LAGUNA NIGUEL CITY COUNCIL
Minutes of the Regular City Council Meeting
November 15, 2022
7:00 p.m. - Regular Meeting
CALL TO ORDER AND ROLL CALL - Mayor Gennawey called the Regular City Council Meeting to order at 7:00 p.m.
Mayor Elaine Gennawey- Present
Mayor Pro Tem Sandy Rains - Present
Council Member Kelly Jennings - Present
Council Member Rischi Paul Sharma - Present
Council Member Fred Minagar - Present
INVOCATION - Father Patrick Moses, Saint Timothy Catholic Church PLEDGE OF ALLEGIANCE - Mayor Pro Tem Rains
PUBLIC COMMENTS
Barbara Leibold and Chuck Leibold spoke on the use of the Crown Valley Community Center pool.
CONSENT CALENDAR
A MOTION was made by Council Member Minagar, seconded by Mayor Pro Tem Rains to approve the Consent Calendar.
Motion carried 5-0.
Warrants of November 15, 2022
Approved as written.
Payroll Summary Register
Approved as written
Investment Report as of September 30, 2022
Approved as written.
Minutes of the Regular Meeting of the City Council on November 1, 2022 Approved as written.
City Council Regular Meeting Minutes Page 1 of 9 November 15, 2022
PUBLIC HEARING
Amendments Are Necessary Because of Local Climatic, Geological, or Topographical Conditions
Development Services Manager Morgan provided a report.
Mayor Gennawey opened the Public Hearing.
There were no public comments.
Mayor Gennawey closed the Public Hearing.
A MOTION was made by Council Member Minagar, seconded by Mayor Pro Tem Rains to adopt:
Draft Resolution No. 2022-1410 (Local Conditions Findings) ORDINANCE NO. 2022-219
AN ORDINANCE OF THE CITY OF LAGUNA NIGUEL, CALIFORNIA,
ADOPTING BY REFERENCE THE 2022 CALIFORNIA BUILDING CODE; THE 2022 CALIFORNIA RESIDENTIAL CODE;
THE 2022 CALIFORNIA GREEN BUILDING STANDARDS CODE;
THE 2022 CALIFORNIA ELECTRICAL CODE;
THE 2022 CALIFORNIA PLUMBING CODE;
THE 2022 CALIFORNIA MECHANICAL CODE;
THE 2022 CALIFORNIA ADMINISTRATIVE CODE;
THE 2021 INTERNATIONAL PROPERTY MAINTENANCE CODE;
AND THE 2021 INTERNATIONAL SWIMMING POOL AND SPA CODE;
TOGETHER WITH CERTAIN AMENDMENTS, ADDITIONS,
DELETIONS, AND PENALTIES, AND AMENDING TITLE 8 OF THE
LAGUNA NIGUEL MUNICIPAL CODE
ORDINANCE NO. 2022-220
AN ORDINANCE OF THE CITY OF LAGUNA NIGUEL, CALIFORNIA,
ADOPTING BY REFERENCE THE 2022 CALIFORNIA FIRE CODE,
TOGETHER WITH CERTAIN AMENDMENTS, DELETIONS, ADDITIONS AND PENALTIES, AND AMENDING TITLE 11 OF
THE LAGUNA NIGUEL MUNICIPAL CODE
Motion carried 5-0.
City Council Regular Meeting Minutes Page 2 of 9 November 15, 2022 A Public Hearing to Consider the Appeal of the Planning Commission's Certification of Environmental Impact Report EIR 22-02 and Approval of Site Development Permit SDP 16-04, Including Alternative Development Standards, Minor Adjustment MA 22-11, and Tentative Tract Map TTM 17721 for the Cove at El Niguel Project
Community Development Director Orduna provided a report and PowerPoint presentation entitled "Appeal of the Cove at El Niguel EIR 22-02, SDP 16-04, MA 22-11, & TTM 17721." Special Legal Counsel Ghirelli called on City Council members to disclose ex-parte communications with project proponents or opponents or site visits with respect to the project location prior to the Public Hearing. Council Members Jennings, Minagar, Sharma, Mayor Pro Tem Rains, and Mayor Gennawey disclosed information on site visits and meetings with project proponents or opponents.
Mayor Gennawey opened the Public Hearing.
