Attachment H
Applicant’s Response to Appellant’s Appeal February 14, 2024
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350 South Grand Avenue, 51st Floor
Los Angeles, CA 90071
213-576-1000 | Fax: 213-576-1100
Matthew Wickersham Direct Dial: 213-576-1185 Email: [email protected]
Alston & Bird LLP www.alston.com
Atlanta | Beijing | Brussels | Charlotte | Dallas | London | Los Angeles | New York | Raleigh | San Francisco | Sili con Valley | Washington, D.C.
February 14, 2024
Mayor Joe Stapleton and City Councilmembers
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: Orange County Sanitation District’s Response to Appeal of OC San Bay Bridge Pump Station – Major Site Development Review and Coastal Development Permit (PA-2023-0076) – 250 E. Coast Highway
Dear Honorable Mayor and City Council Members,
On behalf of Orange County Sanitation District (“OC San”), this letter responds to the January 31, 2024 ap peal (“Appeal”) by Bayside Village Marina (“ BVM”) of the Planning Commission’s approval of OC San’s Bay Bridge Pump Station and Force Main Replacement Project (“Project”). BVM’s Appeal ignores several key points:
• BVM seeks to delay a Project that will, when complete, offer Newport Beach a significant benefit by substantially reducing the risk of a potentially catastrophic sewage spill into Newport Bay. The Bay Bridge Pump Station (“BBPS”) treats over half of the se wage generated by Newport Beach —on average 4.2 million gallons of sewage flow s through the BBPS every day. However, the BBPS is nearly 60 years old, has no odor control, and needs to be revamped to meet modern standards for construction, electrical equipm ent, and maintenance. The completion of the Project will give Newport Beach a state-of-the-art modern Pump Station. • OC San has spent many years trying to engage with BVM regarding the location and design of this Project. These negotiations resulted in OC San changing the location and scope of the Project to suit the most recent location offered by BVM.1 OC San invested precious time in these negotiations, and significant resources and expertise into developing an Environmental Impact Report for the Project, which was approved by OC San in March 2021 (the “EIR”).
1 The December 16, 2022 trial court ruling in the CEQA litigation describes some of the many steps taken by OCSD to accommodate any concerns raised by BVM about the location of the expanded pump station. (Exhibit A [12/16/22 Ruling] at pp. 2-3.) 13-116
OCSD’s Response to Appeal of OC San Bay Bridge Pump Station February 14, 2024
• Despite these changes, BVM filed litigation challenging the EIR under the California Environmental Quality Act (“CEQA”). On December 16, 2022, Judge William Claster of the Orange County Superior Court issued a ruling denying all of the challenges brought by BVM, except for a minor issue concerning the location of construction staging areas. The trial court held that “[b]ecause the issues with construction staging are both severable and appear to be readily correctable, and given the overriding need for the Project, OCSD will not be required to withdraw its approvals for the Project and certifica tion of the EIR.” (Exhibit A [12/16/22 Ruling] at p. 16 , emphasis added .) “ In order to avoid unnecessary delay that increases the risk of a sewage spill, the District may continue to seek the necessary permits from the City, Coastal Commission, etc. to move forward with the Project, and it may continue to pursue the companion eminent domain action.” (Id. at p. 17, emphasis added.)
• BVM did not file an appeal to the trial court’s CEQA ruling. It did not file a challenge to the revisions prepared by OC San in response to the trial court’s limited finding of deficiencies. Instead, BVM stipulated that OC San had complied with the trial court’s writ of mandate and that its CEQA case should be dismissed. (Exhibit B [8/23/2023 Stip & Order].)
• As a result o f the resolved CEQA litigation, BVM has lost or waived all of its challenges to the environmental review conducted by OC San for the Project.
Despite stipulating that OC San has complied with the trial court’s writ of mandate and that its CEQA case should be dismissed , BVM raises many of the same environmental challenges that it raised in the CEQA litigation again here, in its appeal. This is improper.
• The City is a responsible agency under CEQA, and in reviewing the Project , the final EIR prepared by OC San is “conclusively presumed to comply with CEQA.” (CEQA Guidelines, § 15231.)
• In the pending eminent domain lawsuit, BVM has withdrawn the deposit of “probable compensation” provided by OC San. (Exhibit C [9/14/23 Stipulation and 9/15/23 Order of Withdrawing Deposit].) This withdrawal has the legal effect of “waiv[ing] all rights to dispute the taking other than the right to challenge the amount of just compensation.” ( Mt. San Jacinto Community College Dist. v.
Superior Court (2007) 40 Cal.4th 648, 653; see also Cal. Code Civ. Proc. § 1255.260.) The only legal issue remaining to BVM concerns the amount of just compensation that must be paid to BVM for the small portion of its property needed for the expanded pump station.
In sum, the environmental issues raised by the Appeal have already been resolved and BVM is in no position to raise waived, untimely and/or previously resolved objections concerning the characteristics of the Project. However, to the extent that the Council has independent concerns about the topics raised by the Appeal, OC San provides the following 13-117
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information below in response to each of the topics raised in the Appeal, and OC San would be happy to provide any further information desired by the Council:
• BVM Appeal Topic #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 S an's project, and rejecting it, or selecting an alternative location.
OC San Response #1: As discussed above, the objections raised by the Appeal must be considered in the context of BVM’s litigation history, particularly to the extent that it has waived its right to challenge the location of the Project as part of the eminent domain litigation. Further, as to the environmental objections raised by the Appeal, as a responsible agency under CEQA, the City has a limited role in reviewing the environm ental analysis that is now final and has been already approved by the Orange County Superior Court. To the extent that there are additional impacts within the purview of the City (for example, on aesthetic issues), the condition of approval already adopted by the City regarding future aesthetic modifications to the Project fully address any such issues. • BVM Appeal Topic #2: The expanded Bay Bridge Pump Station (“BBPS”) is too massive, too tall, and is an unnecessary industrial type facility that can eas ily 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)
OC San Response #2: The trial court already rejected BVM’s argument that the critical infrastructure that BVM seeks to delay is a “too massive” and “unnecessary” facility that should be situated elsewhere. (Exhibit A [12/16/22 Ruling] at pp. 8-9.) Indeed, the EIR devoted nearly 40 pages to painstaking analysis comparing alternative locations and configurations with the current Project, before applying its expertise in going forward with the current Project.
Indeed, the reasons for going forward with the Project are compelling and supported by substantial evidence. BVM’s comparison of the proposed Project to the nearly 60-year- old Station is an apples-to-oranges comparison. The proposed Bay Bridge Pump Station is an essential critical facility that has been designed to minimize the footprint while meeting the modern-day functional requirements of the facility . Functionality takes into consideration the current codes and the safety, reliability, and maintainability of the mechanical, electrical and control system of the pump sta tion for long -term continued operability. A majority of the pump station mechanical equipment will be below grade (below ground level). The new pump station has a larger underground footprint to meet current industry hydraulic standards, unlike the existing pump that was constructed nearly 60 years ago. The above-grade structures include an electrical building, generator building, and odor control structure. The electrical building is designed in accordance with the National Electrical Code (NEC), except that the distance between 480 -volt electrical 13-118
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equipment is six feet (per OC San’s standards) instead of four feet (per the NEC) for safety reasons as it provides an electrician with the proper working clearance to verify the equipment is properly de -energized. This safety feature only increases the depth of the building by four feet. The designed electrical equipment also includes additional reliability and redundancy, which offers additional environmental protection by preventing a sewage spill flowing from a single point of failure. The standby generator maintains pump station operation during a utility power failure, like the existing pump station. Additionally, new Odor Control facilities are being provided to meet OC San’s high standards to minimize impacts to surrounding neighbors. This new feature, not present in the current Station, accounts for a significant portion of the larger footprint.
Figures 1, 2, and 3 depict the lay out of the above grade facilities, specifically, electrical room, generator room, and odor control structure, respectively. The size of the buildings has been optimized to house the required equipment to maintain pump station functionality.
Figure 1 – Electrical Room Layout
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OCSD’s Response to Appeal of OC San Bay Bridge Pump Station February 14, 2024
Figure 2 – Generator Room Layout
Figure 3 – Odor Control Structure
The Project’s size and footprint are consistent with the footprint of similar, modern Pump Stations. The Bay Bridge Pump Station’s proposed building size is comparable to OC San’s Bitter Point Pump Station (5904 West Coast Highway, Newport Beach) constructed 13-120
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approximately 12 years ago. Table 1 lists the sizes of the buildings. Bitter Point Pump Station does not have an odor control facility since there are no current or future known developments in the vicinity of the Bitter Point Pump Station.
