From: Sarah Bova
To: [email protected]
Subject: GPA No. 21-004, ZMA NO. 21-003, TA NO. 22-005, CUP NO. 21-024, EIR NO. 21-004 / Supplemental Letter for CC Tuesday December 19th
Date: Monday, December 18, 2023 4:33:24 PM
Attachments: image001.png
Thienes Letter to City Council.pdf
Good afternoon,
Please see attached additional Supplemental Letter for the City Council Hearing being held on December 19th 2023. Please note, this is in addition to the supplemental letters provided by two additional law firms.
Sarah Bova
THIENES ENGINEERING, INC.
14349 Firestone Blvd. | La Mirada, CA | 90638
Telephone: (714) 521-4811 x246 | Fax: (714) 521-
4173
[email protected]
December 15, 2023
Honorable City Council Members
City of Huntington Beach
2000 Main Street,
Huntington Beach, CA 92648.
RE: Land Use and CEQA Analysis, Bolsa Chica Senior Living Project, Huntington Beach
Dear Honorable City Council Members,
I requested Terra Nova to complete an analysis of t he land use and environmental analysis prepared by the City of Huntington Beach f or the Bolsa Chica Senior Living Project. Our analysis consisted of a comprehensive review of the Planning Commission staff report and attachments for the meeting of Sep tember 26, 2023, and the project Environmental Impact Report (EIR).
Project Description
The Bolsa Chica Senior Living Project (Project) would result in the development of a five story, 298,000 square foot, 202 unit senior living project on 3.1 acres at the southwest corner of Bolsa Chica Street and Warner Avenue. The project also includes 189 parking spaces (0.9 space per unit), multiple “lounges,” mu ltiple dining areas, a theater, a gym, salon and spa, offices and outdoor courtyards, incl uding a pool. The 202 units include 102 independent living units providing 1, 2 or 3 be drooms; 72 assisted living units providing one and two bedrooms; and 28 memory care units, one of which is a double room, and the balance are single rooms. The facilit y would employ 110 full time employees.
The Project site is currently designated Commercial General, and is occupied by a functioning commercial center. The Project proposes the demolition of the commercial center to make way for the mixed use development.
A. Land Use Analysis
The Project cannot be constructed on the site under current City General Plan and Zoning standards. The Project therefore proposes:
1. A General Plan Amendment (GPA) from Commercial G eneral to Mixed Use, with a Specific Plan Overlay.
2. A Zone Change from Commercial General to Mixed U se.
3. A Zone Text Amendment to add the Bolsa Chica Spe cific Plan to allow the development of the Project.
4. A Conditional Use Permit (CUP) to allow the use of a senior housing project.
The applications were processed concurrently, and t he Planning Commission acted to approve the CUP, and recommend certification of the EIR, the GPA and the Zoning Map and Text amendments for approval by the City Council.
The analysis and conclusions of the staff report, a nd resulting actions by the Planning Commission are flawed, and cannot be supported.
1. The Basis for Compatibility of the Project is Fl awed
The staff report uses a list of General Plan goals to support the required General Plan Amendment, without providing substantial evidence t hat the Project is consistent with those goals. Of particular concern is the statement that the “proposed convalescent facility is compatible in proportion, scale, and ch aracter with the surrounding land uses because the proposed building is similar in height and massing to other multi-story senior living facilities in the City that are adjacent to residential uses.” This statement in essence abandons proper land use compatibility analysis, which is by its very nature site-specific, by stating “we’ve made the mistake of putting overly large structures next to low-rise, low- intensity development in the City before, so we can do it again.” The staff report does not address the Project site and its surroundings at all. In this case, a low-rise, multi-building commercial center which is of similar scale and mass to the surrounding single and multi- family projects is being replaced by a massive, 72 foot monolithic behemoth (measured from the intersection of Bolsa Chica and Warner to the top of the building parapet) that will overshadow and overwhelm the neighborhood. The staff report simply lists convenient goals and policies, without analysis or interpretation to support a GPA. For example, the staff report lists Policy LU-1D as supporting the P roject, but never addresses how the Project is “of compatible proportion, scale, and character to complement adjoining uses.” There is no analysis to explain how the Project is compatible with adjoining single-story single-family homes, or two-story multi-family unit s which surround the Project site on three sides. This failure to properly analyze the c ompatibility of the Project, and its requested GPA, make it impossible for the City to m ake findings in support of this proposal.
