAR 7915-16 [comment letter from W -bans]; see MAR 8256 [staff report to Irvine City Council recommending "no revisions to the traffic analysis of the environmental document" in response to W -Trans' comments].) "A project's contribution is less than cumulatively considerable if the project is required to implement or fund its.fair share of a mitigation measure or measures designed to alleviate the cumulative impact. The Lead Agency shall identify facts and analysis suppotting its conclusion that the contribution will be rendered less than cumulatively considerable." (CEQA Guidelines, § 15130, subd.. (a)(3); see also (Save Out Peninsula Committee v Monterey County Bd. of Supervisors (2001) 87 Cal., App. 4th 99, 140 (Save Out Peninsula).) `But even where a developer's contribution to roadway improvements is reasonable, a fee program is insufficient 2s PETITIONERS' OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 2 3. 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RFM/.TIttYAAY. MPE^ Emi C 1M,p.yYef10 Sameb,G93W nitigation where, even with that contribution, a [lead agency] will not have sufficient funds to nitigate effects on traffic.". (Endangered Habitats League v County of Orange (2005) 131 -1a1.AppAth 777, 785 (citing Napa Citizens for Honest Gov't v Napa County Bd. of Supervisors ;2001) 91 Ca1..App.4th 342, .364)..) "CEQA requires that feasible mitigation measures actually be implemented as a condition if development, and not merely be adopted and then neglected or disregarded " Anderson Fir st Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1186-87 (Anderson First) (citing Federation of Hillside and Canyon Associations v City of Los Angeles (2000) 83 Cal.AppAth 1252, 1260-1261 (Federation Hillside) ) "When future traffic congestion will result from the cumulative impact of several projects, cumulative traffic mitigation measures for a single project (that is one of the several projects) may be deemed sufficient if those measures are based on a reasonable plan of actual mitigation that the relevant agency commits itself to implementing." (Anderson Fir st, supra, 130 Cal_AppAth at pp. 1186-87 (citing Napa Citizens, supra, 91 Ca1..App.4th at pp. 363-364, Save Our Peninsula, supra, 87 Ca1..App.4th at p. 141).) In Anderson First, the court found that the city improperly assumed that certain roadway improvements would be in place when concluding that the project in question would not have any significant cumulative traffic impacts. (Id at. p.. 1189 [cumulative traffic impacts analysis held inadequate because agency relied on uncertain funding and therefore had insufficient evidence to conclude that necessary road improvements would, in fact, be built]..) Here, too, the SEIR's traffic impact analysis concludes that the Project will have no significant impacts Ihis conclusion, however, is based on the assumption that numerous unspecified IBC road improvements called for in 1985 and 1992 will be in place. (MAR 5076, 79.) Because many of these mitigation measures have not been implemented, and there is no evidence to show Irvine has the funding and commitment to implement them, Irvine could not rely on these unspecified improvements to conclude the Project's traffic impacts would be mitigated.. A lead agency's adopted mitigation measures must be enforceable. (See Pub. Resources Code 21081..6, subd. (b).) While CEQA does not expressly require a public agency to find that . mitigation measures adopted for a project are feasible or that they will be implemented, CEQA 29 PE1TrIONERS' OPI.NINO BRIEF rN SUPPORT OF PETn9ON FOR WRrr of MANDATE AND COMPLAINT IfiaYwRgiMhp 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rsmv.nwnvs mass[ w ENMPV. LIP KSGpW meO. YNk:10 s,�'�e,uoau does require the agency to find, based on substantial evidence, that the mitigation measures are: "required in, or incorporated into, the project"; or that the measures ale the responsibility of another agency and have been, or can and should be, adopted by the other agency; or that mitigation is infeasible and overriding considerations outweigh the significant environmental effects. [Citations] In addition, the