Attachment G
Staff Response to Appellant Letter
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Attachment G- Staff Reponses to Appellant Appeal Letter
1. Contrary to the Planning Commission's January 18, 2024 discussion, and based on misleading and unsupported testimony from OC San, the eminent domain process does not prevent the City Council from assessing all of the impacts of the OC San's project, and rejecting it, or selecting an alternative location.
Response: As the City Council will conduct a de-novo hearing, its review authority is not bound by the Planning Commission’s decision or limited to the issues raised on appeal or at the Planning Commission. The eminent domain matter, in and of itself, does not prevent the City Council from assessing the project in accordance with City codes and standards. After condu cting a public hearing and taking in all public comments including staff’s presentation and staff report and related documents, the City Council may vote to deny the project if it determines the project is not meeting one or more of the required findings for a major site development review application and coastal development permit. If the City Council denies the application, the applicant may submit a new application with an alternative design or location.
2. The expanded Bay Bridge Pump Station (“BBPS”) is too massive, too tall, and is an unnecessary industrial type facility that can easily be located in a less conspicuous site elsewhere on BVM’s property (e.g., immediately adjacent to and on either side of and partly underneath the East Coast Highway Bridge).
Response: Staff has conducted a thorough evaluation of the project and determined that its size and height conform to the development standards and the findings both in the Planning Commission staff report (Attachment D) and Planning Commission Resolution No. PC 2024 -002 (Attachment C) support the conclusion. While there may be alternative locations available within the property site, the project as proposed has met the applicable development standards of the Newport Bea ch Municipal Code (NBMC). Staff believes that the additional size of the proposed station is necessary to meet current OCSD functional requirements and to accommodate the addition of a new odor control. There is no odor control facility in the existing station. Per Section IV (B) (Development Standards – Permitted Height of Structures) of PC-9, the maximum building height within Planning Area 1 shall not exceed 30 feet for flat roofs and 35 f eet for sloped roofs. The proposed electrical and generator building features a sloped roof design with parapet walls which is 22 feet. The proposed odor control building features a flat roof design with parapet walls which is 15.5 feet. Additionally, the proposed height of the building accounts for the raised floor necessary for flood and coastal hazard protection, electrical and mechanical equipment for station operation, and screening for rooftop HVAC equipment. The height appears to be the minimum necessary for proper functionality of the station.
3. The BBPS expansion, as proposed, will triple its current size (4,800 to 14,500 sf), and as stated by prior commenters on the three prior versions of the BBPS EIR is inconsistent with City’s and Coastal Commission’s unanimously approved Coastal 13-110
Land Use Plan, the Back Bay Landing Planned Community Development Plan (“PCDP”), and key provisions of the California Coastal Act. T he BBPS expansion does not protect LCP-mandated coastal view corridors from Coast Highway towards Upper Newport Bay and Castaway’s Bluffs, and is not in compliance with the City’s General Plan scenic highway policies, and does not comply with the requirements or the intent of the Back Bay Landing PCDP’s Architectural Provisions (Section 10, page 26 Back Bay Landing PCDP), that the pump station essentially be camouflaged, and incorporated within the overall BBL development.
Response: The Planning Commission staff report (Attachment D) and Planning Commission Resolution No. PC2024 -002 (Attachment C) support the required findings demonstrating that the project is consistent with the Coastal Land Use Plan.
Additionally, the findings for determining consistency with the PCDP (PC-9) are incorporated in the findings for Major Site Development Review. As stated above, the staff analysis, with its supporting facts demonstrates that the project meets the findings and is consistent with the PC-9.
The appellant cl aims the project does not protect LCP -mandated coastal view corridors from Coast Highway towards Upper Newport Bay and Castaway’s Bluffs.
However, Facts 5 and 6 of Finding “C” listed in Planning Commission Resolution No.
PC2024-002 (Attachment B) provide supporting statements that the project meets the finding requiring consideration of public views through the site. Fact #6 states that the project is designed to maintain the six view corridors identified by the PC-9 and Exhibit 13 of the PC-9, which the Coastal Commission has certified. Furthermore, staff provides a thorough analysis of the public views on pages 13 and 14 in the Planning Commission Staff report (Attachment C), demonstrating project’s compliance with said findings. Staff continues to assert that the project conforms to the coastal view corridors from Coast Highway towards Upper Newport Bay and Castaway’s Bluffs.
