2021-01-27 item #10a - attachment 07 page 1 of 19

1140 South Coast Hwy 101 Encinitas, CA 92024

tel 760-942-8505 fax 760-942-8515 www.coastlawgroup.com

January 20, 2021

VIA Electronic Mail Only [email protected]

Anna Colamussi Principal Planner City of Encinitas 505 South Vulcan Ave. Encinitas, California 92024

RE: City Council Hearing, January 27, 2021_______ __ Nolen Communities LLC’s Response to ECT Appeal

Honorable Mayor and Councilmembers:

On behalf of Nolen Communities, LLC (Nolen), please accept the following comments in opposition to the Encinitas Community Trust’s appeal of the December 17, 2020 Planning Commission approval of the Fox Point Farms development project.

As was evident at the Planning Commission hearing, Nolen has spent the last nine months working diligently with the Fox Point community to address residents’ concerns with respect to certain aspects of the Fox Point Farms project. The result of this extensive community outreach and engagement is a project design supported unanimously by the Planning Commission and all but two disgruntled residents behind the current appeal.

We appreciate the Planning Commissioners’ thorough consideration of the project and its potential impacts and mitigation measures, as well as their general confirmation of CEQA compliance. As Nolen has pointed out, its commitment to undertaking a transparent and supportable CEQA process goes back to their first transmittal to the City during the Housing Element Update (HEU) process in 2017. While state law has evolved to allow projects like Fox Point Farms to claim “by-right” exemptions from CEQA, Nolen has made good on its commitment to conduct a full environmental impact report (EIR) containing complete and legally supportable Alternatives and Cumulative Impacts analyses, and mitigation measures to reduce impacts to less than significant wherever possible.

As part of the CEQA process, the Encinitas Community Trust (ECT) submitted comments on the adequacy of the Draft EIR (DEIR). These comments were reiterated, though not meaningfully developed further, in multiple submissions from the ECT prior to the Planning Commission Hearing.

Per the Encinitas Municipal Code, the ECT is required to provide a detailed summary to support its appeal, including “each issue which the appellant alleges was wrongly determined together with every argument and a copy of each item of evidence submitted to the subordinate entity that supports the allegation.” This requirement is intended to provide Nolen, the City, and interested citizens with a clear indication of the issues of contention and an evidentiary roadmap

2021-01-27 Item #10A - Attachment 07 of 19

Nolen Communities Response to ECT Appeal January 20, 2021 _________________________________________

by which the parties and the public can assess viability of the appeal. The ECT has not complied with the Municipal Code appeal requirements. Instead, the ECT’s December 26, 2020 appeal letter simply incorporates by reference its entire prior written comments on the DEIR and its further procedural and substantive comments in anticipation of the Planning Commission hearing. The appeal does not identify each issue the appellant believes was wrongly determined and does not provide “every argument and a copy of each item of evidence submitted” to the Planning Commission. Rather, the ECT would have the City and Nolen guess which of the voluminous issues raised remain unresolved and of concern to the ECT. This defect in the presentation of the appeal issues and evidence undermines the appellate process, and Nolen respectfully requests it be stated as a cause for rejection of the appeal when a decision upholding project approval is rendered. Further, where the ECT’s appeal letter states it “is not required to come forth during the administrative process with its own substantial evidence to prove the Project’s environmental impacts are more-than-significant,” it grossly misstates CEQA law as applied in the current context. When a court reviews whether an EIR sufficiently addresses issues, the court asks whether the document “includes sufficient detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues the proposed project raises.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516, citing Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405). Where, as here, the record contains substantial evidence to support the analysis and each of the conclusions contained in the DEIR, the challenger must show that the agency abused its discretion by either failing to proceed in a manner required by law (procedural defects) or by reaching factual conclusions unsupported by substantial evidence (factual defects). (Cal. Public Resources Code sec. 21168.5). When reviewing an agency’s factual conclusions, CEQA black letter law dictates that the court “may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task is ‘not to weigh conflicting evidence and determine who has the better argument.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435). Put simply, absent substantial evidence proffered by the ECT to allow the City Council to find the DEIR factual underpinnings wholly without merit, the decision of the Planning Commission must stand.

