HomeMy WebLinkAbout41 - PH-3 - Attachment 4 - 6/15/2021 Rutan & Tucker, LLP
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MEMORANDUM
TO: City of Costa Mesa
FROM: Rutan & Tucker, LLP
DATE: June 3, 2021
RE: One Metro West Project - Responses to Additional Comments
The purpose of this memorandum is to respond to concerns raised by commenters in
advance of the City Council meeting on the One Metro West Project, located at 1683 Sunflower
Avenue. Many individuals submitted comments, both in favor and in opposition to the Project.
Many of the concerns that were raised were mentioned by more than one commenter and/or were
similar to concerns previously addressed by the City in response to prior comments.
Accordingly, rather than respond to individual comments, an effort has been made to summarize
and respond to comments that may not have previously been addressed.
It should be noted that while CEQA requires an agency to respond to all written
comments received in connection with a draft EIR—something the City has done in the Final
EIR (see FEIR, Volume II, Section 2)—there is no similar requirement compelling responses to
comments received during the public hearing process. Nonetheless, the City and applicant have
attempted to respond to all concerns raised about the Project to the greatest extent possible, and
responses were previously provided for comments received during the Planning Commission
hearings on the Project. These responses are consistent with responses previously provided by
the City, and are intended to supplement such responses. Where applicable, the below
comments/responses have been organized by CEQA topic.
Aesthetics:
Comment: Plans for lighting on the façade facing the freeway could include a flashing
sign, and will cause disruption and light pollution.
Response: To enhance the façade of the parking structure located along the I-405
Freeway, the project proposes a creative method of screening the parking structure that would
provide visual interest such as a public art display. Although the specific design of the artwork
has not yet been finalized, it will be reviewed by the City for compliance with the One Metro
West Specific Plan, and thus, would exclude the use of moving, flashing, or otherwise visually
distracting elements or materials that are highly reflective or generate noise. (See PPP AES-1.)
Further, the treatment must include light shields or baffles to eliminate glare to travelers along
the 1-405 Freeway, and must comply with Caltrans limitations re maximum brightness. (See
Attachment 4
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Mitigation Measure AE-1.) Moreover, at the May 11, 2020 Planning Commission meeting, a
condition of approval was added to require the proposed freeway façade design be reviewed and
approved by the Planning Commission prior to installation. (See Modified Condition of
Approval No. 9.) Thus, appropriate measures are in place to ensure that surrounding uses will
not be adversely impacted by the proposed screening artwork.
Comment: The EIR contains insufficient analysis of potential view impacts to the
neighborhood south of the 405. Additional rendering, including both daytime and nighttime
renderings should be provided.
Response: Initially, it should be noted that “[u]nder CEQA, the question is whether a
project will affect the environment of persons in general, not whether a project will affect
particular persons.” (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th
477, 492; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007)
157 Cal.App.4th 885, 902–903 [same]; Association for Protection etc. Values v. City of Ukiah
(1991) 2 Cal.App.4th 720, 734 [“We must differentiate between adverse impacts upon particular
persons and adverse impacts upon the environment of persons in general.”].) Accordingly, the
EIR’s analysis appropriately focused on the Project’s impact on “public views of the site [and]
its surroundings.” and concluded such impacts would be less than significant. (See DEIR, pp.
5.1-10, 5.1-17 to 5.1-20, 5.1-28.)
Nonetheless, in response to concerns about view impacts raised at the April 13, 2020
Planning Commission meeting, an additional visual analysis study was conducted to evaluate the
extent to which the Project would impact views from the State Streets area of Mesa Verde. (See
Visual Analysis Booklet, May 2020.) The study, which was included in the staff report packet
for the May 11, 2020 Planning Commission meeting, indicated that portions of the Project would
be visible from 82 of 667 homes within the area, and included view simulations from areas in
which the Project would be visible. (Visual Analysis Booklet, pp. 5-6, 12, 13-14.) The Visual
Analysis Booklet showed views from 12 different vantage points. (Id. at 5-6.) While portions of
the Project would be visible from some areas of Mesa Verde, approximately 450,000 cars, 300
feet and the I-405 Freeway divide the project from the closest homes. (Id. at 13.) The study
shows the Project would not impact any scenic vistas; indeed, it was unable to identify any
existing mountain views from the area that would be impacted by the Project. (Id. at 12.)