Table 1 – Above Grade Building Square Footage Comparison
Bitter Point Pump Station Proposed Bay Bridge Pump
Station
Electrical 1,300 1,600
Generator 800 700
Odor Control N/A 1,800
Building Height:
The height of the Project is relatively modest. The top of the electrical building (tallest building on the site) is designed to be at Elevation 36.00, which is 23.75 feet above adjacent grade. This is only about 66% of the maximum height above adjacent grade allowed by the City in this area. The City’s Planned Community (PC -9) allows building heights to a maximum of 35 feet above adjacent grade at the location of the pump station height zone (Zone PA). Further, the height of the Project considers the preliminary design information provided by BVM of its planned Back Bay Landing development. BVM anticipated that its development will include a building situated behind the Project which will be much taller than the electrical building. The electrical building was designed t o unobtrusively stand in the shadow of the taller , planned BVM building if BVM ever proceeds with the development.
The pump station height is also driven by the following safety and environmental factors:
• Building raised to protect from tsunami caused flooding; • Electrical and mechanical equipment required for the pump station operation; and • Roof parapet to screen the roof-mounted HVAC equipment.
Figure 4 illustrates a cross section of the electrical building with the electrical panels, HVAC equipment both inside the building and roof, and the parapet. HVAC is required to cool critical electrical equipment and prevent corrosion from the coastal environment. 13-121
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Figure 4 – Generator Room Layout
BVM Appeal Topic #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 Land Use Plan, the Back Bay Landing Planned Community Development Plan (“PCDP”), and key provisions of the California Coastal Act. The 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.
OC San Response #3: The trial court in the resolved CEQA litigation specifically rejected BVM’s claims that the Project is inconsistent with the PCDP, the Newport Beach Local Coastal Program and the Coastal Act. (Exhibit A [12/16/22 Ruling] at pp. 10-14.) Indeed, the EIR had a lengthy 25 -page provision-by-provision discussion of the Project’s compliance with these various land use plans. As shown by the trial court’s ruling, BVM’s arguments of inconsistency ultimately depend on its skewed legal interpretation of the plans’ provisions. The trial court held that BVM’s arguments were not accurate or reasonable and instead that the EIR’s analysis was supported by substantial evidence. The trial court’s ruling on the proper legal interpretation controls here.
Regardless, the Planning Commission staff report showed that the Project does not obstruct the public view corridors identified in PC -9, the Coast View Roads identified in the CLUP, or any Public Viewpoint. The Staff Report also described how the Project was designed in an aesthetic sense to be visually consistent with any future Back Bay Landing mixed-use village . Notably, while the almost 60 -year-old Pump Station needs to be 13-122
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revamped in the near term, it is substantially unclear when, or even if, Bayside will propose a project-level design for a mixed -use village, what that d esign will look like, or indeed whether the project will ever be built in any form. Further, and in any event, the Planning Commission added a condition providing for future alterations to the exterior façade of the Project for consistency and compatibility with the architecture of any future-approved Back Bay Landing project. This condition allows the City to reap the safety and environmental benefits of the Project now, while allowing for aesthetic modifications in the future if the Back Bay Landing project is ever developed.
Lastly, to the extent BVM complains about the larger foot size of the Project as compared to the almost 60-year-old existing Pump Station, OC San addressed this apples- to-oranges comparison in OC San Response #2.
• BVM Appeal Topic #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.
OC San Response #4: OC San evaluated the southern alternative in the EIR as part of the CEQA process. As part of the CEQA litigation, the trial court has determined that the EIR’s discussion of alternatives fully complied with CEQA, and that BVM’s arguments to the contrary were incorrect. (Exhibit A [12/16/22 Ruling] at pp. 8-10.) The southern alternative had several safety and environmental issues including the lack of space for a backup generator and odor control facility. The southern site is also more vulnerable to flooding, has additional environmental concerns, involves multiple property owners, and constrains any future Caltrans bridge improvements. Further, the southern site would have required the construction of a new connection to the OC San gravity sewer system. The gravity sewer would still need to be microtunneled under East Coast Highway.
• BVM Appeal Topic #5: Contrary to Planning Staff’s assertions (page 9) in the January 18 Planning Commission Staff Report, the proposed expanded, 2 2-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” OC San Response #5: The Project is aesthetically designed to be non-descript and to blend into the Back Bay Landing development (if such development ever gets of f the ground).
This issue was addressed at the January 18, 2024 meeting.
During the Planning Commission meeting on January 1 8, 2024, Planning Commissioner Langford asked BVM’s Michael Gelfand if he agreed with the architectural 13-123
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theme of what is being presented and if it would match whatever the future intentions of what his future project would look like since he was the direct neighbor that was affected the most. The original plan was coastal Mediterranean. Mr. Gelfand stated that this is certainly what they had in mind, but the reality is that OC San is kind of a shell. If and when he moves forward, he would propose to OC San that the exterior façade be changed to match. His main concern is not the actual design from an aesthetic standpoint. It is the footprint, setbacks, easement through the middle of the property, and the size along PCH. (1/18/24 Transcript at 58:45 -60:00.) Ironically, BVM has already conceded these points in its eminent domain litigation and has lost its challenges, as part of the CEQA litigation, to the environmental review conducted for the Project.
In the aftermath of the January 18, 2024 meeting, recognizing that Newport Beach could secure the safety and environmental benefits of a state-of-the-art Pump Station now, while securing aesthetic harmonization with a potential Back Bay Landing project later in the event the Back Pay project proceeds, the Commission adopted a condition providing for future alterations to the exterior façade of the Project for consistency and compatibility with the architecture of any future-approved Back Bay Landing project.
Lastly, as to the appropriateness of the Newport Harbor coastal location, this issue was looked at detail in the EIR, and reviewed and affirmed in Court as part of the CEQA litigation. Whatever BVM’s objection, it is, respectfully, of no moment in the face of OC San’s court -approved application of its expertise in selecting the location and characteristics of the Project.
• BVM Appeal Topic #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.
OC San Response #6: There is no reasonable basis by which BVM can dispute OC San’s determination that an upgraded BBPS facility is necessary. As the trial court found in the CEQA litigation, the “ record contains evidence that the current pump station is deteriorating and does not meet current standards for construction, electrical equipment, or maintenance… The record also contains evidence that failure of the system could result in the release of sewage into Newport Bay. ” (Exhibit A [12/16/22 Ruling] at p. 14.) California law, specifically Section 30231 of the Coastal Act imposes a mandatory policy for protecting Newport Beach’s water quality (it “shall be maintained ”). In accord, OC San is an agency solely tasked with ensuring the collection, treatment, and disposal of wastewater for approximately 2.6 million people in central and northwest Orange County. 13-124
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It is odd that BVM believes that it is in any position to question OC San’s court-approved technical determination that this Project needs to move forward post haste.
Even more puzzling, BVM has already conceded this point. In a joint status conference statement recently filed in the eminent domain action, BVM agreed that it has waived any dispute as to the public use and necessity for the Project: “The parties agree that the public use and necessity for project and acquisition are no longer at issue in this case, leaving the amount of compensation due as the sole remaining issue.” (Exhibit D [1/31/24 Joint Statement] at pp. 4-5; see also id. at p. 3 [“BVM having now waived all its challenges and objections to OC San's right to acquire the Property Interests…”].) Of specific note, the statement ma de by BVM that the BBPS facility was refurbished and mechanically upgraded in 2014 is not accurate. In 2014, OC San added a pump to increase reliability in the pump station and provide a backup pump for wet weather conditions. But this was a stop gap sol ution that allows OC San the time to complete the Project on the current schedule. It was not undertaken to enable the further delay that BVM effectively seeks with the Appeal.
The timely completion of the Project is important. Safe and reliable infrastructure is essential to providing industry-leading wastewater collection and management. OC San manages asset reliability, mitigates risk, and ensures the quality of our delivered services.
OC San captures facility condition information in our Asset Manag ement Plan which can be found online Document Central | Orange County Sanitation District (ocsan.gov) . The 2023 Asset Management Plan identifies Bay Bridge Pump Station as having a Remaining Useful Life (RUL) of less than 5 years as shown in the table below:
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This finding aligns with previous asset management plans and the schedule for the current pump station and force main replacement project. Now is the time to implement this Project to address the critical major assets that need to be replaced.
Next, the statement made by BVM that OC San has not even received a complete, filed CDP application with the California Coastal Commission is inaccurate. On January 24, 2024, OC San received notification from the California Coastal Commission that they have filed our application as complete. Indeed, as is the case with other necessary approvals, the fact that OC San did not file a California Coastal Commission application sooner is the direct result of BVM’s ultimately meritless CEQA challenge to the project.