ECT Issues Raised in Prior Comment Letters Comments related to the City’s adoption of the R-30 zoning, impacts to agricultural resources, traffic-related noise impacts, visual impacts to scenic corridors, impacts related to greenhouse gas emissions, adequacy of the San Dieguito Water District’s water supply assurances, significant and unavoidable traffic impacts, and suggested additional mitigation measures were identified by the ECT in its public comments to the DEIR. The Final EIR (FEIR) addresses in detail every comment raised by the ECT, including at times direct citation to evidence in the DEIR and appendices, and at times citation to supplemental substantial evidence offered into the record to support the DEIR findings. The ECT has never responded to the comprehensive FEIR rebuttal of each of its issues. Indeed, the only new comments made were non-substantive procedural issues related to compliance with the Americans with Disability Act and purported (and unsupportable) requirements to recirculate the DEIR due to new or additional evidence/issues in the FEIR.

2021-01-27 Item #10A - Attachment 07 Page 2 of 19


In response to the pre-Planning Commission hearing ECT comments, Nolen provided further rebuttal and citation to substantial evidence in the administrative record. Nolen’s counsel has provided the City a legal response to ECT’s apparent misunderstanding regarding the triggers for DEIR recirculation obligations. So, while we believe the administrative record clearly and accurately demonstrates why the ECT’s comments do not require either additional mitigation measures or recirculation of the DEIR, please accept the following along with our apologies for beating the proverbial dead horse as to these issues: Agricultural Resources

• Summary of ECT Position on Appeal: Due to the presence of mapped “Unique Farmland,”

any conversion of land bearing this designation necessarily results in a finding of

significant impact. Additional evidence placed in the record (the Land Evaluation & Site

Assessment – LESA- Analysis) triggers recirculation of DEIR.

o Nolen’s Response: The DEIR comprehensively addresses how and why the land

mapped as Unique Farmland does not, and for many years has not, met the

State’s definition of Unique Farmland, and therefore the conversion of on-site

greenhouses to housing, commercial uses, and an actual in-ground farm is not a

significant impact to agricultural resources. After release of the DEIR, additional

substantial evidence was placed in the record to support the finding of no

significant impact. See, e.g., LESA Analysis performed in accordance with

California Department of Conservation guidance confirming impacts are less than

significant, Appendix T. See also, Response to Comments 4-32 through 4-39.

Because the new information put in the record did not disclose different or worse

impacts or result in different mitigation measures, recirculation of the DEIR is not

required.

Greenhouse Gas Emissions

• Summary of ECT Position on Appeal: The DEIR fails to consider both project-specific and

citywide cumulative greenhouse gas impacts (and the DEIR failed to consider emissions

from the proposed HEU sites). The City’s adoption of a new Climate Action Plan triggers

recirculation.

o Nolen’s Response: The ECT is factually wrong. A project specific GHG analysis

was conducted and the DEIR determined that the project complied with the City’s

2018 Climate Action Plan (CAP) requirements. An updated 2020 CAP was adopted

after release of the DEIR, confirming buildout of the project and the other HEU

sites would not require additional mitigation measures to meet the City’s long term

GHG reduction goals. Further, the DEIR considered potential GHG emissions

impacts from all 2019 HEU sites even though it was not legally required to do so.

Under well-established CEQA law, a DEIR is required to consider only those

projects that are “reasonably foreseeable,” and not speculative. The DEIR contains

a list of projects and a methodology used to determine the scope of cumulative

projects. All 2019 HEU properties are included in the analysis despite uncertainty



regarding whether many will be pursued, and potential impacts were found to be

less than significant. The City’s adoption of a new CAP did not disclose different or

worse impacts or result in different mitigation measures than in the DEIR, so

recirculation is not required. See Response to comments 4-13 through 4-16, 4-24

through 4-31, EIR Appendix F.

