The following is provided in response to the comment letter from Rebeca L. Davis, Lozeau Drury LLP on behalf of SAFER , dated August 29, 2022. The letter makes four statements, addressed below. In summary, t he comments received do not result in the need to prepare additional environmental documents.
a. The comment states that CEQA Guidelines Sections 15164 and 15162 apply only when a project has recently undergone CEQA review. There is no provision in CEQA Guidelines Sections 15164 and 15162 that requires a “recent” CEQA review for tiering purposes.
The ocV!BE project is in the Platinum Triangle area of the City of Anaheim, pursuant to implementation of the Platinum Triangle Master Land Use Plan (PTMLUP) and Platinum Triangle Mixed Use (PTMU) Overlay Zone, and development within the PTMLUP has been analyzed previously by the environmental documents listed under Section 1.3, Certified Environmental Documents, of the Addendum, including the Final Environmental Impact Report (FEIR) No. 320, FEIR No. 321, FEIR No. 330, and FEIR No. 339. In Friends of Coll. of San Mateo Gardens v. San Mateo County Cmty. Coll.
Dist. (“San Mateo Gardens”) (2016) 1 Cal.5th 937, 950., the Supreme Court found that the threshold whether to rely on previously-approved CEQA document should focus on the “effect: of the change and not “abstract” characterizations of the project as ‘new’ or ‘old.’ The Addendum substantiated that the Modified Project would not meet any of the conditions specified in Section 15162 and the Addendum was prepared in compliance with Section 15164.
The previous environmental documents for the Platinum Triangle analyzed e nvironmental impacts associated with 18,909 dwelling units, 4,909,682 square feet of commercial, 14,340,522 square feet of office, and 1,500,000 square feet of institutional uses in an approximately 820-acre area surrounding Angel Stadium of Anaheim, the H onda Center, and the Grove of Anaheim. The Modified Project includes similar types of uses and would result in 18,056 dwelling units, 6,195,019 square feet of commercial, 11,659,338 square feet of office, and 250,000 square feet of institutional uses. The Addendum substantiated that these changes within the Platinum Triangle would not increase the severity of previously identified environmental impacts considered in FSEIR No. 339, and would not result in substantial changes from the previous analysis. The PTMLUP does not name specific projects but allows total maximum development intensities for each district. The Platinum Triangle is envisioned as “an established destination featuring highrise lofts, two championship sports teams, an exciting array of dining and entertainment, plus immediate access to the rest of Southern California from three freeways and a major transit center .” The Platinum Triangle was intended to provide millions of square feet of new development opportunities for office, restaurant and residential projects, thereby create “an urban environment of a scale never before seen in Orange County.” Consistent with the Platinum Triangle’s vision and intention, the ocV!BE project would provide a world-class mixed use lifestyle, entertainment, and residential neighborhood. Preparation of an Addendum is appropriate for the ocV!BE project. The ocV!BE project implements the vision established by the Platinum Triangle Master Land Use Plan as analyzed in SEIR No. 339, and is not considered a “new” project.
Furthermore, projects often require multiple discretionary approvals from an agency. (Guidelines § 15378(c) [“The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by government agencies. The term ‘project’ does not mean each separate governmental approval.”].) In recognition of that fact, the Guidelines provide that “[w]ith private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary . . . permit, license, certificate, or other entitlement for use of the project.” (Guidelines § 15352(b); see, e.g., City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1716–17, 1720 [project approval occurred upon county’s authorization of lease negotiations, not later execution of lease]; Citizens For A Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 104, 106-07 [rejecting claim that “‘overall project approval’ occurred only after approval of . . . design review” and finding project was approved by earlier resolution authorizing execution of development agreement]; Van de Kamps Coalition v. Board of Trustees (2012) 206 Cal.App.4 th 1036, 1039 [project approval occurred upon board’s approval of plan to lease property, not later approval of lease].) Once a project is approved, CEQA does not require that it be analyzed anew every time another discretionary action is required to implement the project. Quite the opposite, where an EIR has previously been prepared for a project, CEQA expressly prohibits agencies from requiring a subsequent or supplemental EIR, except in specified ci rcumstances. (Pub. Res. Code § 21166.) Specifically, as further explained in the CEQA Guidelines, an agency may not require a subsequent EIR unless:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
(3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows [that the project will have new or more significant impacts or that the project’s significant impacts could be reduced by mitigation measures or alternatives that have not been adopted].
(CEQA Guidelines, § 15162(a).) As explained by the CAAP court, “Section 21166 come s into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [cite] and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” ( CAAP, supra, 227 Cal.App.4th at 796.)