Further, the study demonstrated that views of the Project from Mesa Verde would be similar to
views from other residential areas of the City, where taller buildings can be seen from across the
freeway. (Id. at 14-15.) Based on the analysis contained in the EIR, as well as the supplemental
information provided in the visual analysis study, the Project would not have a significant impact
on views, including on views from the Mesa Verde neighborhood, for purposes of CEQA.
CEQA does not require any particular method for analyzing aesthetic impacts and it is
unnecessary (and impossible) to depict every possible viewpoint under all possible viewing
conditions in order to conclude a project will not have a significant impact on views, for
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purposes of CEQA. To the extent commenters suggest otherwise, the City’s experts disagree
with such comments, as set forth in the EIR.
Air Quality:
Comment: Commenters expressed concern regarding the relatively lengthy anticipated
buildout of the Project, and suggested the surrounding community will be exposed to significant
and unavoidable air quality and traffic impacts during that time period.
Response: While the Draft EIR assumed construction would occur in one phase,
construction is now planned to occur in three phases. A technical memo was prepared to
evaluate how the revised construction schedule would change impacts to air quality, greenhouse
gases, noise, and transportation. It concluded the proposed change in phasing would not result in
any significant environmental effects not previously disclosed in the Draft EIR. Nor would the
change in phasing substantially alter the conclusions or findings of the Draft EIR related to the
project’s potential environmental effects or proposed mitigation measures. The technical
memorandum is included in the Final EIR and updates have been made to the Final EIR to
reflect the new phasing and analysis contained in the technical memorandum.
With regard to air quality impacts, in particular, while VOC emissions associated with
Project construction were previously determined to be a significant and unavoidable impact, that
is no longer the case after the changes to Project phasing. All construction-related emissions of
all criteria pollutants will be less than significant after mitigation. (See Phased Project
Construction Analysis, p. 8, Table F.)
With regard to traffic, the technical memo concluded that the revised phasing would not
change the worst-case scenario previously evaluated in the Draft EIR. (Phased Project
Construction Analysis, p.23.) As summarized in the Draft EIR, short-term construction-related
vehicle trips associated with the previously analyzed project (up to 61 average daily trips) were
determined to be less than one percent of the project’s operational trips (6,800 average daily
trips) and a small fraction of the vehicle trips in the overall study area. Additionally, any lane
and sidewalk closures would be temporary and complete roadway closures are not anticipated.
Thus, construction traffic impacts on existing transit, bicycle, and pedestrian facilities were
determined to be less than significant, and would remain so with the revised construction
schedule. (See FEIR, p. 2-6.)
Thus, to the extent commenters contend that construction activities will result in
significant air quality and/or transportation impacts, the City’s experts disagree with such
comments, as set forth in the technical memo.
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Greenhouse Gas Emissions
Comment: Greenhouse gas emissions are identified as a significant unavoidable impact,
yet the EIR does not indicate the Project will meet LEED standards or explain why it is
infeasible to do so.
Response: Although the Project does not propose to go through the LEED certification
process, which would add additional time and expense to the development process, the Project
will be required to comply with the California Green Building Standards Code, which imposes
similar requirements. As set forth in the EIR, the Project includes numerous features designed to
conserve energy and reduce greenhouse gas emissions, including, but not limited to:
Limiting landscape irrigation when possible and incorporating drought-tolerant plant
species and non-potable water sources;
Installing green roofs, using alternative paving materials, and providing tree canopy
shading;
Installing solar ready rooftops;
Utilizing recycled and reclaimed materials for surface parking areas, sidewalks, unit
paving, and curbs;
Incorporating permeable paving, low-glare and low-heat intensive surfaces; and
Promoting stormwater retention through capture and harvest for re-use in landscaped
areas.
(FEIR, pp. 3-861 to 3-862.)