Visual Impacts

• Summary of ECT Position on Appeal: The project will significantly change the visual,

scenic, and general character of the Fox Point community.

o Nolen’s Response: CEQA law does not require analysis of subjective psychological

feelings or social impacts that do not result in environmental impacts. The existing

Fox Point Farms parcel is currently developed with aesthetically displeasing

commercial greenhouses and fencing that do not allow for any view into or through

the property. The project does not adversely impact existing views to the site from

off-site public vantage points, does not impact historical resources, will preserve

mature trees to the extent feasible, and is designed with a mass and scale that

both meets the R30 zoning design criteria and fits into the surrounding

neighborhood. See Response to Comments 4-2, 4-3, and 4-50 through 4-54.

Noise Impacts

• Summary of ECT Position on Appeal: The conversion of agricultural uses on the property

to residential and commercial will result in increased traffic noise impacts, and cumulative

traffic noise impacts from other projects was not considered.

o Nolen’s Response. The ECT is factually wrong. A project-specific noise analysis

was conducted, and the DEIR found the project would not contribute to a

cumulatively considerable increase in roadway traffic noise. Further, in addition to

considering cumulative traffic generated by the project together with other projects,

the DEIR analysis was extremely conservative, utilizing a lower noise threshold of

significance than required. The noise study and DEIR further found that removal of

the commercial uses would not reduce noise impacts and would be inconsistent

with project objectives. The ECT has provided no substantial evidence by which

the City could find the FEIR conclusions in error. See FEIR section 3.10, Response

to Comments 4-13 and 4-47 through 4-49.

Water Supply

• Summary of ECT Position on Appeal: The DEIR fails to consider cumulative impacts to

water supply from development of all 2019 HEU sites.

o Nolen’s Response: The City’s 2018 Environmental Assessment for the HEU sites

addressed Fox Point Farms and other HEU projects within the San Dieguito Water

District’s jurisdiction and found that an adequate water supply was expected during

normal, single-dry, and multiple-dry year scenarios. The ECT mistakenly seeks to



include projects not in the SDWD’s jurisdiction. The DEIR cumulative analysis

found no significant impact to water supply, and the SDWD provided confirmation

that facilities and adequate supply are available to serve the project. See FEIR

section 3.14, Appendix R, and Response to Comments 4-13 and 4-18 through 4-

23.

Transportation

• Summary of ECT Position on Appeal: The project should implement additional mitigation

measures to reduce admittedly significant and unmitigable transportation impacts

associated with Vehicle Miles Traveled (VMT). Specifically, the project should have

considered an alternative that eliminated the restaurant/commercial components of the

project, and a mitigation measure that would provide a shuttle for use by project residents.

o Nolen’s Response: The DEIR found VMT impacts to be significant and unmitigable,

and a Statement of Overriding Considerations supported by substantial evidence

was unanimously adopted by the Planning Commission. The project includes

feasible VMT reduction strategies including, but not limited to, transit pass

subsidies, e-bike sharing, car sharing, a “school pool” program, a TDM marketing

program, an onsite business center, the provision of affordable housing, and

locating mixed land uses on-site. The DEIR included a VMT Reduction Alternative

which analyzed additional measures to reduce VMT impacts and determined such

an alternative would not be feasible. In response to demands for a shuttle and

other measures, Appendix O-3 analyzed a range of potential Traffic Demand

Management VMT reduction options and found none would be expected to

produce quantifiable reductions to VMT. The project is along North County Transit

District Bus Route 304, which serves places of interest in the community and is

scheduled to pick up and drop off immediately in front of the project at 45-minute

intervals. See EIR Appendices 0-2 and O-3, Response to Comments 2-3, 2-4, 3-3,

4-11, 4-13, 4-16, and 4-42 through 4-45

Cumulative Impacts

• Summary of ECT Position on Appeal: Throughout the DEIR the City fails to adequately

analyze cumulative impacts.