agency "shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures" [Citation] and must adopt a monitoring program to ensure that the mitigation measures are implemented [Citation]. The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. [Citation] (Federation of Hillside, supra, 8.3,Cal.AppAth at p, 1260-61, italics in original; see also Vineyard Area Citizens, supra, 40 Cal 4th at p.. 444.) CEQA requirements for enforceable mitigation are clear. Under CEQA, Irvine was required to provide that "measures to mitigate or avoid significant effects on the environment ate fully enforceable through permit conditions, agreements, or other measures." (Pub. Resources § 21081.6, subd. (b).) Deferral of mitigation is only permissible where the adopted mitigation measure both (1) commits the agency to realistic criterion that will ensure the mitigation of the significant effect, and (2) disallows the occurrence of'physical changes to the environment unless the criterion is or will be satisfied. (See CEQA Guidelines, § 15126.4, subd. (a)(1)(B); see also Endangered Habitats League, supra, 131 Cal.AppAth at pp.. 793-794.) While CEQA does not require that the EIR set forth a time -specific schedule for the lead agency to complete specified road improvements, it does require that the agency have a reasonable plan for mitigation. (Save Our Peninsula, supra, 87 Cal. App. 4th at p. 135 (citing Sacramento Old City Assn v City Council (1991) 229 Cat. App.. 3d 1011 (SOCA)); see also Anderson First, supra, 130 Cal. App, 4th 117.3, 1188.) In Save Our Peninsula, the court upheld a county's program of in Iieu fees for traffic mitigation because it found that the county's plan for mitigation was reasonable: that project's EIR specifically identified the measures that would be required and the approximate timeframe for their completion (See id at pp. 139-141.) liege, unlike the Elkin Save Our Peninsula, the SEIR does not identify the specific "problem areas" in the vicinity of the Project that will require timely implementation of traffic mitigation measures, 30 PETITIONERS' OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND COMPLAINT ri 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xE�+r.'nxxus �wcee+a ,MMtY.3lY .,SCaAbI Mtl15uYe110 Smmmm G 9S4V Irvine also failed to incorporate traffic mitigation measures from IBC PEIR, even though it imed from this prior EIR and explicitly relies upon implementation of these mitigation measures Nhen concluding that the Project will have no significant traffic impacts. When Irvine responded o Tustin's comment that the Project must participate in the IBC traffic mitigation program, Irvine ,laimed that the Project proponents would be required to pay IBC Fees. (MAR 6200) Ihis ;lain, however, appears disingenuous at best because it is not evidenced by the Project's adopted nitigation measures, which do not impose IBC Fees (see id. at p. 8753), the conditions of approval for the tentative tract map (see id at pp. 8781), nor with the approved development agreement, which does not require any of the imposed "development fees" to be spent on IBC roadway improvements. (Id at pp. 8940-42..) D. The SEIR does not Adequately Analyze or- Mitigate the Project's Parks Impacts 1. SEM parks impacts analysis is inadequate. a. Cumulative impact analysis is perfunctory and inaccurate. The DSEIR's discussion of cumulative impacts does not acknowledge the lack of parks within the IBC, nor does the DSEIR discuss the cumulative effects that past residential projects within the IBC have had upon recreation resources in hvine and in neighboring areas, including the Cities. (MAR 4207.) Instead, the DSEIR includes the conclusory, unsupported and factually inaccurate statement that "new parklands and trails ace developed as residential development occurs." (Ibid.) Irvine's failure to consider the impacts of past projects on park facilities in and around the IBC violated CEQA's obligation to analyze cumulative impacts. (See CEQA Guidelines § 15355, subd. (b); see also Environmental Protection Information Center v Johnson (1985)170 Cal App 3d 604, 624-625 [EIR must consider cumulative effects of past