But for that, Newport Beach would be closer to reaping the benefits of a state-of-the-art Pump Station.
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Lastly, OC San has been working cooperatively with Caltrans and believe we have a path forward to obtain an encroachment permit.
• BVM Appeal Topic #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.
OC San Response #7: OC San has articulated the environmental and safety reasons as to why it is important that the Project proceed according to schedule without any further delays in Response #6. Likewise, BVM’s substance-free categorization of the project as “ill-advised” and “risky” stands in contrast to the thorough analysis found in the EIR, which was affirmed by the trial court in the CEQA litigation.
In any event, BVM has waived its right to challenge the location of the proposed expansion. BVM has already withdrawn a deposit of over $4.3 million of taxpayer dollars that is entirely dependent on OC San’s ability to obtain BVM’s property at the specific location at issue here in this approval. BVM was not required to withdraw this money. It could have retained its right to challenge OC San’s right to acquire property at this location.
It did not. It is far too late for BVM to now ask for an alternative location.
As to the disruption caused by the construction of the Project, the number of truck trips will ebb and flow with the stage of project construction . The Recirculated Environmental Impact Report identifies the average number of truck trips to the site during the significant construction periods:
• Demolition Activities -- 10 average trucks per day
• Grading Activities – 25 average trucks per day
• Building Construction – 16 average trucks per day
• Installation of Force Mains – 28 trips per day
• Gravity Sewer Improvements – 23 trips per day
Given the state of the existing Pump Station, construction in the near te rm is necessary.
The sooner the Project proceeds, the sooner construction will finish. In the aftermath, 13-127
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Newport Beach will benefit from a state-of-the-art Pump Station which will protect the environment, wildlife, and the health of Newport Beach residents for decades.
Sincerely,
Matt Wickersham
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EXHIBIT A
[OCSD Response to 1/31/24 Appeal]
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SUPERIOR COURT OF CALIFORNIA,
MINUTE ORDER
JUDICIAL OFFICER PRESIDING: William Claster
COUNTY OF ORANGE
CIVIL COMPLEX CENTER
DATE: 12/16/2022 DEPT: CX104TIME: 02:16:00 PM
CLERK: G. Hernandez
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: . None
CASE INIT.DATE: 04/01/2021CASE NO: 30-2021-01194238-CU-WM-CXC CASE TITLE: BAYSIDE VILLAGE MARINA, LLC vs. ORANGE COUNTY SANITATION
DISTRICT
CASE CATEGORY: Civil - Unlimited CASE TYPE: Writ of Mandate EVENT ID/DOCUMENT ID: 73909236
EVENT TYPE: Under Submission Ruling
APPEARANCES
RE PETITIONER'S WRIT OF MANDATE
There are no appearances by any party.
The Court, having taken the above-entitled matter under submission on 12/14/2022 and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now issues its ruling. The Court's ruling is attached hereto and incorporated herein by reference.
Court orders clerk to give notice.
MINUTE ORDER
DATE: 12/16/2022
DEPT: CX104 Calendar No.
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Petitioner Bayside Village Marina LLC (Bayside) seeks a writ of mandate compelling Respondent Orange County Sanitation District (“OCSD” or the “District”) to vacate and set aside its approval of (1) the OCSD’s Bay Bridge Pump Station and Force Mains (“BBPS”) replacement project (“Project”) located on East Coast Highway in Newport Beach, and (2) the certification of the Recirculated Environmental Impact Report (“REIR”) for the Project. For the reasons set forth below, the Court GRANTS a limited writ as set forth below.
I. B ACKGROUND
Bayside is the owner of 31.4 acres of property located at East Coast Highway in the City of Newport Beach, California between Newport Channel and Bayside Drive. (ROA 25, First Amended Verified Petition (Petition), ¶ 9; AR230.) Approximately 24 acres of Bayside’s property are developed with mobile homes, and the remaining seven acres contain an outdoor storage space of RVs and small boats, parking and restrooms facilities for the Bayside Marina, a kayak rental and launch facility, parking and access to Pearson’s Port seafood market, and marine service equipment storage under the Coast Highway Bridge (“BVM Property”). (AR230, 011290.)
The seven acres are being developed as the “Back Bay Landing” Project, which is a mixed-use development that will be implemented pursuant to the Newport Beach- and Coastal Commission-approved Back Bay Planned Community Development Plan (“PCDP”). It will have a boat storage facility, retail stores and recreational marine-related facilities and residential units. (AR226, 230, 3274, 7539-97; Petition, ¶ 9.) Bayside is also the developer of this Back Bay project. (Petition, ¶ 9.)
OCSD owns and operates the BBPS, which is located at 300 East Coast Highway in Newport Beach, just east of the Newport Bay Channel. (ROA 103, Opp., p. 8; AR186.) BBPS transports sewage or wastewater through pipelines to OCSD’s 13-131
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sewage treatment plant in Huntington Beach and is a piece of critical infrastructures that conveys 50-60% of the total wastewater flow generated in Newport Beach. (ROA 103, Opp., p. 8; AR186.) BBPS is located on the southern boundary of Bayside’s property, is surrounded on three sides by that property, and is adjacent to the Back Bay Landing Project. (AR230, 3206.)
The District’s Project involves the construction of a new, larger pump station extending 100 feet to the west of the existing pump station and the installation of new force mains. (AR186 and 237.) The new pump station facilities will include a pump station, generator and odor control facilities. (AR186, 230.)
Planning on the Project started in 2013. (AR3206.) Since the Bayside Property, and particularly the Back Bay Landing Project, surrounds the Project, from 2014-2016, Bayside and OCSD exchanged information and worked together to discuss alternatives for the Project. (See e.g., AR3206, 6371-72, 7040-43,7090, 7324, 7342-43, 15667, 16128-131.)
In June 2017, OCSD published a draft EIR that analyzed a version of the Project involving the demolition of the existing facility, construction of a new and larger facility adjacent to Bayside Drive and installation of force main improvements beneath the Newport Bay Channel north of the Bay Bridge. (AR236, AR9383-84.) The District never presented the 2017 Final EIR to its Board of Directors for approval due to conflicts with the planned development of the Back Bay Landing Project. (AR236, AR1501-1506.)
In July 2019, OCSD published a recirculated EIR with three alternatives for the Project. (AR236, AR11613-14.) During the public comment period, there were concerns regarding the three conceptual site plans, including confusion about one of the alternatives known as the South Pump Station. (AR236.) OCSD did not present the 2019 EIR to the OCSD Board.
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Instead, OCSD decided to select one conceptual site plan and construction method and update the EIR in its entirety. (AR236.) The concept chosen and analyzed in the 2020 recirculated EIR (REIR) is the Adjacent Pump Station, which is essentially the South Pump Station alternative in the 2019 REIR. (AR237.)
The Final EIR (FEIR) was published in January 2021 and approved on March 1, 2021. (AR1-3.)
II. OVER
VIEW OF CEQA PROCESS
“CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.]” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) It applies to “discretionary projects proposed to be carried out or approved by public agencies.” (Pub. Resources Code, § 21080(a).) “In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties. [Citations.] CEQA is to be interpreted ‘to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ [Citation.]” (Mountain Lion Foundation, supra, 16 Cal.4th at p. 112.)
An EIR, which has been described as “the heart of CEQA” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564), “is required for any project that a public agency proposes to carry out or approve that may have a significant effect on the environment. [Citations.] An EIR must describe the proposed project and its environmental setting, state the objectives sought to be achieved, identify and analyze the significant effects on the environment, state how those impacts can be mitigated or avoided, and identify and analyze alternatives to the project, 13-133
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among other requirements. [Citations.]” (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 465-66 (Ballona).)
Once a draft EIR is prepared, the public must be notified, and the draft and all documents it references must be made available for public review and comment. (Pub. Resources Code, §§ 21091(a), 21092; CEQA Guidelines, § 15087. 1) The
public agency acting as the lead agency then prepares a final EIR, which must include comments received from the public and from other agencies concerning the draft EIR, responses to those comments, and any revisions to the draft EIR. (CEQA Guidelines, §§ 15088, 15132; Ballona, supra, 201 Cal.App.4th at p. 466.)
III. P
ROJEC T DESCRIPTION
A. O verview
Bayside asserts that the EIR description of the Project and its environmental setting is “inaccurate and unstable.” “The fundamental goal of an EIR is to inform decision makers and the public of any significant adverse effects a project is likely to have on the physical environment. [Citations.] To make such an assessment, an EIR must delineate environmental conditions prevailing absent the project, defining a baseline against which predicted effects can be described and quantified. [Citation.]” (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Ca1.4th 439, 447.) This generally includes providing “a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective.” (Id., at p. 448; see CEQA Guidelines, § 15125(a).)