Jim Kozel, President of the Niguel Summit Community Association, and Patrick Muñoz, of Rutan and Tucker, LLP, and representative on behalf of the Niguel Summit Community Association, provided statements in opposition to the Planning Commission's approval of the project
Gregory Powers, of Jackson Tidus and representative on behalf of Laguna Niguel Properties, Inc., provided a statement in favor of the Planning Commission's approval of the project
Susan Namazi, Bruce Rasner, Andrew Zalay, Randall Lipton, John Ulrich, Dave Wilkinson, Christine Wilz, Kathi Shannon, Rod Henderson, Charlie Maerzke, Rebecca Schwartz, James Shuebster, Nathan Smith, Sara Nuss-Galles, Anthony Abraham, Cynthia Randall, Fred Carroll, Jeff Troy, Laurie Troy, and Thomas Taylor spoke in opposition to the Planning Commission's approval of the project.
Patrick Muñoz, of Rutan and Tucker, LLP, and legal counsel to the Niguel Summit Community Association, provided rebuttal to the applicant's statement.
Mike Recupero, with Recupero and Associates, Inc. and representative on behalf of Laguna Niguel Town Partners, provided a rebuttal to the appellant's statement.
COUNCIL QUESTIONS
Mayor Pro Tem Rains inquired as to whether there was additional outreach to acquire inclinometer readings. Mr. Recupero stated that outreach was conducted. She also inquired about how many tons of dirt would be removed from the project site. Community Development Director Orduna clarified that there would be 13-18 truckloads occurring throughout the length of construction. She concluded by asking how much parking was included in the plan. Mr. Recupero stated that there would be 11 guest parking spaces.
City Council Regular Meeting Minutes Page 3 of 9 November 15, 2022 Council Member Jennings inquired as to why there was cutting into the buttress. Mr.
Recupero clarified that given the conditions of approval and changes in the number of houses for the project, there was a need to cut into the buttress.
Council Member Sharma inquired about foregoing cutting into the buttress and make the backyard space smaller. He asked for clarification on whether cutting into the buttress was a compromise for the City's conditions on setback. Mr. Recupero clarified that the site could not be re-engineered to avoid cutting into the buttress.
Mayor Gennawey inquired about how repairs for the site would have been different had it been known there would be homes built on the site. Mr. Recupero clarified that the safety factors meet the requirements for building on the site.
Mayor Pro Tem Rains inquired of the appellant as to whether the remaining reconstructed homes affected by the landslide were stabilized and indemnified. Mr. Kozel clarified that the homes were stabilized and made whole by the developers. Ms. Wilz further clarified that the homeowner's insurance covered the cost of damage for homes that were not destroyed by the landslide. Mayor Pro Tem Rains further inquired as to whether the HOA had been able to provide a peer-reviewed report to substantiate claims of public safety.
Mr. Kozel stated that there was no current report.
Mayor Gennawey inquired if the HOA has indeed engaged a geotechnical engineer to review the geotechnical reports. Mr. Kozel stated that at an earlier HOA board meeting it was decided to re-engage a geotechnical engineer to read the inclinometer reports.
Council Member Sharma inquired as to whether providing inclinometer readings was approved at the HOA board meeting. Mr. Kozel stated that it was but that there was hesitation to only offer their own interpretation without having others look at it. Council Member Sharma further inquired about the conditions of approval for a hazard abatement program. Mr. Muñoz stated that such a program would create a funding mechanism to address possible future damage to the homes. Mayor Gennawey inquired if this would be a tax on the homes to fund this program. Mr. Muñoz stated that it could loosely be characterized as a tax.
Council Member Jennings inquired as to why a geotechnical engineer had not been engaged until now. Mr. Kozel clarified that the HOA had the same geotechnical engineer as the developer up until 2014, when the engineer left to work for the developer. The HOA has since engaged another engineer who periodically reviewed the inclinometer data.
Council Member Jennings further inquired as to why concerns of movement were not brought to the attention of the developer. Mr. Kozel stated that the HOA did not have interactions with nor did they believe they were obligated to engage with the developer.
Council Member Jennings stated that outreach by the developer had been conducted.
Mr. Kozel stated that such outreach on technical matters was not effective for HOA members.
Mayor Pro Tem Rains asked for clarification on the HOA's trust of the developer's geotechnical engineer, since the HOA had hired that engineer before. Mr. Kozel reiterated that the engineer has not worked for the HOA since 2014.