Where some changes or additions to a previously certified EIR “are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred,” an agency is to prepare an addendum to the EIR. (CEQA Guidelines, § 15164(a); see Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 958 [“When there is a proposal to modify a project original ly approved through EIR, no ‘major revision’ to the initial EIR is required if the initial EIR already adequately addresses any additional environmental effects that may be caused by the proposed modification.”].) For the reasons stated in the Addendum, th e Modified Project would fulfill none of the conditions outlined in CEQA Guidelines Sections 15162(a)(1) to (3) because the changes to the Approved Platinum Triangle Project would not result in any new or more severe significant environmental effects.
Accordingly, this Addendum provides the substantial evidence required by CEQA Guidelines Section 15164(e) to support the finding that a subsequent or supplemental EIR is not required and an addendum to the Certified EIR is the appropriate environmental document to address changes to the Platinum Triangle project.
b. CEQA Guidelines Section 15164 does not limit the preparation of an Addendum to a previously certified “Project” EIR. Section 15164(a) states “The lead agency or responsible agency shall prepare an addendum to a previously certified EIR [emphasis added] if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.” A program EIR was prepared for the PTMLUP , which can be characterized as one large project. It is incorrect to assert that an Addendum can only be prepared if the previous EIR was a Project EIR, and not a Program EIR. c. The Addendum is to SEIR No. 339 as stated in the title, “Addendum No. 11 to SEIR No. 339, ocV!BE Project, DEV2020 -00125.” However, because there were previously certified EIRs prior to certification of SEIR No. 339 which SEIR No. 33 9 relied on, these other certified documents were also referenced and incorporated by reference a s “Previous Analysis.” The Addendum summarizes impacts identified in the previous analysis, SEIR No. 339 and provides project -specific analysis substantiating how the ocV!BE P roject would not result in new significant impacts or increase the severity of impacts identified in SEIR No. 339 pursuant to CEQA Guidelines Section 15162.
The Addendum does not fail as an informational document. As stated above, the Addendum clearly states that the Addendum is to SEIR No. 339. There are other previous and subsequent documents to SEIR No. 339 that make up “Previous Analysis” considered in the Addendum. CEQA Guidelines Section 15164(e) states that “ A brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162 should be included in an add endum to an EIR, the lead agency‘s findings on the project, or elsewhere in the record. The explanation must be supported by substantial evidence.” Addendum Section 3, Project Description , clearly provide what’s being proposed, and does not lack any clarity as what is actually being proposed as asserted by the comment. SEIR No. 339 analyzed environmental impacts from the buildout of the PTMLUP with maximum development densities and the ocV!BE Project analyzed impacts from implementation of ocV!BE Project as described in Section 3 of the Addendum. The Addendum compares the Approved Project as analyzed under SEIR No. 339 to the Modified Project, not to the existing condition as it stands today. Therefore, the Addendum is not required to consider what portion of the previously studied projects have been built or are still planning to be built. The decision makers are also considering modifications to an Approved Project and environmental impacts resulting from the change, not a new project and its impacts. The decision makers were given adequate information to intelligently assess the Modified Project’s environmental impacts.
d. The ocV!BE Project proposes to increase the maximum residential development from 17,501 dwelling units to 17,840 dwelling units, however, SEIR No. 339 analyzed impacts from analyzed environmental impacts associated with 18,909 dwelling units . Furthermore, while the maximum residential and commercial development intensiti es would increase, the ocV!BE Project would decrease office and institutional development in the Platinum Triangle so that the severity of impacts identified in SEIR No. 339 are not exceeded. The approximately 8 acres designated as open space by the City’s General Plan are former equestrian facility and parking lot for the Phoenix Club and are zoned C -G General Commercial. The proposed change in land use to Mixed -Use Urban Core General Plan land use designation and other impacts have been analyzed by the Addendum, and impacts were found not to result in substantial changes from the previous analysis. The comment does not substantiate how the Addendum fails to provide adequate analysis.
August 29, 2022
VIA EMAIL
David Vadodaria, Chairperson
Lucille Kring, Chairperson Pro Temp
Michael B. Mouawad, Member
Steve White, Member
Lui Andres Perez, Member
David R. Hywood, Member
Natalie Meeks, Member
Planning Commission
City Anaheim
200 S. Anaheim Blvd., Suite 162
Anaheim, CA 92805
[email protected]
Scott Koehm, Principal Planner
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
[email protected]
Re: Comment on OC VIBE Mixed-Use Project – Development Project No. 2020- 00125; Addendum No. 11 to Final SEIR No. 339; Planning Commission Agenda Item No. 1
Dear Chairperson Vadodaria and Honorable Members of the Planning Commission:
I am writing on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”), regarding the ocV!BE Project (DEV2020-00125) including Addendum No. 11 to SEIR No. 339 and related approvals requested (the “Project”), listed as Agenda Item 1 on today’s Planning Commission hearing agenda.