1 References to the CEQA Guidelines are to Cal. Code Regs., tit. 14, § 15000 et seq. 13-134
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“Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that the [EIR] adequately investigated and discussed the environmental impacts of the development project.” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729 (San Joaquin Raptor).) Thus, [i]f the description of the environmental setting of the project site and surrounding area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA.” (Cadiz Land Co. v.
Rail Cycle (2000) 83 Cal.App.4th 74, 87.)
B . Failure to Identify Neighboring Commercial Operations
Bayside contends that repeated use of the phrase “RV Storage facility” obscures “the site’s coastal-dependent, visitor serving uses.” (Pet. Supp. Br. at p. 16.) Indeed, a number of businesses on the west side of the Project site (e.g., Southwind Kayaks, Gondola Adventures) are not mentioned by name anywhere in any EIR.
While it is true that these businesses are not referenced by name and that the site is referred to as an RV Storage facility (presumably since RVs are stored near where the actual construction will take place), those references do not create an inaccurate picture of the Project. In fact, the EIR refers to these businesses on the west side of the Project as “commercial” or “commercial recreation marine uses” in a number of places. (AR230, 234, 260, 392, 436.) The businesses also are listed on Table 3-1 under “General Commercial.“ (AR235.)
The fact that the site is called an RV Storage facility is not misleading when considering the EIR as a whole. The above-cited references to commercial activity and the various maps/photos of the Project site overcome this alleged shortcoming.
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A related purported flaw in the EIR’s Project description is the failure to address the potential adverse physical impacts Project construction would have on these businesses. On the contrary, such analysis is found at AR 473-482 regarding noise and vibrations during construction, and at AR 302-305 with respect to air quality.
In terms of traffic, the EIR makes clear that access to the Project site will be shared via Bayside Drive by construction vehicles and users of the commercial facilities. As to the added construction and operational traffic, the EIR addresses these issues at AR499 and in Impact Statement TRA-4.
C. C
onstruction Staging Area Description
Bayside contends that the Project description is inaccurate and, indeed, is an “unstable moving target” by virtue of the failure to describe and evaluate a construction staging area. The Court agrees. The 2020 REIR includes several references to construction staging. Page 3-11 states: “Portions of the adjacent private property (currently a RV storage area) and Lower Castaways Park could be temporarily utilized for construction staging, if these areas are available during construction of the proposed project.” (AR241.) Then, in response to a letter from the City of Newport Beach stating that the Lower Castaways would not be available (AR1120), the 2021 FEIR noted: “Should Lower Castaways not be available, construction staging would occur within other proposed areas of disturbance (as identified in the project boundary shown on 2020 Recirculated Draft EIR Exhibit 3-4).” (AR1127.)
Exhibit 3-4 is a Proposed Conceptual Site Plan that shows the areas (highlighted in yellow) where the proposed project construction will take place as well as the Lower Castaways. (AR238.) A virtually identical site plan (also highlighted in yellow) is found at Exhibit 3-6 which is entitled Adjacent Pump Station Work Areas. (AR243.) According to OCSD’s supplemental brief, based on the unavailability of the Lower Castaways, “the construction staging will occur 13-136
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somewhere in this Adjacent Pump Station Work Area.” (OCSD Supp. Br. at p. 12.) Based on this statement, the District argues in its supplemental brief that it satisfied CEQA since the EIR “considered all potential impacts that could occur in the Adjacent Area.”
However, based on a review of Exhibits 3-4 and 3-6, it is unclear whether creating a staging area in the limited designated space is even possible. With the exception of the Lower Castaways, the Coast Highway and the Newport channel, it appears that the areas highlighted in yellow are where virtually all of the construction actually will take place. Certainly, no specific location with adequate square footage is identified, nor is there any analysis as to whether Mitigation Measures AES-1 and TRA-1 would apply to any area other than the Lower Castaways.
Perhaps a more significant problem with the statements in both the FEIR and supplemental brief about an alternative site in the project area is that they may well be inaccurate. Indeed, TRA-1 tends to contradict OCSD’s supplemental brief by virtue of acknowledging that future staging areas may be located off-site:
“[construction drawings shall] identify any and all construction staging or material storage sites located outside of the project site.” (AR206 [emphasis added].)
Compounding this problem, counsel for the District told the Court at an earlier hearing that the lowest responsible bidder on the Project will have complete discretion to decide where staging will occur and how many staging sites will be necessary. (August 4, 2022 Transcript at pp. 11-12.) Importantly, by not limiting that comment to sites within the yellow-highlighted boundaries of Exhibits 3-4 or 3-6, the District appears to acknowledge that staging sites not identified in either the REIR or FEIR might be utilized. Given that uncertainty, Bayside’s argument regarding a lack of a complete, accurate and stable project description has merit.
More specifically, the District’s argument (OCSD Supp. Br. at p. 12) that the EIR considered all environmental impacts (biological, noise, aesthetics, etc.) in the 13-137
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Adjacent Area fails to account for any potential impacts that might occur if the construction staging area occurs elsewhere. Without identifying the area or areas where staging will occur, the public is left in the dark about whether that staging will have any effects on the environment at location(s) yet to be identified.
Counsel’s statement that the lowest responsible bidder will have complete discretion with regard to construction staging also renders the mitigation measures of AES-1 toothless. AES-1 purports to minimize aesthetic impacts of construction by requiring the District’s Director of Engineering to personally approve construction staging areas, transport routes, etc. before grading or demolition permits are issued. To the extent AES-1 actually imposes enforceable standards (which the Court questions), it cannot be reconciled with the vesting of complete discretion in the lowest responsible bidder.
IV. C
ONSIDERATION OF ALTERNATIVES
“An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible. The lead agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives. There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” (CEQA Guidelines, § 15126.6(a).)
The EIR identified five alternatives to the Project to analyze in detail: the “no project” scenario, the “adjacent project/microtunneling” scenario, the “original 13-138
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northeast pump station with horizontal directional drilling” scenario, the “rehabilitate in place with microtunneling” scenario, and the “pump station south relocation with microtunneling” scenario. (AR539-540.) Nearly 40 pages of analysis are devoted to comparing each of these alternatives to the Project. (AR540-578.)
Bayside does not challenge the analysis presented. Rather, it faults the EIR for failing to discuss two additional alternatives: the “Expand-in-Place” scenario and alternative alignments for the dual force mains south of East Coast Highway.
“Courts will defer to an agency’s selection of alternatives unless the petitioners (1) demonstrate that the chosen alternatives are “ ‘ “manifestly unreasonable and ... do not contribute to a reasonable range of alternatives,” ’ ” and (2) submit evidence showing the rejected alternative was both “feasible” and “adequate,” because it was capable of attaining most of the basic objectives of the project, taking into account site suitability, economic viability, availability of infrastructure, general plan consistency, and other relevant factors. [Citation.]” (South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 345.)
The Court assumes for the sake of argument that the “Expand-in-Place” scenario and the alternative alignments for the dual force mains are both feasible and adequate. That is, the Court assumes Bayside has met the second prong of its burden.
However, Bayside fails to meet the first prong of its burden. “The ‘key issue’ is whether the range of alternatives discussed fosters informed decisionmaking and public participation. [Citation.]” (Cherry Valley Pass Acres & Neighbors v. City of Beaumont (190 Cal.App.4th 316, 354.) Bayside complains that two alternatives were not considered, but it identifies no authority holding that the failure to consider a specific alternative or alternatives automatically renders the range of 13-139
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alternatives considered “manifestly unreasonable” or insufficient to “foster informed decisionmaking.” (Compare id., at p. 355 [“Though one or more of these 328 imaginable alternatives may have represented the optimum number of residences that could have profitably been built while minimizing the agricultural impacts of the project to the fullest extent possible, the range of alternatives discussed in the EIR was sufficient to foster informed decisionmaking on this very question.”].)
V. I
NCONSISTENCIES WITH P LANS
A. O verview
Bayside contends the EIR is fatally flawed because it fails to disclose the Project’s inconsistencies with the PCDP, the Newport Beach Local Coastal Program (“LCP”), and the Coastal Act.