The staff report also conveniently avoids goals and policies with which the Project cannot comply, including:
Policy LU-2B.: Ensure that new and renovated struct ures and building architecture and site design are context-sensitive, creative, complementary of the city’s beach culture, and compatible with surrounding development and public spaces.
Policy LU-2D.: Maintain and protect residential neighborhoods by avoiding encroachment of incompatible uses.
Goal H-1: Maintain and enhance the quality and affo rdability of existing housing in Huntington Beach.
Policy H1.1: Preserve the character, scale and qual ity of established residential neighborhoods.
Clearly, the staff report ignores the General Plan’ s strong statements in support of the preservation and protection of existing neighborhoo ds because these statements do not support the proposed Project, and would undermine the findings required to approve the Project. This approach is improper and inappropriat e for a thorough and comprehensive analysis of a General Plan Amendment.
Further, if the findings cannot be made for the Gen eral Plan Amendment, as is the case here, then no consideration of the Zone Change, Specific Plan or Conditional Use Permit can occur, since the GPA is the critical required approval.
2. The Staff Report Significantly Underestimates th e Intensity of the Project.
Beyond the significant shortfall in General Plan compatibility analysis, the analysis of the Project itself is insufficient. The staff report ch aracterizes the project as a 202-unit development, with 102 independent living units, 72 assisted living units and 28 memory care units. What the staff report fails to disclose and analyze, however, is that more than half of those units – 106 to be specific and could be increased if the developer chooses – will have multiple bedrooms. In the case of the i ndependent living units, only 54 units will have one bedroom, while 48 will have 2 or 3 be drooms. Of the assisted living units, 54 will be studios or 1 bedroom, and 18 will be 2 b edrooms. This underestimation leads to potentially significant under-analysis of actual Project conditions, including the need for adequate parking. This underestimation also signifi cantly affects the environmental analysis, as described separately below.
As it relates to the land use at the site, the Project is characterized as a congregate care facility, with limited resident activity, particularly off-site. However, with 66 units having 2 or more bedrooms, this assumption is invalid. Bedro oms are provided to allow residents to accommodate roommates or guests, thereby raising the demand for parking and services at the site. The following Table illustrat es the potential population at the Project under full occupancy conditions.
Table 1
Potential Project Population/Intensity
Unit Type Beds/Bedrooms Persons/Bed or
Bedroom
Total Population
MC – Double 1 2 2
MC – Single 27 1 27
AL – Studio 12 2 24
AL – 1 Bedroom 42 2 84
AL – 2 Bedroom 12 2 24
AL – 2 Bedroom + 6 2 12 or 18*
IL – Studio 6 2 12
Table 1
Potential Project Population/Intensity
Unit Type Beds/Bedrooms Persons/Bed or
Bedroom
Total Population
IL – 1 Bedroom 54 2 108
IL – 2 Bedroom 22 2 44
IL – 2 Bedroom + 18 2 36 or 48 *
IL – 3 Bedroom 2 2 4
Total 202 units 377 or 428
MC: Memory Care. AL: Assisted Living. IL: Independent Living *2 + den can be assumed to allow a sleeper sofa for 2 additional residents/guests.
The Memory Care units are not at issue. These resid ents will not drive, will be in a controlled environment, and will not impact parking or traffic in the area. However, the Assisted Living and Independent Living units will function much more like apartments than nursing home beds, given that these units offer mul tiple bedrooms and living configurations.
First, it must be assumed that the majority of the Assisted Living and Independent Living studios and 1 bedroom units will be occupied by 2 p eople. However, the 18 2 bedroom Assisted Living Units, and 42 2 and 3 bedroom Indep endent Living units could be occupied by 4 or even 6 people. Neither the staff r eport nor the Specific Plan describes any residential restrictions. There is no need for additional bedrooms if residents are not allowed roommates or guests. It must therefore be a ssumed that both Assisted Living and Independent Living units could be occupied by multiple persons in multiple bedrooms, with multiple vehicles requiring multiple parking spaces.
The Project provides only 189 parking spaces to acc ommodate both employees and residents. The staff report simply states that the parking ratio is inconsistent with the City’s zoning ordinance, but that a parking study not appe nded to the Planning Commission materials exists, with which staff agrees. That parking study clearly does not consider the multiple bedrooms provided within the Project, the needs of roommates and guests, or the employees on-site. Although no data is provided on maximum and minimum shift employees, conservatively, the maximum shift would result in about 30 to 35 employees.