The appellant also claims that the project is not in compliance with the City’s General Plan scenic highway policies. Policies NR20.3 (Public Views) of the General Plan’s Natural Resources Element require that view corridors from certain roadway segments, including various sections of the Coast Highway, including the segment adjacent to the project site, be protected, and enhanced. As discussed above, the project conforms to the standards in the PC-9 which is consistent with the General Plan policies in addition to the Local Coastal Plan. Landscaping is proposed along the East Coast Highway frontage, which helps reduce the massing of the property walls. The landscape buffer also enhances the appearance of the public right -of- way so that the Project does not appear walled off from public viewsheds.
The appellant states that the project does not comply with the requirements or the intent of the PC-9 Architectural Provisions. PC-9 contains a provision stating that “should the OCSD facility be relocated and/or reconstructed, the architectural design of the structure be compatible with the architectural design of the Back Bay Landing 13-111
development and design standards…” At the time PC-9 was adopted by the City Council and certified by the California Coastal Commission, it was assumed the Pump Station reconstruction would likely occur after the development of the Back Bay Landing mixed-use project. The fact that the Pump Station is now proposed to be reconstructed first and there is no currently proposed or approved Back Bay Landing mixed-use project to compare the proposed architecture of the Pump Station to complicates matters. Furthermore, PC-9 does not mandate a particular architectural style, but it merely stipulates that development be designed with a “coastal architectural theme” with the intent that no particular historically specific or rigid architectural style be selected for the project. PC-9 simply requires that the mixed-use project “follow principles of quality design and exhibit a high level of architectural standards and be compatible with the surrounding area, sensitive to scale, proportion and identify.” The proposed Pump Station design incorporates a modern design with a cantilevered roof overhang and an integration of materials and details inspired by the surrounding coastal context. The buildings avoid long, continuous blank walls with a simple façade composition of a base and top separated by different colors. There is a mixture of heights and roof types (sloping and flat) to create visual interest , as well as provide rhythm, dynamic building forms, and shadows. To resolve the concern about the Pump Station design’s potential inconsistency with the future and undetermined design of the Back Bay Landing mixed-use project, Condition No. 31 of Planning Commission Resolution No.
PC2024-002 (Attachment B) requires that the applicant make future alterations to the exterior façade to the satisfaction of the Community Deve lopment Director for consistency and compatibility with the architecture of a future approved Back Bay Landing mixed-use project.
4. Staff and Applicant failed to adequately address or explain why the alternate site south of the ECH bridge - .62 acres owned by BVM – is not superior to the expanded site north of ECH. This southern alternative avoids numerous operational and aesthetic issues, and poses far less construction risks, including minimizing sub - surface microtunneling (boring of a 6-7 foot wide tunnel) beneath ECH.
Response: The applicant’s letter in response to the Appellant mentions that the alternative site was discussed in the EIR, and that the alternative site was not chosen for other reasons including space needs, vulnerability to flooding and other factors listed in the applicant’s response letter (Attachment H). Although discussions have occurred between staff and the Applicant regarding alterative locations, staff is not in the position to mandate construction of the project at one particular location over another. As the applicant ultimately presented the proposed a project, it was staff’s responsibility to evaluate the project, as proposed, based on City’s General Plan, Zoning, Local Coastal Plan and the PCDP. Furthermore, with regards to the EIR, the City is not the Lead Agency but a Responsible Agency and it has limited authority compared to the Lead Agency (OCSD). A Responsible Agency may require changes in a project to lessen or avoid only the effects, either direct or indirect, of that part of the project which the agency (the City) will be called on to carry out or approve.
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5. Contrary to Planning Staff’s assertions (page 9) in the January 18 Planning Commission Staff Report, the proposed expanded, 22 -foot high pump station is neither “aesthetically pleasing as a stand-alone development,” appropriate for this central Newport Harbor coastal location, or “visually/architecturally compatible with the Back Bay Landing PCDP”.