o Nolen’s Response: The ECT is factually wrong. The DEIR in sections 3.0 through

5.0 provides a comprehensive discussion of all categories of potentially significant

cumulative environmental impacts. The DEIR considered a list of reasonably

foreseeable projects (Table 3.0-1) and included all HEU sites despite not being

legally required to do so. Because speculatively foreseeable projects were also

included in the analysis, the DEIR treatment of Cumulative Impacts is a worst-case

scenario. The Final EIR provides and references substantial evidence to support its

findings, and no new information has been submitted or referenced that would

require recirculation of the DEIR or reconsideration of any findings. Suggested

mitigation measures would either not avoid or would not substantially lessen

impacts. See DEIR sections 3.0 through 5.0, Response to Comments generally,



and specifically Response to Comments 4-11 through 4-16, 4-20 through 4-32, 4-

39, 4-40, 4-46, 4-48, 4-49, 4-54, 4-56, 8-4 through 8-9, 9-2, and 9-3.

Americans with Disabilities Act Issue

• Summary of ECT Position on Appeal: The City’s notice for the Planning Commission

hearing indicated project files could be viewed in hard copy at City offices. The ECT claims

this precluded many elderly residents with medical conditions from being able to

participate in the hearing.

o Nolen’s Response: First, the ECT does not have standing to bring such a claim.

This unincorporated neighborhood association has not alleged harm to any of its

members, nor has it provided the requisite detail necessary to achieve

organizational standing had it done so. Second, the Planning Commission Agenda

expressly states, “If you require special assistance to participate in this meeting,

please contact the Development Services Department at 760-633-2710 at least 72

hours prior to the meeting.” No Individual contacted the City to express difficulty

obtaining documents or to request an alternative accommodation. No individual

participated in the hearing to express difficulty obtaining documents. Nolen notified

the ECT that project documents would be available digitally well before the

Planning Commission hearing, and the ECT’s only response was that other

members of the public might not be aware of the availability of documents linked to

the Agenda. ECT does not have standing to prosecute ADA concerns of non-ECT

members. The issue is a red herring, raised by the ECT because it was frustrated

that Nolen would not agree to a continuance of the Planning Commission Hearing.

In summary, based on the foregoing and the entirety of the administrative record, Nolen respectfully requests that the City Council deny the ECT’s appeal and confirm the Planning Commission’s unanimous approval of the project, certification of the FEIR, and adoption of Statement of Overriding Considerations (and other approvals). The Fox Point Farms project is the result of significant outreach and compromise between Nolen and the Fox Point community and represents exactly the type of project and process the City Council should support for the R30 zoned properties. Sincerely, COAST LAW GROUP, LLP Marco A. Gonzalez Attorney for Nolen Communities, LLC Cc: Nolen Communities, LLC


1

Anna Colamussi

From: Anna Colamussi

Sent: Monday, January 11, 2021 8:37 AM

To: David Dekker

Cc: [email protected]; Paul Kibel

Subject: RE: Fox Point Farms project

Good Morning David,

See my responses in green below.

Thank you,

Anna

From: David Dekker <[email protected]>

Sent: Saturday, January 9, 2021 1:19 PM

To: Anna Colamussi <[email protected]>

Cc: [email protected]; Paul Kibel <[email protected]>

Subject: Fox Point Farms project

[NOTICE: Caution: External Email]

Anna, I have a couple of questions for you.

The existing property is tiered downward in three locations from Leucadia Boulevard north to past Sidonia Court. The

plans for the project shows that the homes along Sidonia street are on one level. In order to achieve one level one of

two things must occur; Excavation or landfill. Can you tell me what the developer proposes to use? The proposed

residences along Sidonia are relatively level and there will be a combination of cut and fill to grade the proposed pads.

My second question refers to the proposal that Sidonia Street will be widened at the entrance from Leucadia Boulevard

on to Sidonia Street.

If this is true;

1. Why is this necessary? The City’s Public Road Standards require the widening. Each roadway has a classification and a

required ultimate right-of-way width.

2. How far north on Sidonia Street would this widening take place? The entire frontage of the Fox Point Farms property.

Thank you,

David Dekker

Encinitas Community Trust

Sent with ProtonMail Secure Email.