Additionally, with every 2 residents, roommates and guests of the Assisted and Independent Living units having a car, there is a n eed for 204 (30 employees plus 348 residents divided by 2) to 235 (35 employees plus 3 99 residents divided by 2) parking spaces, without accounting for visitor parking for non-resident activity (friends coming for dinner or a party, for example). The parking struct ure is therefore deficient by 15 to 61 spaces, depending on the intensity of residency at the Project. Should any unit’s residents have one car per resident, which is particularly likely in the Independent Living units, the parking shortfall will grow exponentially.
Since the site would be significantly over-built, there is no place for any additional parking within the Project site, and on-street parking will be the only option, in an area where it is not available currently. The Project plans will imp act the neighborhood in a manner that the Planning Commission did not consider or attempt to mitigate. Furthermore, as described in the analysis of the EIR provided below, the underestimation of the Project’s potential population led the EIR to significantly u nderestimate the impacts of the Project on the environment.
3. The Conditional Use Permit Cannot be Approved wi thout a Certified EIR
The Planning Commission did not have the authority to approve, or conditionally approve the CUP on September 26
th . By doing so, the Planning Commission violated CEQ A. As clearly stated in CEQA Guidelines Section 15004(a):
“Before granting any approval of a project subject to CEQA, every Lead Agency or Responsible Agency shall consider a final EIR or Negative Declaration…”
CEQA was established specifically to allow the publ ic and decision makers to consider all potential impacts of a project before they determine to approve the project. In this case, the Planning Commission, which has the authority under CEQA to certify the EIR for the Project, did not do so and instead only recommended certification to the City Council.
Without first determining, through certification, t hat the EIR addressed all environmental impacts of the Project, and that all feasible mitigation measures have been implemented, the Conditional Use Permit cannot be acted upon. Th is violation of CEQA is further compounded by the Planning Commission’s violation of California land use law, which is separately described below.
4. The Conditional Use Permit Was Approved Improper ly
As described in subsection A.3., the Planning Commission acted improperly under CEQA when it approved the CUP without first certifying t he EIR. In addition, the Planning Commission approved a Conditional Use Permit for a use not permitted in the Commercial General land use or zoning designation, and not meeting Commercial General development standards. Instead, the Plannin g Commission assumed that the City Council would approve the General Plan Amendment, Zone Change and Zone Text Amendment (Specific Plan), and based its findings o n those amendments. Such pre- determination is not allowed under State planning law.
The City had two options in this case:
1. If the General Plan Amendment, Zone Change and Z one Text Amendment were approved, the Planning Commission could have recommended to the City Council that the Conditional Use Permit be approved only after the Zone Text Amendment took effect (30 days after 2
nd reading of the Zone Change and Zone Text
Amendment ordinances, when the Specific Plan would take effect). Or,
2. The Conditional Use Permit should not have been heard until after the approval of the General Plan, and the effective date of the Zon e Change and Zone Text Amendment.
In this case, the Planning Commission’s approval is particularly inappropriate, because it was approving a CUP – a permit which by definition requires that land use compatibility be considered as a significant part of the process. This is not merely a review of the architecture and landscape plans, but a review of whether the Project’s use is appropriate for and compatible with the location, given the designations in effect at the time the CUP is considered. In this case, a senior living facility is not compatible under the Commercial General designation, and the findings required cann ot be made. The staff report admits this, for example, on page 10, where it states that the Project exceeds the Commercial General height standard of 50 feet. The only way th at the Project’s height can be approved is with approval of the Specific Plan, whi ch the Planning Commission has no authority to approve. By approving the Conditional Use Permit based on findings that did not exist on September 26 th , the Planning Commission invalidated its approval, and that approval must be rescinded.
B. EIR Analysis
The EIR analysis of the Project suffers from the same underestimation of use as the staff report for the Project. The EIR actually worsens th e underestimation, by basing its assumptions on one resident per bed. Although menti oned only in two locations in the EIR, the assumption will have made it impossible for the analysis to have been completed correctly. On the contrary, as described in the analysis provided above, it is entirely likely that the population of the project could be nearly double that considered in the EIR (278 new residents in the EIR vs. up to 428 new resident s demonstrated above). Were this a congregate care facility, the EIR’s assumptions mig ht be credible, but based on the descriptions provided in the Specific Plan and the Planning Commission staff report, this is planned to be a senior apartment building with m ulti-bedroom units housing couples who live independently and have roommates or guests occupying their 2 nd and 3 rd
bedrooms.