An EIR must discuss “any inconsistencies between the proposed project and applicable general plans, specific plans and regional plan.” (CEQA Guidelines § 15125(d).) This includes inconsistencies with the Coastal Act. (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1233.) A determination of consistency “comes to this [C]ourt with a strong presumption of regularity. [Citation.] To overcome that presumption, an abuse of discretion must be shown. [Citations.] An abuse of discretion is established only if the city council has not proceeded in a manner required by law, its decision is not supported by findings, or the findings are not supported by substantial evidence. [Citation].” (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 717.) “It is, emphatically, not the role of the courts to micro-manage these development decisions. Our function is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies, whether the city officials made appropriate 13-140
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findings on this issue, and whether those findings are supported by substantial evidence.” (Id., at pp. 719-20 [emphasis in original].) In addition, Bayside’s opening brief suggests the EIR is inadequate to the extent it fails to explain why the District found the Project consistent with applicable plans. (Pet. Opening Br. at p. 19, lines 6-8.) Because EIRs need only evaluate inconsistencies with plans, no analysis is required if the project is consistent with plans. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 632 [citing City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 918-19].) Insofar as Bayside argues the explanation of consistency is inadequate (as opposed to arguing the finding of consistency is an abuse of discretion), this challenge fails.
B . PCDP Inconsistency
The PCDP contains zoning regulations that dictate acceptable land uses in each “Planning Area” it covers. It is undisputed that both the current pump station and the new pump station to be built as part of the Project are in Planning Area 1.
According to the PCDP, “Wastewater Pump Station” is a permitted land use in Planning Area 1. (AR7615.)
Bayside nevertheless contends the Project is inconsistent with the PCDP. It argues that the PCDP “identifies the existence of the BBPS, however, only at its current size and location, not the expanded size and altered location contemplated by the Final EIR.” (Pet. Opening Br. at p. 18.) The claimed inconsistency apparently arises from conceptual drawings attached to the PCDP (for parking plans, public spaces, etc.) that show the BBPS in its current location in the context of the larger planning area. (See AR7650-7663.) That is, as the Court understands the argument, because the conceptual drawings show the current BBPS, any deviation is an inconsistency.
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As the District points out in opposition, the PCDP imposes specific numeric limits on the square footage of commercial, residential, marina, and dry dock use in Planning Area 1, but not wastewater pump use. (AR7612.) The conceptual drawings do not on their face appear to limit the size or the location of the pumping station, only to show it in relation to other then-existing uses for planning purposes. The only explicit limitation placed on a wastewater pump station by the PCDP is that it must be in Planning Area 1. As to Bayside’s contention that AR7549 allows the pump station also to be in Planning Area 2 (a contention that the Court will accept even though it does not appear that AR7549 is in the record filed with the Court), that fact does not establish PCDP inconsistency. Accordingly, the Court cannot say the finding of consistency is unsupported by substantial evidence.
C. L
CP Consistency
Bayside contends the Project is inconsistent with policy 2.1.9 of the LCP because that policy “mandate[s] protection and expansion of coastal-dependent over commercial/industrial uses.” (Pet.’s Opening Br. at p. 17.) As the District points out, nothing in policy 2.1.9 or its associated sub-policies discusses the relative priority of coastal-dependent uses vis-à-vis utility uses like the Project. (Furthermore, it appears the only hard-and-fast priority is that coastal-dependent uses are prioritized over residential uses, not over commercial/industrial uses.
See policy 2.1.9-1, at AR11289.)
In any event, the City correctly notes that relative priority matters only if the Back Bay Landing development and the Project are a zero-sum game in terms of developed square footage. Under the PCDP, square footage for a wastewater pump station does not count against commercial, residential, marina, or dry dock square footage. (See AR7612.) The Court cannot say the finding of consistency is unsupported by substantial evidence.
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D. C oastal Act Consistency
Bayside contends the Project is inconsistent with multiple sections of the Coastal Act, in particular Pub. Resources Code §§ 30213, 30221, 30222, 30224, and 30253(e), and policy 3.2.1-1 of the LCP, which similarly requires protection of coastal recreation opportunities.
The Court agrees with the District that § 30222 is inapplicable. On its face, that statute prioritizes “visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation . . . over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry.” Again, the Project is a utility use, not one of the categories enumerated in this statute.
Of the remaining provisions, the only one discussed in any detail in Bayside’s briefing (opening, reply, or supplemental) is § 30253(e) of the Coastal Act. The remainder are simply referred to in laundry lists without discussion of any particular alleged inconsistencies. Because Bayside bears the burden of showing an abuse of discretion, the Court finds the failure to specifically discuss §§ 30123, 30221, and 30224 of the Coastal Act, as well as policy 3.2.1-1 of the LCP, means Bayside has not shown an abuse of discretion in the District’s finding of consistency.
As to § 30253(e), it provides: “New development shall . . . [w]here appropriate, protect special communities and neighborhoods that, because of their unique characteristics, are popular visitor destination points for recreational use.” “Where appropriate” is an important qualifier here, as the District flags a competing provision of the Coastal Act, § 30231, which provides: “The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored 13-143
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through, among other means, minimizing adverse effects of waste water discharges and entrainment . . . .”
The administrative record contains evidence that the current pump station is deteriorating and does not meet current standards for construction, electrical equipment, or maintenance. (AR187.) The record also contains evidence that failure of the system could result in the release of sewage into Newport Bay. (AR187, 245.) Section 30231 of the Coastal Act imposes a mandatory policy for protecting water quality (it “shall be maintained”), while § 30253(e) only imposes a duty to protect recreational use “where appropriate.” On this record, the Court cannot say the District lacked substantial evidence to conclude its duties under § 30231 prevailed over its duties under § 30253(e), and thereby to conclude the Project is consistent with the Coastal Act. Put another way, Bayside must show the District abused its discretion in finding the “where appropriate” qualifier in § 30253(e) inapplicable here, and it has not met its burden to do so.
VI. A
DEQUACY OF RESPONSES TO COMMENTS
Bayside contends the District’s response to comments prior to certification of the FEIR is inadequate. The Court agrees with the District that Bayside failed to exhaust its administrative remedies on this issue. “[T]he time for complaining about the inadequacy of [the District’s] responses was when the issue was before the agency and any alleged deficiency could be explained or corrected.” (Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671, 682.) Bayside points to nothing in the record indicating that the alleged inadequacy of the District’s responses was raised at the administrative stage. As a result, this challenge is barred.
Bayside responds that the foregoing statement from Towards Responsibility is dictum unnecessary to the holding. This is true enough, as the Court of Appeal in that case found the agency’s response to comments adequate on the merits. But 13-144
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“[t]o say that dicta are not controlling [citation] does not mean that they are to be ignored; on the contrary, dicta are often followed.” (9 Witkin, Cal. Procedure (6th ed. 2022) Appeal § 532.) And while Bayside cites a number of cases on page 21 of its supplemental brief holding that inadequate responses to comments may render an EIR defective, none of those cases discusses the effect of the challenger’s failure to raise the inadequacy issue before the agency.
VII. R
EMEDIES AND CONCLUSION
For the reasons set forth above, Bayside’s petition is GRANTED on the ground that the description of the construction staging area is inadequate, and for the related reason that AES-1 is a toothless mitigation measure as a result.
Bayside asks the Court to set aside the District’s Project approvals and EIR certification. Public Resources Code § 21168.9 gives the Court discretion to fashion a narrower remedy. “The 1993 amendments to section 21168.9 expanded the trial court’s authority and ‘expressly authorized the court to fashion a remedy that permits some part of the project to go forward while an agency seeks to remedy its CEQA violations. In other words, the issuance of a writ need not always halt all work on a project.’ [Citation.]” (San Bernardino Valley Audubon Soc. V.
Metropolitan Water Dist. of Southern California (2001) 89 Cal.App.4th 1097, 1104- 1105.) “The choice of a lesser remedy involves the trial court’s consideration of equitable principles.” (Id., at p. 1104.)
As discussed above, Bayside’s challenge is largely unsuccessful. And the vast majority of Bayside’s challenge has little, if anything, to do with construction staging issues. The Court therefore finds the remainder of the Project severable from the construction staging issues. The Court further finds severance will not prejudice full and complete compliance with CEQA, because the remainder of the Project is CEQA-compliant. (Pub. Resources Code § 21168.9(b).) 13-145
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In considering equitable principles to fashion a remedy, the Court is especially mindful of the severe risk to the environment that would be posed by the outdated pumping station and force mains failing and spilling raw sewage into Newport Bay. Furthermore, as explained in the District’s filings in the companion eminent domain case, permitting from the relevant authorities is expected to take 9-12 months, with construction not starting for another six months after that. (See OC Superior Court case no. 2022-01251890, ROA 92, at pp. 2-3.) Based on representations made at the hearing, it appears that the City will not allow the permitting process to start without OCSD approval of the Project and its certification of the EIR. Of course, stalling that already lengthy process increases the risk of the very sewage spill the Project seeks to prevent.