City Council Regular Meeting Minutes Page 4 of 9 November 15, 2022 Mayor Gennawey asked why inclinometer readings had not been provided to the City.
Mr. Kozel stated that the inclinometer readings were from 2019 and that much could have changed since then.
Mayor Genawey closed the Public Hearing and called for a 10-minute recess.
Council Member Jennings inquired as to the timeframe for approving this project. Special Legal Counsel Ghirelli clarified that SB 330 requires housing projects to be approved within 5 public hearings. She further inquired as to whether the City had a legal obligation to require an indemnification of the developer. Special Legal Counsel Ghirelli stated that the City Council may adopt mitigation proposals but that there was no legal obligation to require indemnity of the developer.
Mayor Pro Tem Rains further inquired as to whether it was standard for indemnity to be provided to an HOA. Special Legal Counsel Ghirelli stated that he was not aware of any city imposing as a condition of approval a requirement of indemnification on a developer to indemnify a third party.
Council Member Sharma asked for further clarification on a condition of approval of a hazard abatement program. Special Legal Counsel Ghirelli provided an example of community facilities districts that have such programs for public improvements. He further clarified that he has no examples of cities imposing as a condition of approval a geological hazard abatement district on a project. Council Member Sharma asked for clarification that the City cannot legally compel indemnity of the developer. Special Legal Counsel Ghirelli clarified that the City cannot compel private parties to indemnity. Council Member Sharma asked for clarification on statute of limitations. Special Legal Counsel Ghirelli clarified that statute of limitations applied to construction defects and that he knew of no examples of this being applied to landslides caused by a development.
Council Member Minagar inquired of the City's geotechnical engineer representative, geologist Lisa Bates of GMU Geotechnical, as to whether she could attest to the accuracy of the geotechnical reports. Ms. Bates clarified that she peer reviewed the geotechnical engineer-on-record's report and that it was stated in multiple places in the report that it was safe to develop the land. Council Member inquired of Special Legal Counsel Ghirelli as to the accuracy of the Environmental Impact Report (EIR) and its compliance with the California Environmental Quality Act (CEQA). Special Legal Counsel Ghirelli stated that the EIR does conform with CEQA. Council Member Minagar inquired of City staff to clarify why no testing was done to test the accuracy of movement in the soil in the last three years. Development Services Manager Morgan clarified that there is data that supports the conclusion that there has not been any significant movement in the slope post 2014.
Council Member Minagar concluded by asking what the land use substitutions were if houses were not built on that slope. Development Services Manager Morgan stated that an alternative would be the applicant building to the full limits of the plan.
Special Legal Counsel Ghirelli provided further clarification to Council Member Jennings' question on the timeframe for approving the project. He stated that the 5 public hearing limit was being applied to this project out of an abundance of caution, and that the Council needed to act upon the appeal of the project within 60 days. Mayor Gennawey asked if City Council Regular Meeting Minutes Page 5 of 9 November 15, 2022 there was a deadline by which the Council needed to take action. Special Legal Counsel Ghirelli clarified that there would be legal issues should the Council not take action before the newly elected Council Members took office on December 6.
Council Member Sharma inquired of Ms. Bates of whether the behavior of the soil was different from adjacent areas in Laguna Niguel. Ms. Bates stated that the expansive soils surrounding the area were similar to that of the Cove. Council Member Sharma further inquired about the inclinometer readings and whether it was reflective of the nature of the soil or if it indicated actual movement in the slope. Ms. Bates clarified that the readings show subtle movement and that this is due to typical slope creep and expansive soils.
Council Member Sharma asked what an acceptable standard measure of deviation in soil movement was. Ms. Bates clarified that what is considered acceptable across a slab is two inches of differential.
Mayor Gennawey asked for clarification if this movement was typical throughout Laguna Niguel. Ms. Bates stated that expansive soils was typical of the slopes of Laguna Niguel.
Mayor Gennawey asked for further clarification if the measurements of the slope for the project was typical for the City's expansive soils. Ms. Bates stated that the inclinometer readings and the amount of deflection were typical of expansive soils. Mayor Gennawey inquired as to how large of an area could an inclinometer read. Ms. Bates clarified that it depends on the site but that inclinometers located at the bottom of the slope provide reasonably accurate readings of the movement of the slope.
