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HomeMy WebLinkAbout06.A- Community Development 6.A DOC ID: 3857 C CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Public Hearing From: Mark Persico M/CC Meeting Date: 06/01/2015 Prepared by: Lisa Sherrick, (909) 384- 5057 Dept: Community Development Ward(s): 4 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Denying Appeal No. 15-02 and Upholding the Planning Commission Decision Denying Appeal No. 15-01; Thereby Affirming the Community Development Director's Approval of Minor Modifications to Tentative Tract Map No. 15731 and the North Plan (Highland Hills Project) Generally Located East of Freeway 330 and North of Highland Avenue. Current Business Registration Certificate: Financial Impact: None Mayor to open the hearing. . . Motion: Adopt the Resolution. Synopsis of Previous Council Action: • On December 20, 1982, the Mayor and Common Council ("MCC") approved the Highland Hills Specific Plan 82-1 ("HHSP 82-1") and certified the Environmental Impact Report. • On July 1, 1985, the MCC amended HHSP 82-1 to allow construction of low and moderate income housing units within the HHSP. • On January 14, 1988, the Highland Hills Homeowners filed suit against the City seeking to stop the low and moderate income, multi-family residential project. • On July 3, 1989, a settlement was reached allowing for construction of up to 1,730 dwelling units and a Championship "Links" Golf Range. • On February 5, 1993, the First Addendum to the 1989 Settlement Agreement was executed. Among other things, the First Addendum reduced the multi-family dwellings from 1,200 to 566 units. • On March 26, 2001, a Second Addendum (Attachment 1) to the 1989 Settlement Agreement was executed. Among other things, the Second Addendum was intended "to once and for all clarify the terms and provisions of those previous agreements and documents..." Background: The project known as "Highland Hills" encompasses approximately 544 gross acres in the northeast corner of the City, east of Freeway 330 and north of Highland Avenue. The project has a long history with the City dating back over 30 years. Below is a brief project history- Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 207 3857 • December 20, 1982 the Mayor and Common Council ("MCC") approved the Highland Hills Specific Plan 82-1 ("HHSP 82-1") and certified the Environmental Impact Report. • July 1, 1985 the MCC amended HHSP 82-1 to allow construction of low and moderate income housing units within the HHSP. • January 14, 1988 the Highland Hills Homeowners filed suit against the City seeking to stop the low and moderate income, multi-family housing project. • July 3, 1989 a settlement was reached allowing for construction of up to 1,730 dwelling units and a Championship "Links" Golf Range. • February 5, 1993 the First Addendum to the 1989 Settlement Agreement was executed. Among other things, the First Addendum reduced the multi-family dwellings from 1,200 to 566 units. • March 26, 2001 a Second Addendum to the 1989 Settlement Agreement was executed. Among other things, the Second Addendum was intended "to once and for all clarify the terms and provisions of those previous agreements and documents..." • April 17, 2001 the San Bernardino Planning Commission approved Tentative Tract Map No. 15731, which allows for the development of 1,516 dwelling units including a commercial pad and golf course. • July 28, 2014 a request for Minor Modifications pursuant Section 1.4 of the Second Addendum to the 1989 Settlement Agreement was filed by Hogan Edgcomb Consulting representing the current property owner, First American Title Insurance Company. • December 30, 2014 the Community Development Director issued a Notice of Official Action (Attachment 2) approving Minor Modifications to Tentative Tract Map No. 15731 and the North Plan for the Highland Hills Project through an Operating Memorandum (Attachment 3). • January 8, 2015 an appeal (Appeal No. 15-01) was filed by Cory Briggs on behalf of James Nunn and the Highland Hills Homeowners Association challenging the Community Development Director's approval of the Minor Modifications. • February 18, 2015 the Planning Commission conducted a public hearing on Appeal No. 15-01 and upheld the approval of the Minor Modification to the Highland Hills Project approved by the Community Development Director • March 3, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs challenging the Planning Commission's decision upholding the Community Development Director's approval of the Minor Modifications. • March 19, 2015 Cory Briggs alleged Brown Act violations due to the posted agenda being removed and therefore not available for 72 hours in advance of the February 18, 2015 meeting. • April 15, 2015 the Planning Commission voted to reconsider all items heard at the February 18, 2015 meeting including Appeal No. 15-01 for the Highland Hills Project. • April 15, 2015 the Planning Commission conducted a de novo public hearing on Appeal No. 15-01 and upheld the Minor Modifications to the Highland Hills Project approved by the Community Development Director on December 30, 2014. Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 208 3857 • April 28, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs challenging the April 15, 2015 Planning Commission decision upholding the Community Development Director's approval of the Minor Modifications. ANALYSIS OF REQUEST FOR MINOR MODIFICATION On July 28, 2014 a Minor Modification request was filed by Hogan Edgcomb Consulting representing the property owner. The request was filed under Section 1.4 of the Second Addendum to the 1989 Settlement Agreement. The Second Addendum, dated March 26, 2001 contemplates amendments to the Highland Hills project based upon the following criteria: "Minor modifications ("Minor Modification(s)") shall be deemed to be modifications which are requested by RSA [Rancho San Andreas Company Inc.] from time to time and which result in development which is equal to or less intense, from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan including, without limitation, (a) fewer residential units, (b) less gross leasable commercial space, (c ) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan, (d) enhancement of architectural, landscape and hardscape improvements, (e) more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications which the Director determines are similar to the foregoing, or any combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the modification is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan)." The table below briefly compares the originally approved Tentative Tract Map No. 15731 and the Modified Tentative Tract Map No. 15731 dated August 21, 2014 (Attachment 4). HIGHLAND HILLS COMPARISON TABLE NO. 1 Project Feature Approved TTM Modified TTM Percent Change Total Dwelling 1,516 695 -54% Units Single 463 270 -42% family Multi family 1,053 425 -60% Commercial 1.5 ac. 0 -100% Acreage Park Acreage 6.6 ac. 9.3 ac. +41% Total Grading —10 million cubic —3.5 million cubic yards -65% Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 209 6.A 3857 yards Total Disturbed 345 ac. 193 ac. -44% Area Jurisdictional —1.7 ac. —1.3 ac. -24% Streams Impacted Jurisdictional 15,887 sf. —13,321 sf. -16% Wetlands Impacted Traffic (avg. Daily 12,212 5,760 -53% trips) Stormwater Golf course solution Engineered solution n/a Features The companion document to the Modified Tentative Tract Map is the Modified North Plan, dated November 10, 2014 (Attachment 5) which contains specific architectural and development standards that enact the TTM. As indicated in Table No. 1 above, the requested minor modifications reduce the overall project impact in all areas of environmental concern. Further, the determination that the revised project meets the criteria in Section 1.4 of the Second Addendum and qualifies as a Minor Modification is outlined below: (A)fewer residential units: The approved Tentative Tract Ma TTM permits 1,516 dwelling units and the pp p ("("TTM") g Modified TTM permits a maximum of 695 dwelling units. This is a 54% reduction in total units. The Modified TTM/North Plan meets this criterion. (B)less gross leasable commercial space: The approved TTM allowed 1.5 acres of commercial development. The Modified TTM and North Plan eliminates all commercial acreage. This criterion is met. (C ) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan: By reducing the number of units and reducing the total grading by approximately 65%, the overall footprint and corresponding environmental impacts have been significantly reduced. Development and grading have been confined to the lower slopes. Therefore, the infrastructure necessary to serve the project has been reduced and less intrusive. This criterion has been satisfied. (D)enhancement of architectural, landscape and hardscape improvements: The original TTM and North Plan required approval of architectural guidelines prior to issuance of building permits. The updated conditions of approval for the Modified TTM and North Plan also require approval of design guidelines. Additionally, the original TTM Updated: 5/27/2015 by Henry Empeno Jr. C I Packet Pg. 210 6.A 3857 and North Plan and the Modified TTM and North Plan require approval of landscape and hardscape plans. This criterion has been met. (E)more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology: State regulations, such as those for energy efficiency and management of storm water runoff, require more efficient mitigation measures and improved technology overall. The Modified TTM and North Plan will include water quality control basins, building energy requirements as prescribed in the latest building code, and will meet all other requirements imposed by State and Federal agencies, such as the Regional Water Quality Control Board, California Department of Fish and Wildlife and the Army Corps of Engineers. Because of these performance standards, many of which did not exist at the time of the original TTM approval, the Modified TTM and North Plan meets this criterion. (F)other modifications which the Director determines are similar to the foregoing, or any combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the modification is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan): The one component of the Modified TTM and North Plan which has a potential negative effect is the elimination of the golf course. Although the golf course was located in a V floodplain, it also acted as a buffer between the proposed higher density project components, primarily apartments, and the single-family residential units to the east. Under the Modified TTM and North Plan, the golf course has been eliminated and this change is considered to represent a net loss to the project and community. However, when considered in the context of the whole project, this change is offset by four important benefits resulting from the Modified TTM and North Plan. First, the Modified North