SAFER objects to the City staff’s reliance on the SEIR No. 339 and now 11 addendum to the SEIR pursuant to the California Environmental Quality Act (“CEQA”) Guidelines Section 15162 for the Project. The City’s proposed CEQA review is inadequate because the Project was not analyzed in the SEIR and addenda, and the project-specific impacts generated by the proposed Project must be analyzed and mitigated in a project-level EIR. SAFER requests that the Commission not take any action until an EIR is prepared for the Project.
I. PROJECT DESCRIPTION
The applicant proposes to construct ocV!be, a world-class mixed use lifestyle, entertainment, and residential neighborhood anchored by the existing Honda Center arena and ARTIC transit hub, and including a new approximately 5,700 seat live performance theater, 1,500 residential apartment units, including 195 affordable units, two hotels with a total of 550 August 29, 2022
SAFER Comment on ocV!BE (DEV2020-00125)
rooms, an approximately 4 acre public park, private parks and open space, office buildings, restaurants and entertainment venues, and an approximately 6,000 seat outdoor amphitheater. At the core of the Proposed Project is the Master Site Plan.
The Master Site Plan (MIS 2020-00751) includes the area around and including the Honda Center, the ARTIC, and the ACC. The Master Site Plan outlines the proposed development for the entire site and would be implemented through individual Final Site Plans.
The Master Site Plan contains the Transit District and the Arena District in the Platinum Triangle Master Land Use Plan. The applicant has designated sub-areas of these districts for development.
The area north of Katella Avenue is proposed to be consolidated into one District – the Arena District. The area south of Katella Avenue would be part of the Transit (currently ARTIC) District, with the exception of the southwest corner of Katella Avenue and Douglass Road (Ayers Hotel) which would remain in the Katella District, Sub-Area D.
The Project consists of the following:
• 1,922,776 square feet (s.f.) of commercial uses including entertainment and commercial indoor and outdoor recreation venues (including new indoor and outdoor live performance theaters, bars and nightclubs, bowling lanes, dancing venues, an amphitheater and outdoor seasonal events), retail, and restaurant uses including the existing Honda Center;
• 961,055 s.f. of office uses including the existing Arena Corporate Center; • 250,000 s.f. of institutional uses including the existing Anaheim Regional Transportation Intermodal Center (ARTIC);
• 1,500 residential dwelling units including 195 affordable dwelling units proposed in connection with a Density Bonus request;
• parks and open space including a new public park (Meadow Park); • parking areas;
• pedestrian bridges crossing Katella Avenue and Douglass Road; and, • changes to the roadway network (including a new public street between Katella Avenue and Ball Road proposed to be named River Road, the abandonment of Douglass Road between Katella Avenue and Cerritos Avenue and new private streets).
The Project includes, inter alia, the following applications and approvals:
• General Plan Amendment (GPA2020- 00532) to amend the General Plan Land Use, Circulation, and Green elements to, inter alia:
o
change the designation of parcels located north of Katella Avenue from Office - Low (approximately 31 acres) and Open Space (approximately 8 acres) to Mixed- Use Urban Core;
o modify the total amount of development permitted in the Platinum Triangle to:
increase the amount of residential development to 17,840 dwelling units, increase the amount of commercial development to 6,195,019 s.f., decrease the amount of office development to 11,659,338 s.f. and decrease the amount of institutional development to 250,000 s.f.; • Platinum Triangle Master Land Use Plan Amendment (MIS2020-00739) to, inter alia:
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SAFER Comment on ocV!BE (DEV2020-00125)
o expand the boundaries of the Platinum Triangle Mixed Use (PTMU) Overlay Zone by approximately 8 acres,
o change boundaries of the ARTIC (Transit), Katella Sub-Area D, Office and Arena Districts; and
o modify the permitted amount of development within the PTMU Over lay Zone to up to 17,840 residential dwelling units, 6,195,019 s.f. of commercial development, 11,659,338 s.f. of office development and 250,000 s.f. of institutional development.
• Reclassification (RCL2020-00333) to, inter alia:
o reclassify parcels to apply the Platinum Triangle Mixed Use (PTMU) Overlay Zone to the existing O -L (Low Intensity Office) Zone on approximately 31 acre s and the existing C-G (General Commercial) Zone on approximately 8 acres within the proposed Arena District north of Katella Avenue.
• Anaheim Municipal Code Amendments (ZCA2020-00174) to, inter alia:
o Modify Chapter 18.20 (Platinum Triangle Mixed Use (PTMU) Overlay Zone); Chapter 18.38 (Supplemental Use Regulati ons); Chapter 18.40 (General Development Standards); Chapter 18.60 (Procedures) and, Chapter 18.62 (Administrative Reviews) to amend:
use classifications,
District names,
development intensities,
development standards, and
procedures to allow development within the Arena and Transit Districts in the Platinum Triangle Mixed Use Overlay Zone.
• Addendum No. 11 to SEIR No. 339.