Because the EIR characterizes the Project as a nursing home or congregate care facility, rather than a senior housing project with 28 Memory Care units, the impacts have been miscalculated and mischaracterized. The results of these errors are described categorically below.
1. Traffic Impacts are Underestimated
The EIR did not analyze traffic impacts at all, on the assumption the traffic generated by the Project would be almost half of what is generat ed by the current commercial center, as determined in the Initial Study/Notice of Prepar ation. However, as described above, the Project is not a congregate care facility – it is a senior apartment building with multiple bedrooms with 28 Memory Care beds. Based on the Ins titute of Traffic Engineers (ITE) Trip Generation Manual (11 th Edition), one can accurately develop the trip generation for the Project, as shown below.
The ITE defines Senior Adult Housing, Multi-Family as:
Senior adult housing-multifamily sites are independ ent living developments that are called various names including retirement commu nities, age-restricted housing, and active adult communities. The developm ent has a specific age restriction for its residents, typically a minimum of 55 years of age for at least one resident of the household.
The ITE further defines Congregate Care Facilities as:
A congregate care facility is an independent living development that provides centralized amenities such as dining, housekeeping, communal transportation, and organized social/recreational activities. Each individual dwelling unit often has a kitchenette. Assistance is typically available fo r housekeeping or minor household maintenance. Limited medical services (su ch as nursing and dental) may or may not be provided. The resident may contract additional medical services or personal assistance.
The ITE defines a Continuing Care Retirement Community as:
A continuing care retirement community (CCRC) is a land use that provides multiple elements of senior adult living. A CCRC enables a resident to transition in place from independent living to increased care as the medical needs of the resident change. Housing options may include various combinations of senior adult housing (both single-family and multifamily), congr egate care, assisted living and nursing home.
Significantly, ITE adds to its description: “Cautio n should be used when applying these data. CCRC developments consist of various housing components…Therefore, the use of a single housing component may not fully represent the trip generation characteristics of these communities.”
In this case, the Project is most consistent with a Continuing Care Retirement Community, as it will provide Memory Care, and Assisted Living and Independent Living units with multiple bedrooms. According to ITE, these three us e types must be considered separately. The Initial Study and its traffic analy sis, therefore, should have considered each of the three land uses separately, and assigne d trips based on these three categories. Further, since the Assisted Living unit s consist of multiple beds (see Table 1 above), the trip generation for these units was under-counted.
Senior Adult Housing Multifamily: 102 units @ 3.24 trips per unit – 331 ADT Assisted Living: 156 beds @ 2.60 trips per bed – 406 ADT Nursing Home (Memory Care): 28 beds @ 3.06 trips per bed – 86 ADT
Had the trip generation been calculated correctly, it would have resulted in a total of 823 daily trips, more than double what was cited in the Initial Study/NOP. This represents a reduction of only 124 trips per day when compared t o current conditions, for a use with very different travel patterns from the commercial center that currently occurs on the site.
As a result, the Initial Study did not consider the potential impacts associated with traffic from the proposed Project, and the analysis of traf fic was improperly excluded from the EIR.
2. Air Quality Impacts
The effect of the underestimation of traffic impact s is most significantly seen in the calculation of air pollution generated by the Proje ct. First, the California Emissions Estimator Model (CalEEMod) assumptions are based on a 0.5 acre city park, and 213 congregate care units. Why a city park would be fac tored into the analysis is unknown and baffling. The courtyards contained in the Proje ct are ancillary to the use, and do not represent a city park. The mischaracterization of t he units as congregate care further affects the analysis, since CalEEMod takes its definitions from ITE. Since the calculations for air emissions were based on an inaccurate assumption of congregate care, and a trip generation (537 ADT) that represents only 65% of the correctly calculated trip generation, the results of the modeling are necessarily incorre ct. Without accurate inputs into the CalEEMod model, it is impossible to provide correct outputs. Therefore, the projected air emissions resulting from the Project are underestim ated in the EIR, and do not correctly inform decision makers or the public of the impacts of the Project.