1

Anna Colamussi


Sent: Wednesday, January 20, 2021 7:02 PM

To: David Dekker

Cc: Paul Kibel

Subject: RE: Fox Point Farms Appeal

Hi David,

We are required to hear the project within 30 days of the appeal for projects involving maps.

Thank you,

Anna Colamussi


Sent: Friday, January 15, 2021 4:05 PM


Cc: Paul Kibel <[email protected]>

Subject: Fox Point Farms Appeal


Anna,

The subject appeal is scheduled for January 27.

My question is can the date be rescheduled for a date in March or April?



1

Anna Colamussi


Sent: Wednesday, January 20, 2021 7:00 PM

To: David Dekker

Cc: [email protected]; [email protected]

Subject: RE: Fox Point Farms project

Hi David,

The EIR’s geotechnical investigation (Appendix G) describes core samples.

That can be found in the Planning Commission Agenda Report that is still on our webpage and will be a part of the

Council Agenda Report as well.

Let me know if you have any trouble and I can find it for you and send.

Anna Colamussi


Sent: Monday, January 11, 2021 7:21 PM


Cc: [email protected]; [email protected]

Subject: Re: Fox Point Farms project


Anna,

Are the core sample results available?

I couldn't find them in the EIR.

Sent from ProtonMail mobile

-------- Original Message --------

On Jan 11, 2021, 8:36 AM, Anna Colamussi < [email protected]> wrote:

Good Morning David,

See my responses in green below.

Thank you,

Anna


2


Sent: Saturday, January 9, 2021 1:19 PM


Cc: [email protected]; Paul Kibel <[email protected]>

Subject: Fox Point Farms project


Anna, I have a couple of questions for you.

The existing property is tiered downward in three locations from Leucadia Boulevard north to past

Sidonia Court. The plans for the project shows that the homes along Sidonia street are on one level. In

order to achieve one level one of two things must occur; Excavation or landfill. Can you tell me what the

developer proposes to use? The proposed residences along Sidonia are relatively level and there will be

a combination of cut and fill to grade the proposed pads.

My second question refers to the proposal that Sidonia Street will be widened at the entrance from

Leucadia Boulevard on to Sidonia Street.

If this is true;

1. Why is this necessary? The City’s Public Road Standards require the widening. Each roadway has a

classification and a required ultimate right-of-way width.

2. How far north on Sidonia Street would this widening take place? The entire frontage of the Fox Point

Farms property.

Thank you,

David Dekker



This message contains confidential information and is intended only for the individual(s) addressed in

the message. If you are not the named addressee, you should not disseminate, distribute, or copy this e-

mail. If you are not the intended recipient, you are notified that disclosing, distributing, or copying this

e-mail is strictly prohibited.


1

Anna Colamussi


Sent: Tuesday, January 19, 2021 7:24 PM

To: David Dekker

Cc: Paul Kibel

Subject: RE: Fox Point Farms Appeal, January 27 Hearing.

Hi David,

The final Resolution is not signed. As soon as I receive the signed version, I can send it to you. It will also be part of the

Agenda Report that will be posted on Friday.

The condition of approval for the gated entry will be within that Resolution. However, the shuttle was never discussed

by the Planning Commission to be a condition of approval or mitigation measure in the EIR as part of their motion.

Please let me know if you have follow up questions.

Thank you,

Anna Colamussi


Sent: Tuesday, January 19, 2021 1:10 PM



Subject: RE: Fox Point Farms Appeal, January 27 Hearing.


Hello again Anna.

I have another question for you. During the Planning Commission hearing on December 17 at least two changes the EIR

were suggested by Nolen Communities.

1. Gated entry way on Sidonia Street for emergency vehicles only.

2.A shuttle bus operated by Nolen Communities for use by the residents of Fox Point Farms.

Can you give me copies of these and other changes that may have been made after the hearing on December 17?

Thank you again,

David Dekker


‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐

On Tuesday, January 19, 2021 10:55 AM, Anna Colamussi <[email protected]> wrote:

Hi David,


2

Absolutely. It will be Attachment CC‐2.