Further, as discussed in detail in the EIR, the Project is consistent with both SCAG’s
2016-2040 Regional Transportation Plan/Sustainable Communities Strategies (2016 RTP/SCS)
and CARB’s 2017 Scoping Plan, and thus will not conflict with regional or statewide plans to
reduce GHG emissions. (See DEIR, pp. 5.6-12 to 5.6-15.) The DEIR nonetheless concluded
that the Project would have a significant and unavoidable impact related to GHG emissions,
because annual emissions related to the Project will exceed a numeric threshold of 3,000
MTCO2e, even after required mitigation. (DEIR, p. 5.6-16.) The City has previously explained,
in considerable detail, that no feasible mitigation measures are available to reduce the Project’s
GHG impacts to a less than significant level. (FEIR, p. 2-641.) Accordingly, to the extent that
commenters have suggested that the City has failed to impose all feasible mitigation measures to
mitigate GHG emissions, the City’s experts disagree with the asserted comment, as previously
detailed in the EIR.
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Land Use and Planning:
Comment: Several commenters suggested the Project is incompatible with the
surrounding area and will lower property values.
Response: Comments regarding the most desirable use of the Project site express
opinions regarding policy, and do not relate to a CEQA impact. Likewise, comments expressing
an opinion regarding how the Project might impact property values in the surrounding area do
not raise a CEQA concern. (CEQA Guidelines § 15131(a) [“Economic or social effects of a
project shall not be treated as significant effects on the environment.”]; Preserve Poway v. City
of Poway (2016) 245 Cal.App.4th 560, 566 [same].)
In any event, claims that the Project would lower property values are unsupported. The
Project will provide numerous benefits to the City, including by providing housing near existing
jobs in an area of the City north of the I-405 that currently has a lack of housing. Other project
benefits include 106 deed-restricted affordable units at the very low and low-income levels,
public access to a 1.5-acre urban open space, and improvements to Sunflower Avenue. The
Development Agreement for the Project also requires contributions of funding (beyond the
required development impact fees) for public services such as police and fire, and funding
toward economic recovery. In fact, when compared to industrial zones, values of homes typically
increase when adjacent to vibrant, mixed-use neighborhoods with valuable community
amenities.
Noise:
Comment: Freeway noise will bounce off of the Project’s parking structure and obviate
effectiveness of freeway sound walls.
Response: The EIR included a detailed analysis of potential noise impacts, supported by a
technical Noise and Vibration Impact Analysis (“Noise Study”). The Noise Study analyzed
potential traffic noise impacts to off-site receivers, including higher traffic noise levels due to
reflection of noise off the new building façade. (See DEIR, Appendix K, pp. 20-30.) As
explained therein:
Appendix D shows that the increase in traffic noise levels due to
increased reflection of traffic noise from I-405 would be no greater
than 0.6 dBA at the residences to the south. A noise level increase
of 3 dBA is considered barely perceptible in an outdoor
environment, and an increase of 1 dBA cannot be perceived except
in carefully controlled interior setting during laboratory
experiments. Therefore, traffic noise impacts from the project-
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related increase in noise reflection would be less than significant,
and no mitigation measures are required.
(See DEIR, Appendix K, p. 30.)
Public Services and Recreation:
Comment: Several commenters expressed concerns regarding the potential impact of the
Project on police and other public services.
Response: Consistent with CEQA and the CEQA Guidelines, the DEIR contains a
detailed analysis of potential impacts to public services. (See DEIR, Chapter 5.12.) As
explained therein, the Project would be required to comply with numerous existing regulatory
requirements, including plans, policies, and programs (PPP), and standard conditions of approval
(SCA), which effectively reduce potential impacts to public services. (See DEIR, pp. 5.12-11 to
5.12-12.) Such conditions include payment of development impact fees related to the provision
of public services. (Id.) With regard to police, in particular, the EIR explains that the Costa
Mesa Police Department (“CMPD”) has determined 3 additional officers and associated vehicles
would be necessary in order to offset the incremental increase in service demands resulting from
the Project, but no police new police station or expansion to existing stations or any other similar
physical improvement would be required. Further, the Project would not adversely impact
CMPD’s ability to maintain its current response times and police staffing levels. (DEIR, pp.