Plan/TTM will incorporate positive flood control solutions. Second, the northern portion of the project site will remain undeveloped under the Modified North Plan/TTM because the residential development footprint has been reduced in size and shifted to the lower portions of the project site. Third, the development proposed for the golf course area under the Modified TTM and North Plan is proposed to be medium density single-family residential development, which will be compatible with the adjacent single- family residential development. Fourth, the Modified TTM and North Plan contain a park on Arroyo Vista Drive, providing a substantial community benefit to the existing homes to the east as well as providing some buffer. In accordance with this criterion, the Modified TTM and North Plan, in the aggregate, is equal to or less intense from the standpoint of impacts under CEQA, than the Approved TTM and North Plan. Therefore this criterion has been met. The request for Minor Modification was circulated internally to the relevant City departments for review and comment. Departments were asked to update their respective conditions to reflect changes in State or federal law and to be consistent with the approved Minor Modifications. An updated set of conditions of approval has been Updated: 5/27/2015 by Henry Empeno Jr. C I Packet Pg.211 6.A 3857 incorporated into the Operating Memorandum. In addition to the analysis above, a thorough review of the Minor Modifications was prepared by Tom Dodson & Associates (Attachment 6). The document contains an analysis of the environmental issues related to the Modified TTM 15731 and the Modified North Plan. It concludes that the Modified project has a significantly reduced impact on the environment than the original project. Based upon the above analysis, the Modified TTM and North Plan submitted to the Community Development Director qualifies as a "Minor Modification" of the Approved TTM and North Plan within the meaning of Section 1.4 of the Second Addendum to the 1989 Settlement Agreement. Additionally, the approval was granted through an Operating Memorandum, dated December 30, 2014. GENERAL PLAN/SPECIFIC PLAN The Highland Hills Specific Plan is incorporated by reference into the 2005 San Bernardino General Plan. There are a total of eight specific plans listed in the Land Use Element of the General Plan. According to the 2005 General Plan, the intent of specific plans is: "Specific plans provide focused guidance and regulation for particular areas. They 0 generally include a land use plan, circulation plan, infrastructure plan, development standards, design guidelines, phasing plan, financing plan, and implementation plan. Specific Plans provide either detailed policy guidance or zoning level regulation." The Highland Hills Specific Plan and any modifications approved under Section 1.4 of the Second Addendum to the 1989 Settlement Agreement are consistent with the 2005 General Plan. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) Approval of the Minor Modification is exempt from review under the California Environmental Quality Act. Pursuant to Public Resources Code Section 21080 (b)(1) and CEQA Guidelines Section 15268, CEQA only applies to discretionary projects. Section R "Intent of Second Addendum" states that the property may be developed "without any further discretionary approvals." Furthermore, if the conditions described in Section 1 .4 exist, approval of the Minor Modifications is prescribed by the Director, which means that modifications are also ministerial actions. The originally adopted Mitigation Measures were reviewed and updated to reflect changes in State or Federal law and to be consistent with the approved Minor Modifications. An updated set of Mitigation Measures and Mitigation Monitoring and Reporting Program (MMRP) have been incorporated into the approval. SUMMARY OF PLANNING COMMISSION ACTION Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 212 6.A 3857 On April 15, 2015 the Planning Commission conducted a duly noticed public hearing to consider an appeal filed by Cory Briggs on behalf of James Nunn and the Highland Hills Homeowners. The appeal (Appeal No. 15-01) challenged the December 30, 2014 decision of the Community Development Director approving Minor Modifications to Tentative Tract Map No. 15731 and the North Plan. The appellant specified three grounds for the appeal: 1. The approval is not authorized by the Settlement Agreement dated March 26, 2001; 2. The approval violates the Planning and Zoning Law, and the San Bernardino Municipal Code, among other laws; 3. The approval is not exempt from environmental review under CEQA. After considering all of the testimony presented both orally and in writing, the Planning Commission denied the appeal and upheld the December 30, 2014 decision of the Community Development Director. Attached is a copy of the Planning Commission staff report (Attachment 7), the minutes from April 15, 2015 (Attachment 8) and a copy of the Official Notice of Action (Attachment 9). A Notice of Exemption for the Planning Commission action of April 15, 2015 was filed and posted with the San Bernardino County Clerk's Office on April 20, 2015. ANALYSIS OF APPEAL NO. 15-02 On April 28, 2015, an appeal was filed by Briggs Law Corporation on behalf of James Nunn and the Highland Hills Homeowners (Attachment10), pursuant to San Bernardino Municipal Code Section 19.52.100. As summarized below, the appellant specified five grounds for the appeal: 