Thank you,

Anna Colamussi


Sent: Tuesday, January 19, 2021 10:50 AM



Subject: RE: Fox Point Farms Appeal, December 27 Hearing.


Hi Anna, i trust that when the agenda is posted that it will include the documents related to our appeal. I

reiterate that it is important that the public is aware of the reason for the appeal. Encinitas Community

Trust sent a trove of documents related to the appeal. The public must be able to read these

documents.

Thank you,

David Dekker



On Tuesday, January 19, 2021 10:21 AM, David Dekker <[email protected]> wrote:

Thank you Anna, but I'm on your website now and see nothing for the agenda on

January 27.

When will it be there?


3

.David Dekker



On Monday, January 18, 2021 8:39 PM, Anna Colamussi <[email protected]>

wrote:

Hi David,

I do see it in there as shown in the snip below:

The agenda will be posted on Friday.

Also, please note that I need your PowerPoint presentation no later

than 5pm this Wednesday, January 20th, which will be 7 days prior to

the hearing. No new information can be included after that date.

Let me know if you have any other questions.

Anna Colamussi


4





Subject: Fox Point Farms Appeal, December 27 Hearing.


Anna,

I received the notice for appeal on Saturday and noticed that there was

no link to the appeal documents.

Encinitas Community Trust feels that it is important for the public to

know and understand the basis for the appeal in advance. Failure to to

include this documentation undermines the public's ability to

participate in the hearing on the appeal.

Thanking you in advance,

David Dekker



This message contains confidential information and is intended only for

the individual(s) addressed in the message. If you are not the named


5

addressee, you should not disseminate, distribute, or copy this e‐mail. If

you are not the intended recipient, you are notified that disclosing,

distributing, or copying this e‐mail is strictly prohibited.


1

Anna Colamussi



To: David Dekker

Cc: Paul Kibel


Hi David,

Absolutely. It will be Attachment CC-2.

Thank you,

Anna Colamussi







Hi Anna, i trust that when the agenda is posted that it will include the documents related to our appeal. I reiterate that it

is important that the public is aware of the reason for the appeal. Encinitas Community Trust sent a trove of documents

related to the appeal. The public must be able to read these documents.

Thank you,

David Dekker


------- Original Message -------

On Tuesday, January 19, 2021 10:21 AM, David Dekker <[email protected]> wrote:

Thank you Anna, but I'm on your website now and see nothing for the agenda on January 27.

When will it be there?

.David Dekker


------- Original Message -------

On Monday, January 18, 2021 8:39 PM, Anna Colamussi <[email protected]> wrote:


2

Hi David,



Also, please note that I need your PowerPoint presentation no later than 5pm this

Wednesday, January 20th, which will be 7 days prior to the hearing. No new information

can be included after that date.


Anna Colamussi







Anna,

I received the notice for appeal on Saturday and noticed that there was no link to the

appeal documents.


3

Encinitas Community Trust feels that it is important for the public to know and

understand the basis for the appeal in advance. Failure to to include this documentation

undermines the public's ability to participate in the hearing on the appeal.


David Dekker



This message contains confidential information and is intended only for the individual(s)

addressed in the message. If you are not the named addressee, you should not

disseminate, distribute, or copy this e-mail. If you are not the intended recipient, you

are notified that disclosing, distributing, or copying this e-mail is strictly prohibited.


1

Anna Colamussi


Sent: Monday, January 18, 2021 8:39 PM

To: David Dekker

Cc: Paul Kibel


Hi David,



Also, please note that I need your PowerPoint presentation no later than 5pm this Wednesday, January 20th, which will

be 7 days prior to the hearing. No new information can be included after that date.


Anna Colamussi







Anna,

I received the notice for appeal on Saturday and noticed that there was no link to the appeal documents.

Encinitas Community Trust feels that it is important for the public to know and understand the basis for the appeal in

advance. Failure to to include this documentation undermines the public's ability to participate in the hearing on the

appeal.


David Dekker




2021-01-27 item #10a - attachment 07 page 1 of 19

Documents