projects]..) b. Impact analysis fails to consider extra -jurisdictional impacts. Here, hvine did not even attempt to analyze and mitigate the Project's direct and cumulative impacts to the Cities' packs and recreation facilities, even though the Project and several other pending and approved projects would be located less than two blocks from Newport Beach's border . (MAR 4203-4207) The DSEIR's perfunctory analysis does not even analyze impacts to parks and recreation facilities within the Cities' respective jurisdictions.. (Ibid.) In 31 il, LOi7@R\ODIA1. �mrwema.aav 41 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asar.,xmunc uooser N.�M£Y.LIP msa�xwasw.no SV�eR.G➢S,li to Newport Beach's comments concerning the Project's potentially significant extra - impacts on parks, Irvine simply compared the facilities at one of its community parks and a few other recreation facilities within Orange County to Newport Beach's nearby parks (see id. at pp.. 6246-47, 6272-73 [Newport Beach comments and Irvine responses]), and thus did not provide a good faith response on this issue. (CEQA Guidelines, § 15088, subd.. (c) ) Irvine did not address how intensively these facilities are already used without the Project and the numerous approved but not yet built and pending projects. 2. The mitigation measures for parks impacts are inadequate. a. Irvine does not require mitigation for extra -jurisdictional impacts to parks and recreation. the California Supreme Court recently emphasized that a lead agency cannot side-step its duty to mitigate or avoid significant environmental effects of a project. (City of Mar ina v. Bd. of Trustees of Cal. State Univ (2006) 39 CalAth 341 (City of Marina).) In City of Marina, the Court ruled the respondent agency had abused its discretion in refusing to mitigate the off-site traffic impacts of the project (there, expansion of the Cal State Monterey campus) stating: Irustees are not thereby excused from the duty to mitigate or avoid [the proposed univetsity]'s off -campus effects on traffic or wastewater management, because CEQA requires a public agency to mitigate or avoid its projects' significant effects not just on the agency's own property but `on the environment' [citation], with `environment' being defined for these purposes as `the physical conditions which exist within the area which will be affected by a proposedproject' [citation] (City of Marina, supra, 39 Cal.4th at pp.. 359-60, quoting Pub.. Resources Code, §§ 21060.5, 21002. 1, subd. (b), italics in original.) In this case, the mitigation measures adopted for impacts to Irvine's parks include on-site private recreation amenities and, although the DSE1R does not specifically identify this as a mitigation measure, exaction of in4ieu fees for an as yet unplanned community park in the IBC. (Id. at p. 4207.) the on-site private recreational amenities, however, are inadequate as mitigation for neighborhood park impacts because the total area for on-site amenities is less than one third of an acre in size, as requited by Irvine's General Plan. (See id at p.. 3618, 3626; see also id. at p 9196 [General Plan: Table K-1].) Moreover, the in -lieu fees are inadequate to mitigate community 32 I.77MONERS" VPENING 13RIEF IN JUPPORT OF YETITION FOR W RIT OF MANDATE AND IemW mHc,dd Pap, 7 10 11 12' 13 14 15 16 17 18 19 20 21 22 )arks impacts because Irvine has not demonstrated (1) that there is land available for Irvine's rcquisition and conversion into paikland, and (2) that the exacted fees will be adequate to fund the project's share ofthe parkland's purchase and development costs. (Anderson First, supra, 130 �-al App.4th at pp. 1186-87.) Because these measures are inadequate to mitigate the Project's ecreation impacts within Irvine, the inevitable but unanalyzed impacts to the neighboring Cities' awks will be exacerbated. b. The claimed mitigation measures for the Project's impacts to parks are not enforceable. A lead agency may adopt a menu of potential mitigation measures, so long as the agency commits to achieving a specific performance standard (SOCA, supra, 229 Cal.App..3d at pp.. 1028-29.) Here, unlike the mitigation