3. Energy Impacts
As with air quality impacts, the results of the analysis are only as good as the inputs into the CalEEMod model. Since the inputs were incorrect as it relates to use, unit types and trips generated, the gasoline, electricity and natu ral gas usage of the Project is underestimated, since it does not assume multi-bedr oom apartments, but rather congregate care beds. This analysis needs to be con ducted utilizing correct inputs, so that correct impacts can be assessed.
4. Greenhouse Gas Impacts
The analysis in the EIR relating to greenhouse gas (GHG) emissions also fails to accurately reflect the impacts of the Project, for two reasons. First, as is the case with the air quality analysis, the results of GHG modeling i n CalEEMod are affected by the inaccurate and insufficient inputs into the model. The Project does not consist of a city park, and should not have been characterized as a c ongregate care facility. As a result, the GHG emissions contained in the EIR are lower th an they should be and need to be recalculated using accurate assumptions for model inputs.
In addition, as determined by the San Bernardino Su perior Court in Upland Community First v. City of Upland, the 3,000 ton threshold for residential development on which the EIR relies has been determined invalid, insofar as it was not adopted by the South Coast Air Quality Management District (SCAQMD), and that there is no evidence that the threshold was established based on scientific analysis. As a result, the EIR’s reliance on the Project having lower than 3,000 tons in GHG emi ssions does not demonstrate that the impacts of the Project will be less than signif icant. The GHG impacts have not been calculated correctly, and cannot be relied upon to determine that impacts of the Project will be less than significant.
5. Land Use and Planning Impacts
The analysis of General Plan goals and policies in the EIR’s Table 4.7.B is wholly inadequate. This Table is intended to analyze wheth er the Project is consistent with various selected goals and policies. Instead of ana lysis, however, the consistency determinations are conclusionary (and conveniently positive) without providing substantial evidence. For example, in its “analysis” of the consistency of LU-D (“Maintain and protect residential neighborhoods by avoiding e ncroachment of incompatible land uses), the determination of consistency states:
Land uses surrounding the project site include a mix of commercial, industrial, and residential uses. The proposed project would develo p a senior living community with on-site amenities, which would be compatible w ith surrounding land uses including adjacent residential neighborhoods. No co nflict with this policy would occur.
This response provides absolutely no support for it s conclusion, and actually mischaracterizes the Project’s surroundings. In fac t, other than a single story industrial building to the south, the Project is surrounded by residential development with single family homes and two-story multi-family units being the immediate neighbors. Based solely on this response, the EIR should have determined that the Project was inconsistent with the policy, since it did not demonstrate other wise. This is only one example of the unsupported conclusions contained in the Land Use analysis. Other explanations are that the Project is not consistent with the General Plan, but that approval of the General Plan Amendment will make it so. This is not analysis, an d does not support a finding of less than significant impacts associated with land use and planning. The EIR must accurately and completely analyze the land use impacts of the Project, and provide substantial evidence to allow decision makers and the public to make an informed decision.
6. Water Demand
The EIR did not address the Project’s water demand, on the basis that the Initial Study found impacts to be less than significant. That conclusion was erroneous. First, although the Initial Study states that the Project will requ ire 25.85 acre feet (af) of domestic water annually, it does not explain the assumptions used for that calculation, so whether it is correct cannot be determined. The Initial Study goes on to state that because 25.85 acre feet is 0.1% of the City’s total water use, the Project’s impact will be negligible. What the Initial Study ignores is that the City’s Urban Water Management Plan (UWMP) determined that water supply/demand in 2020 was 25,966 af, and that the supply/demand in 2045 is expected to be 26,054 af annually. This represents an increase over 25 years of only 88 acre feet. Based on the Initial Study’s calculation, the Project will consume 30% of all the water supply the City UWMP determined would be available in the next 25 years. On that basis, only 400 more residential units can be const ructed in the City between now and 2045, before the water runs out. The Project’s wate r demand represents a substantial portion of the water that will be available for all new projects over the next 20 years in the City, but was dismissed as a minor contribution to water demand. The Initial Study should have found that the Project had the potential to significantly impact water resources, and the EIR must be amended to include a complete analysis of the impacts of the Project on the City’s water supplies, including cumulative long-term impacts.
On the basis of the analysis that was conducted and described above, the proposed Bolsa Chica Senior Living Community cannot be approved. T he City must rescind the CUP approval, revise and recirculate the EIR to reflect correct conditions, and then consider the Project again, once the public and decision mak ers have sufficient information to make an informed decision.
Please feel free to contact me if you have any questions.
Sincerely,
Brian Thienes