5.12-15 to 5.12-16.) The Project will also be required to pay applicable development impact fees
and will be required to provide additional funding to the City pursuant to the proposed
development agreement with the City. Accordingly, impacts to public services, including police,
would be less than significant. (DEIR, pp. 5.12-15 to 5.12-24.)
The impact of police and other public services will be fully funded by the Project as
determined by the conservative Fiscal Impact Analysis prepared by The Natelson Dale Group
(see Staff Report, pp. 5 to 16.) In fact, the positive impact to the City’s budget could be as much
as a $584,514 surplus per year.
Traffic:
Comment: There is no mechanism requiring the developer to actually implement traffic
mitigation measures.
Response: The EIR identified infrastructure improvements that would mitigate impacts
the Project would contribute to, and the Project applicant would be required to comply with two
enforceable traffic mitigation measures requiring contributions toward such improvements.
Specifically, Mitigation Measure T-1 requires the Project applicant to contribute its fair share
contribution toward the cost of adding a southbound right-turn lane at the intersection of Susan
Street/South Coast Drive. Mitigation Measure T-2 similarly requires the applicant to contribute
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its fair share contribution for improvements to the intersection of Talbert Avenue/Mt.
Washington Street (in the City of Fountain Valley). Both contributions must be made prior to
the issuance of the first building permit, and thus, are fully enforceable. As explained by the
California Supreme Court, and recognized in the CEQA Guidelines, “a project developer cannot
be made to “pay to mitigate effects caused by other users.” (City of Marina v. Board of Trustees
of California State University (2006) 39 Cal.4th 341, 361-362; see also CEQA Guidelines §
15126.4(a)(4)(B) [mitigation measures must be “roughly proportional” to the impacts of the
project].) Thus, the Project applicant cannot be required to fully mitigate impacts that are largely
caused by other projects. For this reason, the timing of the actual improvements cannot be
guaranteed, and the EIR accordingly properly identified impacts to the two intersections
referenced above as significant and unavoidable. (See DEIR, p. 5.13-33.) Nonetheless, some of
the infrastructure improvements identified in the EIR—including the signalization of the Talbert
Avenue/Mt. Washington Street intersection, which was recommended to address “Existing Plus
Project Conditions—have already been implemented. Thus, the Project includes appropriate and
enforceable mitigation measures designed to address the Project’s traffic impacts.
Other Issues
Affordable Housing
Comment: The Project provides insufficient affordable housing.
Response: Comments regarding the amount of affordable housing included in the Project
do not raise any CEQA issues, but rather a policy issue. Unlike some cities (but like most cities
in Orange County), the City does not have an Inclusionary/Affordable Housing Ordinance that
requires housing projects to incorporate affordable units. Nor is there any state law requiring the
Project include such units. Nonetheless, the proposed development agreement negotiated
between the City and the applicant would require 106 deed-restricted affordable units, including
67 very-low income units and 39 low-income units. Affordable units shall be maintained for a
period of not less than forty (40) years from the date of the last certificate of occupancy of the
Project. The 106 units is based upon what is economically feasible, and while the unit count is
comparable to what would be required in the few Orange County cities with inclusionary
housing policies, the level of affordability is greater than required under such policies.
Comments re Public Process/Procedural Issues:
Comment: The Responses to Comments on the Draft EIR are inadequate and largely non-
responsive.
Response: As set forth in Section 15088 of the CEQA, a lead agency is required to
evaluate comments received on a draft EIR and respond to comments “raising significant
environmental issues.” Comments that do not raise a significant environmental issue do not
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require a response. The City received more than 90 comments regarding the Draft EIR from
other agencies, tribes, organizations, and other interested persons during the public comment
period, which included an extension, and prepared formal, substantive responses to such
comments. (See FEIR, Volume 2, Section 3.) The City thus fully complied with the procedural
requirements of CEQA.
Comment: Changes to Project phasing should be addressed in a recirculated EIR.
Because Project residents will be on site during later construction phases, the recirculated EIR
should include analysis of potential air quality impacts to residents of the Project based on
Localized Significance Thresholds (“LSTs”).