measures that were upheld in SOCA, Irvine adopted a mitigation measure for the Project's parks impacts that is incomplete and therefore unenforceable in its entirety . (See MAR 8753 [recreation mitigation measure omitting any reference to payment of in lieu fees].) Irvine stated in the DSEIR's recreation impacts analysis that the Project's impacts to parks would be mitigated, at least in part, through the Project's Park Plan. (See MAR 4206,) Irvine, however, did not include the in lieu fees that will be exacted for parks impacts in the enforceable mitigation measures adopted for the Project. (See MAR 6765.) The adopted Mitigation Monitoring Plan ("MMP") includes as mitigation only the provision that the onsite private recreation space be dedicated as a pzivate park in perpetuity. (See lbid) Ihus, hvine has failed to make the payment of in lieu fees enforceable as required by CEQA. Moreover, Irvine provides no assurance that a public park will actually be built in the IBC. The DSEIR does not analyze whether land is available for Irvine to purchase for a public park. This is analogous to the 23 elusive water supply for a groundwater recharge mitigation measure that the court invalidated in 24 Kings County Farm Bureau. (See 221 Cal..App3d at p. 728.) 25 C. Irvine's conclusion that the Project will not have significant parks and recreation impacts is based upon improperly deferred mitigation. 26 CEQA requires that mitigation measures "be `toughly proportional' to the impacts of the 27 project." (CEQA Guidelines, § 15126.4, subd. (a)(4)(B) [citing Dolan v. City of Tigard (1994) 483 28 33 PETITIONERS' OPINING BR1Er M SUPPORT OF PETMON FOR MAYIF W OpWvA M,B.Siwea10 Smn G>+u+ AND COMPLAR47 m.w®aez,we.wr 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1'7 18 19 20' 21 22 23 24 25 26 27 28 wxm.n�w.us uaomd 4V�VY.Ii➢ s,gabw no cn "W na I U S 374].) Furthermore, the approving agency has the burden to show that "it has considered the identified means of lessening or avoiding the project's significant effects" (rillage Laguna of I Laguna Beach, Inc v. Board of Supervisors (1982) 134 Cal.App..3d 1022, 1035 [agency violated CEQA by failing to adopt finding that proposed mitigation measures or alternatives were I infeasible]; San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984)155 I Cal..App3d 738, 752-753 [agency erred by not adopting findings on feasibility of alternatives]; see I also CEQA Guidelines, § 15126.4, subd_ (a)(2); Federation of Hillside, supra, 83 Cal.App.4th at I p. 1260 [remote and speculative mitigation measures insufficient]) A commitment to pay in -lieu fees without any evidence that mitigation will actually occur is inadequate.. (Kings County Farm Bureau, supra, 221 Ca1,App3d at p.. 727 [EIR inadequate in part because it concluded groundwater impacts were insignificant based on a mitigation agreement calling for the purchase of replacement groundwater, without indicating whether such water was available for purchase].) As the Anderson First court observed, "[a] single project's contribution to a cumulative impact is deemed less than significant if the project is required to implement or fund its `fair share' of'a mitigation measure designed to alleviate the cumulative impact. (130 CalApp.4th at p. 1188 (citing Guidelines, § 15130, subd_ (a)(3)).) Here, Irvine assumes that the in -lieu fees exacted for community park acquisition and development will fully mitigate the Project's park impacts. (See MAR 4206-07) The DSEIR's describes the mitigation measures in only vague and general terms and does not provide any analysis concerning whether the amount of in lieu fees called for in the Park Plan are adequate to mitigate the Project's impacts.. (See ibid) Irvine did not demonstrate that suitable parkland property in the vicinity of the Project is or will be available for purchase. the IBC has always lacked public parks. (IRV 3561; see also MAR 198 [acknowledging "there are no parks or public recreational amenities in the vicinity of the [P]roject"].) Irvine has approved numerous residential projects in recent years and.has exacted in - lieu fees for parks impacts, but Irvine has not created any parkland in the IBC with these funds. (See, e,g., DVD 2C-01-001219 [Planning Commission approval of park in -lieu fees for Central Park project], see also MAR 7653-7665 [Planning Commissioner Smith's expressed concerns regarding lack of parks in the IBC and inadequate in -lieu fees for parks impacts].) Irvine 34 GRIEF IN JUPPORT OF YETITION FOR WRIT OF MANDATE AND 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PID.tt. iXOMM14 Mf.