Mayor Pro Tem Rains asked of Ms. Bates to expound on what it means that the landslide was "removed." Ms. Bates stated that the upper part of the landslide was removed and replaced with compacted fill, along with several redundant remediation repairs. Mayor Pro Tem Rains inquired about what the buttress is composed of. Ms. Bates explained that the buttress consisted of compacted soil that was moisture conditioned to support the slope.
Mayor Pro Tem Rains further inquired what the factor of safety would be if the buttress were to be cut into. Ms. Bates clarified that when that cut is made the safety factor is above the standard and when the Mechanically Stabilized Earth (MSE) wall is installed it will not effect the safety factor of the overall landslide remediation.
Mayor Gennawey inquired as to whether the repairs meet current standards. Ms. Bates confirmed that it did meet today's current codes and standards of practice.
Council Member Minagar asked whether there were any liquefaction problems at the project site. Ms. Bates stated that there were none.
Council Member Sharma inquired as to whether the current project infringes on the drainage system. Ms. Bates stated that the project will have no impact on the drainage system.
Council Member Jennings asked Ms. Bates to clarify the safety factor of the MSE wall.
Ms. Bates reiterated that the stability during and after construction would not adversely affect the property.
City Council Regular Meeting Minutes Page 6 of 9 November 15, 2022 Mayor Gennawey asked Community Director Orduna to provide clarification on Federal Emergency Management Agency (FEMA) position on developing on the slope.
Community Director Orduna clarified that one of the requirements to receive disaster funding for the site, FEMA required that the site be zoned as open space. He further clarified that FEMA did not analyze the site for development and that the agency merely determined that it did not qualify for funding. Mayor Gennawey further inquired as to why there were two tract maps to be approved for the site. Community Director Orduna clarified it was to memorialize the applicant's intent to keep the remaining half of the buttress as undevelopable open space. Mayor Gennawey then asked what geotechnical findings the appellant has provided that counters the approval of the project. Community Director Orduna stated that assertions have been made but no data analysis has been provided. Mayor Gennawey asked Community Director Orduna to explain why more recent inclinometer readings have not been obtained. Community Director Orduna clarified that the City had reached out and that the HOA has declined to provide inclinometer data.
Mayor Pro Tem Rains asked for clarification about a 2009 lawsuit brought by the City against FEMA. Special Legal Counsel Ghirelli and Community Director Orduna provided information on the City's unsuccessful appeal of FEMA's de-obligation of funds and further clarified FEMA's position on the land not being eligible for funding and the reversion of the zoning of the land. Mayor Pro Tem Rains asked for further information on action taken by the City Council at the time on the reversion of the zoning of the land.
Special Legal Counsel Ghirelli provided information on the distinction of reversionary clauses from ordinances.
Mayor Gennawey inquired about how the change from 41 units to 22 units came about.
Community Director Orduna clarified that it was a voluntary change from the developer as a result of discussions between the developer and the HOA.
Mayor Pro Tem Rains inquired as to how long it takes to do inclinometer readings. Ms.
Bates clarified that it can be anywhere from 30 to 60 minutes per inclinometer, and that it would take roughly 2 weeks to read and process the data for 30 inclinometers. Mayor Pro Tem Rains further inquired as to how long it took to review a geotechnical study. Ms.
Bates clarified that it depends on the study and that it can be up to 2 weeks.
COUNCIL COMMENTS
Council Member Jennings thanked everyone for their public comments and acknowledged that this was a long journey for all involved. She reiterated that the history of this project was complex, and that the quasi-judicial role of the Council constrained it to make a decision based on the evidence presented. She stated that she reviewed the Planning Commission's findings and conclusions and found them compelling, that arguments raised in the appeal were addressed in the Staff Report, and that the project's Environmental Impact Report (EIR) complied with CEQA. She stated that the evidence before the Council was sufficient to support the findings of the Planning Commission.
Council Member Sharma expressed that he empathized with the community and acknowledged the salient issues public commenters had raised. He stated that his biggest City Council Regular Meeting Minutes Page 7 of 9 November 15, 2022 concerns were the cutting into the buttress, the inclinometer readings, and the movement in the slope. He reiterated that the task of the Council tonight was to approve or deny the Planning Commission's decision to approve the project, that he does not see enough evidence from the appellant to give him a reasonable doubt as to the safety and longevity of the project, and that he cannot get behind the suggestion of an indemnification approach. He stated that he stood alongside the Planning Commission.