Because the issues with construction staging are both severable and appear to be readily correctable, and given the overriding need for the Project, OCSD will not be required to withdraw its approvals for the Project and certification of the EIR.
As explained by the court in Preserve Wild Santee v. City of Santee (2012) 210 Cal.
App. 4
th 260, 287-88:
In our view, a reasonable, commonsense reading of section 21168. 9 plainly forecloses plaintiffs' assertion that a trial court must mandate a public agency decertify the EIR and void all related project approvals in every instance where the court finds an EIR violates CEQA. Such a rigid requirement directly conflicts with the “in part” language in section 21168.9, subdivision (a)(1), which specifically allows a court to direct its mandates to parts of determinations, parts of findings, or parts of decisions. Such a rigid requirement also conflicts with the language in section 21168. 9, subdivision (b), limiting the court's mandates to only those necessary to achieve CEQA compliance and, if the court makes specified findings, to only “that portion of a determination, finding, or decision” violating CEQA. (Italics added.)
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Accordingly, the Court will impose the limited remedy of requiring OCSD to bring the EIR into CEQA compliance with respect to the construction staging issue and the related question of the enforceability of AES-1. Because the District’s CEQA noncompliance involves construction issues, this means no construction or other physical activity may take place at the Project site until the District is in compliance with CEQA. Whether bringing the EIR into compliance can be accomplished via a supplemental EIR (CEQA Guidelines § 15163) or an addendum (CEQA Guidelines § 15164) will be left to OCSD to decide.
Note that the Court’s order includes only these mandates, which are necessary to achieve compliance with CEQA. (See Pub. Resources Code § 21168.9(b).) In order to avoid unnecessary delay that increases the risk of a sewage spill, the District may continue to seek the necessary permits from the City, Coastal Commission, etc. to move forward with the Project, and it may continue to pursue the companion eminent domain action.
Bayside shall prepare a proposed order in accordance with this ruling and provide it to OCSD for comments before submitting it to the Court. 13-147
EXHIBIT B
[OCSD Response to 1/31/24 Appeal]
13-148
Fee Exempt Per Gov. Code § 6103
1 WOODRUFF & SMART, APC
BRADLEY R. HOGIN - State Bar No. 140372
2 [email protected]
RICIA R. HAGER - State Bar No. 234052
3 [email protected]
555 Anton Boulevard, Suite 1200
4 Costa Mesa, CA 92626-7670
Telephone: (714) 558-7000
5 Facsimile: (714) 835-7787
6 Attorneys for Respondent ORANGE COUNTY SANITATION DISTRICT et. al. 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
10 11
12 13
14 15
16 17
18 19
20 21
22 This stipulation is entered into between the parties through their respective counsel as 23 follows:
24 RECITALS
25 WHEREAS, on February 7, 2023, the Court entered a Peremptory Writ of Mandate in 26 this matter;
27 WHEREAS, on July 27, 2023, Respondent Orange County Sanitation District timely 28 filed a Return on the Peremptory Writ of Mandate (the “Return”); 1 STIPULATION DISCHARGING THE PREEMPTORY WRIT OF MANDATE AND DISMI SSING THE CASE; [PROPOSED] ORDER 1786198.1
WOODRUFF, SPRADLIN
& SMART
ATTORNEYS AT LAW
COSTA MESA
BAYSIDE VILLAGE MARINA, LLC,
Petitioner,
v.
ORANGE COUNTY SANITATION
DISTRICT; ORANGE COUNTY
SANITATION DISTRICT BOARD OF
DIRECTORS; AND DOES 1-25,
INCLUSIVE,
Respondents.
CASE NO.: 30-2021-01194238
ASSIGNED FOR ALL PURPOSES TO
THE HONORABLE WILLIAM
CLASTER
DEPARTMENT: CX104
STIPULATION DISCHARGING THE
PEREMPTORY WRIT OF MANDATE
AND DISMISSING THE CASE;
[PROPOSED] ORDER
HEARING DATES PENDING:
Type: Hearing on Writ Return
Date: November 3, 2023
Time: 10:30 a.m.
Dept: CX104
DATE ACTION FILED: April 19, 2021
TRIAL DATE: None
Electronically Filed by Superior Court of California, County of Orange, 08/28/2023 03:49:00 PM. 30-2021-01194238-CU-WM-CXC - ROA # 226 - DAVID H. YAMASAKI, Clerk of the Court By G. Hernandez, Deputy Clerk. 13-149
1 WHEREAS, Petitioners previously requested, and the Court set, a hearing on the 2 Return for November 3, 2023;
3 WHEREAS, the parties now agree that the Peremptory Writ of Mandate should be 4 discharged;
5 WHEREAS, the parties agree the hearing set for November 3, 2023 should be 6 vacated; and
7 WHEREAS, the parties agree that the case should be dismissed. 8 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED:
9 1. The Peremptory Writ of Mandate should be discharged. 10 2. The November 3, 2023, hearing date should be vacated. 11 3. This case should be dismissed.
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 2
STIPULATION DISCHARGING THE PREEMPTORY WRIT OF MANDATE AND DISMISSING THE CASE; [PROPOSED] ORDER 1786198.1
WOODRUFF, SPRADLIN
& SMART
ATTORNEYS AT LAW
COSTA MESA
DATED: August 28, 2023 WOODRUFF & SMART, APC
By:/s/ Bradley R. Hogin
BRADLEY R. HOGIN
RICIA R. HAGER
Attorneys for Respondents ORANGE COUNTY
SANITATION DISTRICT and ORANGE
COUNTY SANITATION BOARD OF
DIRECTORS
DATED: August 24, 2023 NOSSAMAN LLP
By:
JOHN P. ERSKINE
JOHN J. FLYNN III
Attorney for Petitioner BAYSIDE VILLAGE
MARINA, LLC
13-150
1 [PROPOSED] ORDER
2 The parties having entered into a written stipulation and good cause appearing 3 therefore, IT IS HEREBY ORDERED that:
4 1. The Peremptory Writ of Mandate issued in this case on February 7, 2023 is 5 hereby discharged.
6 2. The hearing on the Return on the Peremptory Writ of Mandate set for 7 November 3, 2023, is hereby vacated.
8 3. This case is dismissed.
9 10 DATED: 08/28/2023
12 HON. WILLIAM CLASTER
13 JUDGE OF THE SUPERIOR COURT
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 1
STIPULATION DISCHARGING THE PREEMPTORY WRIT OF MANDATE AND DISMISSING THE CASE; [PROPOSED] ORDER 1786198.1
WOODRUFF & SMART
ATTORNEYS AT LAW
COSTA MESA
13-151
EXHIBIT C
[OCSD Response to 1/31/24 Appeal]
13-152
1 STIPULATION FOR ORDER RE WITHDRAWAL OF DEPOSIT OF PROBABLE COMPENSATION 1789574.1
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
WOODRUFF & SMART
ATTORNEYS AT LAW
COSTA MESA
Fee Exempt Per Gov. Code § 6103
WOODRUFF & SMART, APC
GARY C. WEISBERG - State Bar No. 132092
[email protected]
MICHAEL L. D'ANGELO -
State Bar No. 186882
[email protected]
ELIZABETH VALADEZ -
State Bar No. 216235
[email protected]
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626-7670
Telephone: (714) 558-7000
Facsimile: (714) 835-7787
Attorneys for
Plaintiff ORANGE COUNTY SANITATION DISTRICT, a public entity
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CIVIL COMPLEX CENTER
ORANGE COUNTY SANITATION DISTRICT,
a public entity,
Plaintiff,
v.
BAYSIDE VILLAGE MARINA, LLC, a
California limited liability company; LAGUNA
BEACH COUNTY WATER DISTRICT, a
public entity; DOES 1 through 100, inclusive;
and ALL PERSONS UNKNOWN CLAIMING
AN INTEREST IN THE PROPERTY,
Defendants.
CASE NO.: 30-2022-01251890-CU-EI-CXC
[Related to: 30-2021-01194238-CU-EI-CXC
Bayside Village Marina, LLC v. Orange County
Sanitation District, et al.]
ASSIGNED FOR ALL PURPOSES TO
THE HONORABLE WILLIAM CLASTER
DEPARTMENT: CX-104
STIPULATION FOR ORDER RE
WITHDRAWAL OF DEPOSIT OF
PROBABLE COMPENSATION;
[PROPOSED] ORDER THEREON
[Assessor Parcel No. 440-132-60]
HEARING DATES PENDING:
Status Conference
Date: February 7, 2024
Time: 8:30 a.m.
Dept: CX104
Trial Readiness Conference
Date: May 10, 2024
Time: 1:30 p.m.