[H W 61/tJLEY.I3P .s:�iwo. „onmao $anmm.. G 9»W ;ontinues to rely on existing parks in areas outside the IBC to serve IBC residents, but has not remonstrated that the existing facilities are adequate to meet the needs of current residents and the esidents of approved projects, including this Project. Moreover, even if Irvine can purchase an adequate site for a community park in the Project's vicinity, the amount of in lieu fees exacted me not adequate because Irvine has severely underestimated the anticipated number of Project residents Irvine's park dedication requirements for this and previous projects were based on an estimated number of Project residents (See MAR 4206 [)SEIR recreation impact analysis stating park dedication requirements were based upon a population genetation factor ("PGF") of 1..3 residents per unit]; see also DVD 2C-15-000265-69 [Irvine resolution updating park dedication standards].) Had Irvine used the results of recent survey to calculate the number of Project residents, Irvine would have estimated 153 Project residents rather than 107. (Compare ibid with DVD* B-00-002597 [September 2005 IBC Survey estimate concluding IBC residences average 1.86 residents per unit]; see also id at p. B-00- 002595 [Irvine IBC website statement: "results of [2005 IBC Survey] will be used in the City's IBC Planning efforts to address issues such as recreational opportunities.. 1; see also MAR 7935-36 [Allergan letter describing Alfred Gobar Associates' Report regarding IBC residents] ) V. CONCLUSION Irvine has embarked on the path of transforming the IBC into a mixed-use, residential area, without performing a comprehensive analysis of the impacts of'such a transformation. the analysis of the Martin Street Project exemplifies this approach_ As a result ofthis piece -meal approach, Irvine has not met its obligations under CEQA.. Petitioners respectfully request that the Court grant the petition. November 12, 2007 REMY, IHOMAS, MOOSE AND MANLEY, LLP By: fM+ -- �, && Whitman F. Manley Jason W Holder Counsel for Petitioners/Plaintiffs CITY OF NEWPORI BEACH and CITY OF IUSTIN 100016764 DOC; 8) 35 Drr,r. nwmne• hvrnimin RR,pp int CI IPmRT op PETmoN FOR WRrr of MANDATE AND COMPL AMT I.wlm Rsnl.ENp [*XIIMIWA 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed..Bar 2003) section 11.4 RL 10!, �--'I *Vi�r � 44�. 1 MIL - Nd Mulvey, Jennifer From: City Clerk's Office Sent: Monday, January 11, 20213:53 PM To: Mulvey, Jennifer; Rieff, Kim Subject: FW: 7 of 7 Olen Comment Letter on Residences at 4400 Von Karman Attachments: Overflowing Drainage.pdf, RE: Transmission of 1,000 Page Document From: Geoffrey Willis Sent: Monday, January 11, 2021 3:53:14 PM (UTC -08:00) Pacific Time (US & Canada) To: City Clerk's Office Subject: 7 of 7 Olen Comment Letter on Residences at 4400 Von Karman [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. City Clerk: Attached please find part 7 of 7 of the Olen Comment letter regarding the 4400 Von Karman hearing scheduled for January 12, 2021. Please make this available to the Mayor and the City Council. Also attached find the hyperlinks for the Uptown Newport DEIR and FEIR. We would like this EIR and its Appendices included in the record. Attached is an email from the City Clerk directing us to provide the links since the City can't physically accept the documents. Thanks Geoff Willis https://www.newportbeachca.gov/pin/CEQA REVIEW/Uptown%20Newport/DEIR September 2012/01 Volume I DEIR/DEIR U� 2012. df https://www.newportbeachca.gov/pin/CEQA REVIEW/Uptown%20Newport/DFEIR November%202012/Draft%20Final%20EIR.pc https://www.newportbeachca.gov/pin/CEQA REVIEW/Uptown%20Newport/DFEIR November%202012/Draft%20Final %20EIR.pdf