1. The Planning Commission prejudicially abused its discretion under the California Environmental Quality Act; 2. The Planning Commission abused its discretion under Municipal Code Section 19.66.150; 3. The Planning Commission abused its discretion under the Subdivision Map Act; 4. Assuming the approval is a minor amendment to a tract map, the Planning Commission abused its discretion because there is a lack of evidence; and 5. Appellant is entitled to appeal to the City Council pursuant to Public Resources Code Section 21151 without having to pay an unreasonable appeal fee. Point No. 1: The Planning Commission prejudicially abused its discretion under the California Environmental Quality Act Appellants assert that the "Planning Commission prejudicially abused its discretion under the California Environmental Quality Act ("CEQA") by approving the modification using a CEQA exemption because it does not qualify as a `minor' modification under the Second Addendum" and that "the approval is not ministerial and does not qualify for a Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 213 3857 CEQA exemption." It should be noted, again, that Tentative Tract Map 15731 and the North Plan are fully vested. The scope of the review of the Community Development Director was merely to identify whether the Modified TTM and North Plan qualifies as a "Minor Modification" of the Approved TTM and North Plan within the meaning of Section 1.4 of the Second Addendum to the judicially approved 1989 Settlement Agreement. There is no new project, but simply a modification to an earlier project by way of a Minor Modification process authorized in the Second Addendum to the 1989 Settlement Agreement, dated March 26, 2001, which was also approved by the Superior Court. Moreover, approval of the Minor Modification is exempt from review under CEQA. Pursuant to Public Resources Code Section 21080 (b)(1) and CEQA Guidelines Section 15268, CEQA only applies to discretionary actions. Section R "Intent of Second Addendum" states that the property may be developed "without any further discretionary approvals." Furthermore, if the conditions described in Section 1.4 exist, approval of the Minor Modifications is prescribed and mandated by the Director, which means that modifications are also ministerial actions. More specifically, the Second Addendum to the 1989 Highland Hills Homeowners Settlement Agreement, approved by Superior Court Judge A. Rex Victor, San Bernardino County Superior Court Case No. 241464, validates and clarifies the 1989 approval and the First Addendum approved in 1993. As specifically stated in Sections Q and R, the intent of the Second Addendum is: "Q. Subject to the limitations set forth in this Second Addendum, RSA [Rancho San Andreas Company] is entitled to develop the Highland Hills Property pursuant to the North Plan and all applicable rights and entitlements including, without limitation, the rights and entitlements which are more particularly described in Highland Hills Specific Plan 82-1, the Highland Hills EIR, the 1989 General Plan, the 1989 General Plan EIR. The 1989 Settlement Agreement, the First Addendum, the Supplement, the Highland Hills Area N/S ERMP 1603 Agreement and related documents, all as clarified by this Second Addendum (the foregoing documents and this Second Addendum are collectively referred to as the "Entitlement(s)". Following approval of the Project Tentative Map, all references to Entitlements shall also be deemed to include the Project Tentative Map. RSA is also entitled under applicable law to include within the development density permitted by the North Plan, up to 200 senior citizen (resort) dwelling units for sale to senior citizens ("Senior Citizen (Resort) Dwelling Units"). A detailed description of the North Plan, including the Senior Citizen (Resort) Dwelling Units, as well as the application RSA has filed with the City to implement approval of the Project Tentative Map pursuant to the North Plan, is attached as Exhibit "F" and incorporated by this reference. All references in this Second Addendum to the North Plan shall be deemed to be references to the North Plan, including such Senior Citizen (Resort) Dwelling Units. R. In reliance on the covenants of the City in this Second Addendum, RSA will continue Updated: 5/27/2015 by Henry Empeno Jr. C I Packet Pg.214 6.A 3857 to incur substantial costs in order to implement the Entitlements by development of the Highland Hills Property pursuant to the North Plan. Therefore, by entering into this Second Addendum, the Common Council intends to clarify the intent of the Entitlements, to clarify to RSA that the Entitlements are vested and that RSA may develop the Highland Hills Property pursuant to the North Plan without any further discretionary approvals being required other than as set forth in this Second Addendum. In addition, by entering into this Second Addendum and in order to carry out the intent of the Entitlements, the Common Council also intends to clarify that the grandfathering of development of the Highland Hills Property pursuant to the North Plan (as provided in the 1989 Settlement Agreement and the 1989 General Plan) means that the Highland Hills Property may be developed pursuant to the North Plan just as if such development had occurred pursuant to the governing ordinances, rules, regulations and policies which existed in 1989." The project is, and has been, fully vested without any further discretionary approvals being required. Appellants further contend that "the Project as proposed will have environmental impacts and require mitigation that was not analyzed in any environmental document." Appellant's contention appears to suggest additional environmental review under CEQA is necessary. However, as indicated, CEQA mandates that the opposite conclusion be reached. "[A]n agency is required to prepare a subsequent or supplemental EIR only where the agency grants a `discretionary' approval" (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 935-36) [Emphasis added] and only if certain findings are made by the agency not present here. (Pub. Res. Code § 21166 and CEQA Guidelines § 15162). In the absence of the authority for such discretion, the agency has no jurisdiction to prepare a subsequent or supplemental EIR. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479, see also CEQA Guidelines § 15162(c) stating, "[o]nce a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required" and [I]nformation appearing after an approval does not require reopening of that approval.") Given that CEQA only applies to discretionary actions (Pub. Res. Code § 21080(b)(1) and CEQA Guidelines § 15268), there is no mechanism to permit supplemental or subsequent environmental review. Notably, a thorough environmental review of the Minor Modifications was prepared by Tom Dodson & Associates, which contains an analysis of the environmental issues related to Modified TTM 15731 and the Modified North Plan and determines that the Modified project has a significantly reduced impact on the environment as compared to the original project. The record before the City demonstrates the following: Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg.215 6.A 3857 1. There are no substantial changes proposed by the project which would require major revisions of the previously approved environmental impact report due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. 2. There are no occurrences of substantial changes with respect to the circumstances under which the project is being undertaken which would require major revisions in the previously approved environmental impact report due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. 3. There is no new information of substantial importance, which was not known and could not have been known at the time the previously approved environmental impact report was certified as complete, which has become available. 4. There is no new information that the project will have one or more significant effects not discussed in the previously approved environmental impact report 5. There is no new information that the project will have significant effects previously examined which will be substantially more severe than shown in the previously approved environmental impact report. 6. There is no new information that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project and the project proponents declined to adopt the mitigation measure or alternative. 7. There is no new information that mitigation measures or alternatives which are considerably different from those analyzed in the previously approved environmental impact report would substantially reduce one or more significant effects on the environment and the project proponents declined to adopt the mitigation measure or alternative. 8. The Minor Modifications to the project will result in a project that is less intense from the standpoint of CEQA. 9. The Minor Modifications to the project do not cause any new significant environmental effects. 10.The Minor Modifications to the project result in either the deletion of or a substantial decrease in the severity of environmental impacts. Staff recommends that the Common Council reject this point as the basis for an appeal Updated: 5/27/2015 by Henry Empeno Jr. C d Packet Pg. 216 3857 and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the December 30, 2014 decision of the Community Development Director. Point Nos. 2 &3: 2) The Planning Commission abused its discretion under Municipal Code Section 19.66.150 3) The Planning Commission abused its discretion under the Subdivision Map Act Appellants advance two further related (and conflicting) grounds for appeal. Appellants' assert certain findings were not made while also asserting that the findings were made but are not supported by substantial evidence. Appellants contend that "[t]he Planning Commission abused its discretion under Municipal Code 19.166.150 because there is no support for the findings that the tract map is consistent with the General Plan, any applicable specific plan, and all provisions with the Municipal Code" and "[a]Iternatively, [that] no such findings were made. These findings were made in the Operating Memorandum dated December 30, 2014 which adopted all the findings contained in the Dodson Report. Section 19.166.150 of the San Bernardino Municipal Code states in relevant part: ...The tentative map may be approved or conditionally approved by the Commission if it finds that the proposed subdivision, together with the provisions for its design and improvements, are consistent with the General Plan, any applicable specific plan, and all applicable provisions of the Municipal Code....The tentative map may be denied by the Commission on any of the grounds contained in the Map Act, General Plan or the Municipal Code. The Commission shall deny the tentative map if it makes any of the following mandatory findings contained in Map Act Section 66474: A. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451; B. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans... Particularly significant, the language of Section 19.166.150 does not mandate that any findings be made. Instead, it provides for certain action if certain factual findings are made. Notwithstanding, all the findings were made and are supported by substantial evidence. The Dodson Report, from which all findings were adopted by the Operating Memorandum states as follows: The Approved North Plan/TTM was found to be consistent with the General Plan and the Modified North Plan/TTM [sic] is also consistent because the total number of units has been reduced and the overall development footprint has also been reduced. The proposed commercial uses associated with the golf course have been eliminated under the Modified North Plan/TTM, which further reduces any potential conflicts with the City Updated: 5/27/2015 by Henry Empeno Jr. C d Packet Pg. 217 6.A 3857 General Plan. Overall, the Modified North Plan/TTM will be more consistent with the City General Plan than the Approved North Plan/TTM. Additionally, as summarized in the Second Addendum, "[p]ursuant to the 1989 Settlement Agreement, the North Plan was determined to be the preferred plan of development under Highland Hills Specific Plan 82-1 and was ordered by the Superior Court to be grandfathered and incorporated as such into the then pending 1989 General Plan (defined below). Such grandfathering and incorporation occurred by later action of the Common Council in approving the 1989 General Plan. As a result, Highland Hills Specific Plan 82-1 took precedence over any other provision in the 1989 General Plan...." The City's current General Plan continues to list the Highland Hills Specific Plan as an approved specific plan along with 7 other specific plans which are complementary to and consistent with the City's General Plan. The project is consistent with the General Plan in that it meets General Plan Policy 2.1.2 which requires that new development with potentially adverse impacts on existing neighborhoods or residents such as noise, traffic, emissions, and storm water runoff, be located and designed so that quality of life and safety in existing neighborhoods are preserved. Here, the Minor Modifications to the project will result in a project that is less intense from the standpoint of CEQA and that reduces potentially adverse impacts on existing neighborhoods and residents. The project is further consistent with the General Plan in that it meets General Plan Policy 2.2.1 which goal is to ensure compatibility between land uses and quality design through adherence to the standards and regulations in the Development Code and policies and guidelines in the Community Design Element. The project is required to (and exceeds) standards and regulations set forth in the Development Code. The project-related architectural, landscape, and hardscape improvements are of high quality. In addition, design guidelines, which will incorporate current architectural design standards, are required under the TTM conditions prior to issuance of the first building permit. Such a requirement is also consistent with General Plan Policy 2.5.4 which require that all new structures achieve a high level of architectural design and provide a careful attention to detail. Moreover, the project is consistent with the General Plan in that it meets General Plan Policy 2.5.6 in that the project is designed to complement and not devalue the physical characteristics of the surrounding environment. The project is consistent with General Plan Policy 2.2.2 because of the use of buffer employed by the project located between existing uses. The project contains a park on Arroyo Vista Drive, which in addition to providing a community benefit, also provides a buffer to the existing homes to the east. The project also incorporates several positive flood control solutions which prevent the downstream flooding of Highland Avenue and Summertrail Place. These project features are consistent with General Plan Policy 2.2.3, 9.4.1, and 10.6.4. The project is further consistent with the General Plan because the project is contingent upon the ability of public infrastructure to provide sufficient capacity to accommodate its demands and mitigate its impacts. (General Plan Policy 2.7.5; see also see also Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 218 3857 General Plan Polices concerning "Utilities"). In fact, the project substantially reduces both the number of units and the development area with consequent reductions in demand for public utilities. Moreover, the "Public Services" mitigation measures contained in the Mitigation Monitoring and Reporting Program likewise ensure that the policies contained in General Plan Policy 2.7.5 are observed. Similarly, the "Fire Protection" mitigation measures contained in the Mitigation Monitoring and Reporting Program will "ensure that design and development standards appropriately address the hazards posed by wildfires and wind, with particular focus on the varying degrees of these threats in the foothills, valleys, ridges, and the southern and western flanks of the San Bernardino Mountains." (General Plan Policy 2.8.2; see also General Plan Polices concerning "Public Facilities and Services"). The project is consistent with the General Plan in that is assists in "accommodate[ing] the production of new housing units on currently vacant or underutilized land at densities and standards designated