Mayor Pro Tem Rains expressed that she empathized with the community and asked a lot of questions so as to address the many concerns residents have. She reiterated that public safety was important to the Council. She stated that the Council has been provided with solid evidence, except for inclinometer readings from the appellant. She acknowledged residents' fears about the project and that those fears may be satisfied with facts. She reiterated that the applicant had complied with the Council's request and that now it was up to the appellant to comply by providing inclinometer reading, or else the Council was legally obligated to approve the Planning Commission's findings. She stated she was willing to give the appellant a short period of time to provide inclinometer readings before making a final decision.
Council Member Minagar expressed that the public's comments were well-taken, and that he wanted to do the right thing and serve the City well. He stated that a missing link to this whole process were the inclinometer readings, and that he wanted to make sure he has all the information that the proposed action plan does not have any adverse, negative impact on the homes and residents living near the project site. He stated that he was willing to have a special meeting so that he can see inclinometer readings from the appellant before making a final decision.
Mayor Gennawey acknowledged that the discussion tonight was an emotional one for the community and recalled her emotions when she saw news coverage of the landslide and the destruction of family homes. She reiterated that the safety of the community was the Council's number one priority. She stated that much has been done to study and stabilize the land at the project site, and that geotechnical analysis and mitigation efforts had been extensive. She expressed how challenging it was not to have inclinometer readings from the appellant, even after Staff had requested it from the HOA. She stated that there has been no proof or evidence from geotechnical experts that the proposed development cannot be built nor that the project would have a negative impact on the Niguel Summitt Community. She reiterated that the on-site buttress exceeded the required safety factor.
She supported the Planning Commission's approval of the project and acknowledged that it was not an easy decision, but that factual information had been presented to the Council.
A MOTION was made by Council Member Jennings, seconded by Mayor Gennawey, to:
1. Adopt Resolution No. 2022-1411, denying the appeal and upholding the Planning Commission's decision to certify Environmental Impact Report EIR 22-02 (SCH No. 2021110122), and adopting CEQA Findings of Fact, and the associated Mitigation Monitoring and Reporting Program; City Council Regular Meeting Minutes Page 8 of 9 November 15, 2022
2. Adopt Resolution No. 2022-1412, denying the appeal and upholding the Planning Commission's decision to approve Tentative Tract Map TTM 17721, subject to conditions of approval; and
3. Adopt Resolution No. 2022-1413, denying the appeal and upholding the Planning Commission's decision to approve Site Development Permit SDP 16-04, including alternative development standards, and Minor Adjustment MA 22-11, subject to conditions of approval.
Special Legal Counsel Ghirelli clarified what a "Yes" or a "No" vote on this motion would entail. Mayor Pro Tem Rains inquired as to whether a Special Meeting could be held to consider inclinometer readings from the appellant and a review from GMU Geotechnical.
The appellant and Ms. Bates agreed to the timeline for producing data for consideration at a Special Meeting.
Special Legal Counsel Ghirelli further clarified the structure of continuing the Public Hearing to a Special Meeting. City Manager Letourneau expressed concern over staff having enough time to provide the City Council with a thorough staff report for that meeting given the compacted timeline. Special Legal Counsel Ghirelli reminded the Council that new evidence would be presented and that the Resolutions up for adoption would remain the same or change given the action taken at the Special Meeting.
A SUBSTITUTE MOTION was made by Mayor Pro Tem Rains, seconded by Council Member Minagar to re-open the Public Hearing, continue the Public Hearing to December 5, 2022, and direct Staff to work with GMU Technical to prepare a peer review of the geotechnical data provided by the appellant.
Motion carried 5-0.
OTHER BUSINESS/COUNCIL REPORTS
1. Council Reports
There were no Council Reports.
2. City Manager Report/Department Reports
There were no City Manager or Department Reports.
ADJOURNMENT
Mayor Gennawey adjourned the Regular City Council Meeting at 11:12 p.m.
Respectfully submitted,
Marissa J. Asistin, CMC
City Clerk
City Council Regular Meeting Minutes Page 9 of 9 November 15, 2022