Response: The matter related to aesthetics and architectural compatibility were discussed during the January 18, 2024, Planning Commission hearing. To ensure aesthetic quality, the Planning C ommission imposed a condition of approval (discussed earlier) requiring future alterations to the exterior facade of the project for consistency and compatibility with the architecture of a future Back Bay Landing mixed-use project. Furthermore, the Project emphasizes clean lines, simplicity and avoids excessive ornamentation which will easily facilitate future facade modifications so the buildings would be consistent with the architectural style of the future Back Bay Landing mixed-use village.
6. Despite OC San’s multiple assertions that any further delay or rejection of their Site Development Review submittal will risk sewage spills in the harbor, there has been no evidence provided that the recently (2014) refurbished and mechanically upgraded BBPS facility cannot continue to function safely for the balance of this decade. In fact OC San has not even received a complete, filed CDP application with the California Coastal Commission for the new 30 -inch force mains that must be microtunneled from a 54-foot deep launch pit near Bayside and Coast Highway and traverse Under ECH and under the Newport Harbor Channel. Likewise they have no approval from Caltrans for proposed access to and from East Coast Highway.
Response: Staff works with applicants to find solutions that achieve the applicant’s desired project while at the same time, ensuring that the applicant’s project conforms with the City’s vision and objectives as articulated in the General Plan, Zoning, and various other policy documents. Staff does not believe it is in a position to dispute OCSD’S assertion that the facility in its current form (primarily age of the infrastructure) poses a risk of sewage spill and that the project is necessary in part to negate the chance of sewage spills. Staff’s responsibility is to provide recommendations as to whether or not a project conforms with the City standards (General Plan, Local Coastal Program, zoning, etc.). According to OC SD’s Asset Management Plan, which is a tactical document that captures OCSD’s structure maintenance plans and capital improvement plan implementation on an annual basis for all its facilities, indicates the subject Bay Bridge Pump Station has less than five years of useful life. Based on the Asset Management Plan, the current pump station needs to be replaced to safeguard against sewage spills. Furthermore, the trial court’s ruling on Bayside Village Marina LLC v Orange County Sanitation District recognizes the “sever risk to the environment that would be posed by the outdated pumping station and force mains failing and spilling raw sewage into Newport Bay (page 16 of the ruling) (Attachment H).
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7. The recirculated EIR, and subsequent evidence obtained in depositions in the pending Eminent Domain case (OCSD v. BVM, case no. 30-2022-01251890-CU-EI- CXC) of four different BBPS Project Managers, indicates that this massively disruptive OC San project will be under construction, with upwards of 1,200 truck trips on Coast Highway, Bayside and Dover per year for 4-5 years+. There is no need for the City to rush the approvals of this ill -advised, risky and poorly management project while the City Council works with OC San and BVM to identify an alternative location and design of the project.
Response: It’s recognized that the project will involve truck trips due to the construction phase including grading, excavation, dredging, etc. There will be lane closures, additional truck trips through the neighborhood and other construction related activities as disclosed in the EIR. It is staff’s opinion that the expected disruption resulting from the project does not justify the delay or denial of the project.
Even if the project would occur at an alternative location, favored by the appellant, the level of disruption would not be any less as the project would still involve construction, grading, excavation, dredging, truck trips, etc.
Although not related to construction related truck trips, the frequency of truck trips to the site and the type of trucks during the operation of the new facility will not be different than the current level of truck trips. According to OCSD’s Project Resolution of Necessity, service vehicles will be limited to 15 trips on a weekly basis that will use the access easement from. The Final EIR also discloses this matter and stats “the project would require up to 15 maintenance vehicle trips per week for periodic maintenance and inspections by OCSD staff, and no new vehicle maintenance trips would be required as a result of the proposed project. No new employees would need to be hired as part of the project.” The primary access to the site will be primarily from an agreed shared access easement from Bayside Drive. Access from East Coast Highway will serve as the secondary access. The use of the easement access will increase the safety for OCSD operations and maintenance. 13-114