Dept: CX104
Trial
Date: May 20, 2024
Time: 9:00 a.m.
Dept: CX104
DATE ACTION FILED: March 25, 2022
TRIAL DATE: May 20, 2024
Electronically Received by Superior Court of California, County of Orange, 09/14/2023 03:17:11 PM. 30-2022-01251890-CU-EI-CXC - ROA # 159 - DAVID H. YAMASAKI, Clerk of the Court By eClerk, Deputy Clerk. 11196161
13-153
2 STIPULATION FOR ORDER RE WITHDRAWAL OF DEPOSIT OF PROBABLE COMPENSATION 1789574.1
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
WOODRUFF & SMART
ATTORNEYS AT LAW
COSTA MESA
Plaintiff Orange County Sanitation District (“Plaintiff” or “OC San”) and Defendant Bayside Village Marina LLC, a California limited liability company (“Defendant” or “Bayside”) (individually, “Party,” and collectively, “Parties”), through their counsel of record, stipulate to Bayside’s withdrawal of the deposit of probable just compensation from the California State Treasurer in the sum of Four Million Three Hundred Seventy-Nine Thousand Five Hundred Eighteen Dollars and Zero Cents ($4,379,518.00) (“Condemnation Deposit”), with reference to the following facts:
A. On March 25, 2022, OCTA filed its complaint in eminent domain seeking to acquire certain property interests within portions of Assessor Parcel No. 440-132 -60 (the "Property"). The interests in the Subject Property sought to be acquired include one partial fee acquisition (Parcel 5- 67-01), a permanent non-exclusive access easement (Parcel 5-67 -02), a temporary road easement (Parcel 5-67-03), three temporary construction easements (Parcels 5-67-04, 5-67 -05, and 5-67 -06), and two permanent sewer easements (Parcels 5-67 -07 and 5-67 -08) (collectively, the “Property Interests”).
B. Bayside is the owner of the Property.
C. On or about April 4, 2022 , OC San deposited with the California State Treasurer's Office the Condemnation Deposit as the probable amount of compensation that would be awarded herein pursuant to Code of Civil Procedure section 1255.010, subdivision (a).
D. No portion of the Condemnation Deposit has been withdrawn by any party hereto.
E. Defendant Laguna Beach County Water District disclaimed its interest in the Condemnation Deposit via a disclaimer filed with the Court on August 29, 2022.
F. The Parties wish to enter into this stipulation to allow Bayside to immediately withdraw the entirety of the Condemnation Deposit.
IT IS THEREFORE STIPULATED AND AGREED , by and between OC San and Bayside, as follows:
1. The statements set forth above are incorporated herein through this reference.
2. No other parties have an interest in the Property Interests or in the Condemnation Deposit.
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3 STIPULATION FOR ORDER RE WITHDRAWAL OF DEPOSIT OF PROBABLE COMPENSATION 1789574.1
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3. OC San shall receive a credit in the full amount of the Condemnation Deposit against any judgement entered against it at trial, by stipulated judgment or upon the execution of an out-of- court settlement agreement between the Parties.
4. If the amount awarded by judgement in favor of Bayside and against OC San is less than the full amount of the Condemnation Deposit, Bayside shall issue payment in the excess amount to OC San within 45 days of entry of judgment.
5. Bayside is entitled to the immediate release of the Condemnation Deposit.
6. The Court may enter an Order in the form attached hereto authorizing and directing the California State Treasur er to issue payment as follows: A check in the amount of Four Million Three Hundred Seventy-Nine Thousand Five Hundred Eighteen Dollars and Zero Cents ($4,379,518.00) made payable to “Bayside Village Marina LLC” and mailed to: Brad B. Kuhn, Esq., NOSSAMAN LLP, 18101 Von Karman Avenue, Suite 1800, Irvine, CA 92612.
7. This Stipulation may be signed in counterparts, each of which shall be considered an original, but all of which shall constitute one Stipulation.
IT IS SO STIPULATED, AGREED AND REQUESTED.
Dated: September 14, 2023 WOODRUFF & SMART, APC
By: /s/ Elizabeth Valadez
GARY WEISBERG
MICHAEL L. D’ANGELO
ELIZABETH VALADEZ
Attorney for Plaintiff Orange County Sanitation District
Dated: September 14, 2023 NOSSAMAN LLP
BRADFORD B. KUHN
By: /s/ Bradford B. Kuhn
JOHN P. ERSKINE
BRADFORD B. KUHN
Attorney for Defendant Bayside Village Marina LLC
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1 [PROPOSED] ORDER RE DEFENDANT’S WITHDRAWAL OF PROBABLE COMPENSATION ON DEPOSIT 1789602.1
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FirmName1_1 ,
FirmLegalStatus1_1
WOODRUFF & SMART
ATTORNEYS AT LAW
COSTA MESA
Fee Exempt Per Gov. Code § 6103
WOODRUFF & SMART, APC
GARY C. WEISBERG - State Bar No. 132092
[email protected]
MICHAEL L. D'ANGELO - State Bar No. 186882
[email protected]
ELIZABETH VALADEZ - State Bar No. 216235
[email protected]
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626-7670
Telephone: (714) 558-7000
Facsimile: (714) 835-7787
Attorneys for Plaintiff ORANGE COUNTY SANITATION DISTRICT, a public entity
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CIVIL COMPLEX CENTER
ORANGE COUNTY SANITATION DISTRICT,
a public entity,
Plaintiff,
v.
BAYSIDE VILLAGE MARINA, LLC, a
California limited liability company; LAGUNA
BEACH COUNTY WATER DISTRICT, a
public entity; DOES 1 through 100, inclusive;
and ALL PERSONS UNKNOWN CLAIMING
AN INTEREST IN THE PROPERTY,
Defendants.
CASE NO.: 30-2022-01251890-CU-EI-CXC
[Related to: 30-2021-01194238-CU-EI-CXC
Bayside Village Marina, LLC v. Orange County
Sanitation District, et al.]
ASSIGNED FOR ALL PURPOSES TO
THE HONORABLE WILLIAM CLASTER
DEPARTMENT: CX-104
[PROPOSED] ORDER RE DEFENDANT’S
WITHDRAWAL OF PROBABLE
COMPENSATION ON DEPOSIT WITH THE
STATE TREASURER
[Assessor Parcel No. 440-132-60]
HEARING DATES PENDING:
Status Conference
Date: February 7, 2024
Time: 8:30 a.m.
Dept: CX104
Trial Readiness Conference
Date: May 10, 2024
Time: 1:30 p.m.
Dept: CX104
Trial
Date: May 20, 2024
Time: 9:00 a.m.
Dept: CX104
DATE ACTION FILED: March 25, 2022
TRIAL DATE: May 20, 2024
Electronically Filed by Superior Court of California, County of Orange, 09/15/2023 09:34:00 AM. 30-2022-01251890-CU-EI-CXC - ROA # 164 - DAVID H. YAMASAKI, Clerk of the Court By G. Hernandez, Deputy Clerk. 13-156
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WOODRUFF & SMART
ATTORNEYS AT LAW
COSTA MESA
The Court having considered the stipulation entered into by Plaintiff Orange County Sanitation District (“Plaintiff” or “OC San”) and Defendant Bayside Village Marina LLC, a California limited liability company (“Defendant” or “Bayside”) (individually, “Party,” and collectively, “Parties”),
IT IS HEREBY ORDERED AND ADJUDICATED AS FOLLOWS:
1. No other parties have an interest in the Property Interests or in the probable compensation on deposit with the California State Treasure r in the sum of Four Million Three Hundred Seventy-Nine Thousand Five Hundred Eighteen Dollar s and Zero Cents ($4,379,518.00) (“Condemnation Deposit”).
2. OC San shall receive a credit in the full amount of the Condemnation Deposit against any judgement entered against it at trial, by stipulated judgment or upon the execution of an out -of- court settlement agreement between the Parties.
3. If the amount awarded by judgement in favor of Bayside and against OC San is less than the full amount of the Condemnation Deposit, Bayside shall issue payment in the excess amount to OC San within 45 days of entry of judgment.
4. Bayside is entitled to the immediate release of the Condemnation Deposit.
5. The California State Treasurer is hereby authorized, directed and ordere d to issue payment as follows: A check in the amount of Four Million Three Hundred Seventy-Nine Thousand Five Hundred Eighteen Dollars and Zero Cents ($4,379,518.00) made payable to “Bayside Village Marina LLC” and mailed to Brad B. Kuhn, Esq., NOSSAMAN LLP, 18101 Von Karman Avenue, Suite 1800, Irvine, CA 92612.