II. DISCUSSION
a. The City Cannot Adopt a CEQA Addendum for the Project Because the Project was not analyzed in the SEIR.
The City is wrong in concluding that the Project can be analyzed under CEQA Guidelines Section 15164 and 15162 because those sections are only applicable when a project has recently undergone CEQA review. As the California Supreme Court explained in San Mateo Gardens, subsequent CEQA review provisions “can apply only if the project has been subject to initial review; they can have no application if the agency has proposed a new project that has not previously been subject to review.” (Friends of Coll. of San Mateo Gardens v. San Mateo County Cmty. Coll. Dist. (“San Mateo Gardens”) (2016) 1 Cal.5th 937, 950.) Agencies can prepare addendums for project modifications or revisions and avoid further environmental review, but only if the project has a previously certified EIR or negative declaration. (See Save our Heritage v. City of San Diego (2018) 28 Cal.App.5th 656, 667.)
If the proposed Project had already been addressed in the SEIR, the standard for determining whether further review is required would be governed by 14 CCR §15162 and Pub.
Res. C. §21166, and an addendum could potentially be allowed under § 15164. These sections are inapplicable here, however, because the proposed Project has never undergone CEQA August 29, 2022
SAFER Comment on ocV!BE (DEV2020-00125)
review. Neither an EIR nor a negative declaration was prepared for the Project, and the Project was never mentioned or discussed in the SEIR. The SEIR did not analyze “ a world-class mixed use lifestyle, entertainment, and residential neighborhood, including a new approximately 5,700 seat live performance theater, 1,500 residential apartment units, including 195 affordable units, two hotels with a total of 550 rooms, an approximately 4 acre public park, private parks and open space, office buildings, restaurants and entertainment venues, and an approximately 6,000 seat outdoor amphitheater.” As a result, the City cannot rely on the subsequent review provisions of CEQA Guidelines sections 15162 or 15164.
b. CEQA Requires the City to Prepare a Tiered EIR for the Project instead of an Addendum.
The City has incorrectly applied the CEQA criteria for preparing an addendum when, instead, the City should have applied CEQA’s tiering provisions. The City relies on CEQA Guidelines section 15164, which applies to preparing an addendum to an existing EIR for a project. However, the SEIR was not a project-specific EIR, which the CEQA Guidelines define as an “EIR [which] examines the environmental impacts of a specific development project.” (14 CCR § 15161.) Rather, the SEIR was a Programmatic EIR (See SEIR, p. 1-4.) The CEQA Guidelines define programmatic EIRs as:
. . . an EIR which may be prepared on a series of actions that can be characterized as one large project and are related either:
(1) Geographically,
(2) As logical parts in the chain of contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.
(14 CCR § 15168.) Thus, instead of proceeding under the provisions of CEQA Guidelines section 15164, the City should have proceeded under section 15168 provisions for subsequent analysis for a Program EIR rather than an addendum to an existing project-specific EIR.
c. The Addendum and SEIR Fail as an Informational Document under CEQA.
The Addendum states:
Since 1996, the City of Anaheim (City) Council has approved actions and CEQA environmental documents relating to the Platinum Triangle and the Project Site. For the purposes of the environmental analysis in this document, “Previous Analysis” includes all of the CEQA environmental documents described in this section and incorporated by reference.
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SAFER Comment on ocV!BE (DEV2020-00125)
(Addendum, p. 4.) It then lists eight separate EIR and MNDs it claims are part of the “Previous Analysis” but never specifies what portions of which EIRs the Addendum is relying on. This is made more confusing by the fact that the Addendum claims to be an Addendum to an entirely different ninth EIR – SEIR 339.
The Addendum fails as an informational document. As an initial matter, it is unclear whether the City is claiming that the Addendum is to SEIR 339, or is an Addendum to some combination of other EIRs, MND, and prior addendums. Moreover, the Addendum lacks any clarity as to what is actually being proposed, what portion of the Project the Addendum claims has or has not already been analyzed under CEQA and in which CEQA documents the analysis is located, and what portion of any of the previously studied projects have actually been built or are still planning to be built. Without this information, the public and decision makers lack the information needed to intelligently assess the Project’s environmental impacts.
d. An Addendum is improper because the Project will have new and more significant environmental impacts than those previously analyzed.
The Project proposes to increase the maximum development within the PTMU Overlay Zone from 17,501 residential units to 17,840 residential units. It also seeks to change the land use designation for 8 acres of land from open space to mixed-use urban core. These and other modifications and development proposed as part of the Project will have significant environmental impacts that must be analyzed in an EIR. The Addendum does not include an analysis of these revisions and others that may have significant environmental impacts.
CONCLUSION
For the above and other reasons, the City must prepare an EIR to analyze and mitigate the impacts of the Project. The City may not rely on the SEIR which did not even analyze the proposed Project.
Sincerely,
Rebecca L. Davis