Response: CEQA requires recirculation only in specified circumstances, e.g., where
significant new information shows a new significant impact would result from the project, or
where a “draft EIR was so fundamentally and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded.” (Guidelines, § 15088.5(a).)
Recirculation is expressly not required where the new information added to the EIR “merely
clarifies or amplifies” the information contained in the draft EIR. (Guidelines, § 15088.5(b);
Laurel Heights Improvement Assn. v. U.C. Regents (1993) 6 Cal.4th 1112, 1138.)
Potential impacts related to the changes to Project’s proposed construction schedule (i.e.,
the Project proponent’s plan to construct the Project in three phases, rather than a single phase)
were evaluated in a technical memorandum, which concluded the proposed change in phasing
would not result in any significant environmental effects not previously considered in the Draft
EIR or substantially alter the conclusions or findings of the Draft EIR related to the Project’s
potential environmental effects or proposed mitigation measures.
The Construction Phasing Memo specifically looked at potential impacts to Project
residents from short-term emissions related to construction, and explained:
Based on the project construction schedule, the LST AERMOD
construction modeling, and the unmitigated on-site construction
exhaust emissions from the CalEEMod analysis [cite], construction
of the proposed project would not result in any substantial, long-
term (i.e., 30-year) health risk levels to the residents of Phases 1
and later Phase 2 while construction of Phases 2 and 3 occur, or
existing residents offsite near the project site.... In addition, there
would be no residual emissions or corresponding individual cancer
risk after construction. As a result, as identified in the January
2020 Air Quality report, construction TAC emissions would have a
less than significant impact.
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(Construction Phasing Memo, pp. 10-11.) Thus, the new phasing schedule does not constitute
“significant new information” pursuant to CEQA Guidelines Section 15088.5, and does not
trigger a need to recirculate the Draft EIR. The technical memorandum is included in the Final
EIR and updates have been made to the Final EIR to reflect the new phasing and analysis
contained in the technical memorandum. (See FEIR, Appendix P, Construction Phasing Memo.)
Accordingly, recirculation of the EIR is not required as a result of the change to the proposed
construction schedule.
Comment: The City should not proceed with a significant project during the pandemic,
when people are otherwise pre-occupied and public participation is limited.
Response: The City has provided numerous opportunities for public participation as part
of an extremely thorough and lengthy planning and environmental process. The DEIR was made
available for public review and comment for 52 days (longer than required by CEQA) from
February 7, 2020 to March 30, 2020, including extra time due to the COVID-19 pandemic.
(FEIR, Vol. 2, p. 1-1.) The FEIR, which includes written responses to all comments received on
the EIR, was made available to the public in May 2020. An updated version of the FEIR was
made available in April 2021. The City conducted 2 public hearings at Planning Commission
meetings, on April 13 and May 11, 2020. Although members of the public were not able to
attend such hearings in-person due to the COVID-19 pandemic, they were able to participate via
Zoom and/or by submitting written comments to be read into the record. Instructions for
participating were provided via the Planning Commission agenda posted online 72 hours prior to
the Planning Commission meeting. The City also established a phone line where public
comments could be left via voice message, in addition to accepting comments via email and
regular mail. (See May 11, 2020 Staff Report, p. 6.) Moreover, the Planning Commission heard
comments from more than 70 persons over the course of the 2 meetings, indicating that the
restriction on public attendance was not a significant impediment to public participation.
Further, notwithstanding the Planning Commission’s recommendation to approve the
Project, the Project did not immediately proceed to City Council; more than a year will have
passed since the Planning Commission’s recommendation, before the matter is heard by the
Council. Thus, interested members of the public have had an extraordinary amount of time to
review Project related materials and comment on the Project. Scores of individuals have done
so, both in favor of and in opposition to the Project. While City Council meetings are currently
still being conducted over Zoom, members of the public may participate over Zoom, telephone,
and/or email, and are invited to contact the City Clerk if they require additional accommodation.
Further, there is no legal or sound policy basis for the position that the City should not
continue to process projects during the pandemic. The City cannot simply indefinitely put all
City business on hold during the pandemic, which has prevented in-person meetings for more
than a year.