IT IS SO ORDERED.
DATED: 09/15/2023 By:
THE HONORABLE WILLIAM CLASTER
Judge of the Superior Court
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EXHIBIT D
[OCSD Response to 1/31/24 Appeal]
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1 JOINT STATUS CONFERENCE STATEMENT
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ATTORNEYS AT LAW
COSTA MESA
Fee Exempt Per Gov. Code § 6103 WOODRUFF & SMART, APC
GARY C. WEISBERG - State Bar No. 132092
[email protected]
MICHAEL L. D'ANGELO - State Bar No. 186882
[email protected]
ELIZABETH VALADEZ - State Bar No. 216235
[email protected]
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626-7670
Telephone: (714) 558-7000
Facsimile: (714) 835-7787
Attorneys for Plaintiff ORANGE COUNTY SANITATION DISTRICT, a public entity
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, COMPLEX JUSTICE CENTER
ORANGE COUNTY SANITATION
DISTRICT, a public entity,
Plaintiff,
v.
BAYSIDE VILLAGE MARINA, LLC, a
California limited liability company;
LAGUNA BEACH COUNTY WATER
DISTRICT, a public entity; DOES 1 through
100, inclusive; and ALL PERSONS
UNKNOWN CLAIMING AN INTEREST
IN THE PROPERTY,
Defendants.
CASE NO.: 30-2022-01251890-CU-EI-CXC
(Related to 30-2021-01194238-CU-EI-CXC
Bayside Village Marina, LLC v. Orange
County Sanitation District, et al.)
ASSIGNED FOR ALL PURPOSES TO
THE HONORABLE WILLIAM CLASTER
DEPARTMENT: CX-101
JOINT STATUS CONFERENCE
STATEMENT
[Assessor Parcel No. 440-132-60]
HEARING DATES PENDING:
Type: Status Conference
Date: February 7, 2024
Time: 8:30 a.m.
Type: Trial Readiness Conference
Date: August 2, 2024
Time: 1:30 p.m.
Type: Trial
Date: August 12, 2024
Time: 9:00 a.m.
DATE ACTION FILED: March 25, 2022
Electronically Filed by Superior Court of California, County of Orange, 01/31/2024 11:14:00 AM. 30-2022-01251890-CU-EI-CXC - ROA # 175 - DAVID H. YAMASAKI, Clerk of the Court By E. efilinguser, Deputy Clerk. 13-159
2 JOINT STATUS CONFERENCE STATEMENT
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Plaintiff ORANGE COUNTY SANITATION DISTRICT, a public entity ("OC San") and BAYSIDE VILLAGE MARINA, LLC, a California limited liability company (“BVM” or “Bayside”) submit the following Joint Status Conference Statement.
1. INTRODUCTION
In this eminent domain action, OC San is acquiring permanent and temporary property interests in real property located at 100 N. Bayside Drive and 100 E. Coast Highway in the City of Newport Beach, California (the "Property"). The property interests being acquired consist of a partial fee interest (Parcel 5-67-01), a permanent non-exclusive access easement (Parcel 5-67-02), a temporary road easement (Parcel 5-67-03), temporary construction easements (Parcels 5-67-04, -05, and -06), and permanent utility easements (Parcels 5-67-07 and -08) (collectively, the “Property Interests”). The Property Interests are being acquired for the construction of the Bay Bridge Pump Station and Force Mains Replacement Project (the "Project").
BVM is the fee owner of the Property. Laguna Beach County Water District ("LBCWD") was also named as a defendant in this action as an easement holder in the Property but has disclaimed all interest to compensation in the action.
OC San contends the Project is needed to rehabilitate or replace aging infrastructure facilities that are vital for the delivery and processing of sewer wastewater in Newport Beach and surrounding areas. OC San further contends that the Project will bring the facility and its component parts to current design and reliability standards to ensure continuous service to the community and prevent sewage spills, to improve odor control, and to improve public safety.
According to OC San, the Project includes demolition of the existing pump station building and construction of a new pump station, including a modernized pump station, generator, and odor control station and two new force mains under the Newport Harbor Channel. BVM is no longer contesting OC San’s right to acquire the Property Interests or to build the Project in this eminent domain action, reserving only the issue of just compensation under the applicable Eminent Domain Law.
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2. PROCEDURAL STATUS OF CASE
OC San filed its Complaint in Eminent Domain on March 25, 2022, and BVM filed its Answer to the complaint on May 9, 2022. On August 29, 2022, a disclaimer of interest by LBCWD was filed with the Court. There are no other claims being brought by OC San, and there are no crossclaims. Presently, no additional parties are anticipated to be added to the action.
OC San’s deposit of its estimate of probable compensation pursuant to California Code of Civil Procedure section 1255.010(a) was made with the California State Treasurer on April 4, 2022. OC San subsequently filed a motion for pre-judgment possession of the Property Interests, which motion was granted on January 3, 2023, subject to the terms of the Court’s order.
In the course of these proceedings, BVM agreed to allow OC San temporary access to the property at-issue to conduct preliminary testing and analysis necessary to process permit applications with the City of Newport Beach, the California Coastal Commission, and other regulatory agencies. That work was completed on June 5, 2023 (though there is some continuing periodic work associated with measuring ground water levels). OC San’s efforts to secure the various permits from the regulatory agencies to build the Project is ongoing, and is incomplete as of this date.
This case was deemed related to Bayside Village Marina, LLC v. Orange County Sanitation District, etc., et al. , Orange County Superior Court Case No. 30-2021-01194238- CU-EI-CXC (“Related Case”). However, as described below, the writ of mandate in the Related Case was discharged and that case dismissed by stipulated order dated August 8, 2023.
3. CONTENTIONS OF THE PARTIES
BVM having now waived all its challenges and objections to OC San's right to acquire the Property Interests, the only remaining issues in this proceeding pertain to the amount of just compensation owing for such acquisition. BVM seeks reimbursement for its independent appraisal, compensation for the property sought to be taken, compensation for the temporary and permanent injury to the remainder of the property, compensation for damage to its fixtures, 13-161
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equipment and improvements pertaining to the realty, compensation for mitigation costs, compensation for pre-condemnation damages, and all other amounts as are just and proper.
BVM originally asserted a “loss of business” claim but subsequently waived that claim in verified responses to written discovery.
As to BVM’s claim for purported pre-condemnation damages, OC San contends that entitlement to those damages must be determined by the Court in advance of the jury trial.
4. STATUS OF DISCOVERY
The parties have exchanged written discovery and tens of thousands of pages of documents in response to requests for production of documents. OC San also obtained documents from the City of Newport Beach and the California Coastal Commission through requests under the California Public Records Act. Additionally, the depositions of four different witnesses as designated “persons most qualified” at OC San have been completed.
OC San has issued business records subpoenas to various third-party witnesses identified in documents produced by Bayside, and recently served notice of the deposition of the person(s) most qualified of Bayside.
Bayside has taken persons most qualified depositions of OC San and intends to take additional depositions of OC San project management, and serve additional written discovery, primarily to address issues the deponents could not address.
5. ALTERNATIVE DISPUTE RESOLUTION
The parties participated in two private mediations in hopes of resolving the compensation and related issues. The mediations were not successful. However, the parties are amenable to participate in further mediation efforts after they have an opportunity to complete discovery and engage in informal discussions regarding their respective contentions.
6. DESCRIPTION OF CORE LEGAL AND FACTUAL ISSUES IN THE CASE The typical condemnation trial has two phases: the prima facie phase and the valuation phase. In the prima facie phase of the trial, the condemning agency establishes the public use and necessity for the project and acquisition. In the valuation phase, a jury determines the value of the property interests being acquired and the resulting damages (if any). The parties 13-162
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agree that the public use and necessity for project and acquisition are no longer at issue in this case, leaving t he amoun t of compensat ion d ue a s th e sol e remaining issue . O C San also contends that entitlement to pre-condemnation damag es must be determin ed by the Court in advance of the jury trial.
7. CONCLUSI ON
The parties request that the Court continue the status conference considering the recent continuance of the trial date from May 20, 2024, to August 12, 2024.
DATED: January 31, 2024 WOODRUFF & SMART, APC
By:
GARY C. WEISBERG
MICHAEL L. D'ANGELO
ELIZABETH VALADEZ
Attorneys for Plaintiff ORANGE COUNTY
SANITATION DISTRICT, a public entity
DATED: January 31, 2024 NOSSAMAN LLP
By:
BRADFORD B. KUHN
JOHN P. ERSKINE
Attorneys for Defendant BAYSIDE VILLAGE
MARINA, LLC, a California limited liability company
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