in the Land Use Element of the General Plan. (General Plan Policy 3.1.1). The project is also consistent General Plan 6.2.3 in that the "Transportation/Circulation" mitigation measures contained in the Mitigation Monitoring and Reporting Program results in identifying local roadway and intersection improvements necessary to mitigate the traffic impacts of new developments and land use changes. The mitigation measures require the project to pay its fair share for street improvements, install certain street improvements, and install a traffic signal or other form of traffic control at the westerly access to the project. Such improvements are likewise consistent with General Plan Policy 6.2.5, 6.2.6 and 6.2.7. The project is similarly consistent with the Highland Hills Specific Plan. In fact, the Highland Hills Specific Plan was specifically adopted to allow and guide development of the property. The originally adopted mitigation measures contained within the joint Highland Hills Specific Plan/Environmental Impact Report are either included or have been reviewed and updated to reflect changes in State of Federal Law to remain consistent with the Minor Modifications to the project. The project continues to be consistent with the "Design Objectives and Policies" of the Highland Hills Specific Plan which provides, among other guidelines, that development must be consistent with the General Plan, assist in eliminating exposure to flooding of residential areas, be phased to minimize impacts on public utility and service providers, adopt a cluster concept of development, and locate single family lots in the southern portion of the property to abut existing single family subdivisions. Based on the record before the City, staff recommends that the Common Council expressly reconfirm the following findings which are consistent with Section 19.166.150. The evidence before the City demonstrates the following: 1. The proposed map is consistent with all applicable general and specific plans as specified in Section 65451; 2. The design or improvement of the proposed subdivision is consistent with applicable general and specific plans; Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 219 6.A 3857 3. The site is physically suitable for the type of development; 4. The site is physically suitable for the proposed density of development; 5. The design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat; 6. The design of the subdivision or type of improvements is not likely to cause serious public health problems; and 7. The design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. Appellants further contend that "[t]he Planning Commission abused its discretion under the Subdivision Map Act because it did not make the findings required by Government Code Sections 66473.5 and 66474" and "[a]lternatively any such findings were not supported by substantial evidence." The Operating Memorandum dated December 30, 2014 does in fact include specific findings related to the consistency with the Subdivision Map Act (i.e., "[The Modified TTM is] consistent with the Subdivision Map Act and the City's Development Code."). Section 66473.5 of the Government Code reads in full as follows: No local agency shall approve a tentative map, or a parcel map for which a tentative map was not required, unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan required by Article 5 (commencing with Section 65300) of Chapter 3 of Division 1, or any specific plan adopted pursuant to Article 8 (commencing with Section 65450) of Chapter 3 of Division 1. A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has officially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan. As addressed above, findings were made and supported by substantial evidence, that the Modified TTM is consistent with the General Plan and Highlands Hills Specific Plan. Based on the record before the City, staff recommends that the Common Council reconfirm such a finding. Section 66474 of the Government Code titled "Findings justifying disapproval" reads in relevant part as follows: A legislative body of a city or county shall deny approval of a tentative map, or a parcel Updated: 5/27/2015 by Henry Empeno Jr. C d Packet Pg.220 -6.A 3857 map for which a tentative map was not required, if it makes any of the following findings: (a) That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451. (B) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. (C) That the site is not physically suitable for the type of development. (D) That the site is not physically suitable for the proposed density of development. (E) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. (F) That the design of the subdivision or type of improvements is likely to cause serious public health problems. (G) That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. Particularly g language significant, the Ian ua e of Section 66474 of the Government Code, like Section 19.166.150 of the City's Municipal Code, does not mandate that any findings be made. Instead, it provides for certain action if certain findings are made. Nevertheless, the converse of each finding (i.e., that the proposed map is consistent with applicable general and specific plans ...; that the design for improvement of the proposed subdivision is consistent with applicable general and specific plans, etc.) mentioned in Section 66474 of the Government Code and Section 19.166.150 of the City's Municipal Code, have been made and are supported by substantial evidence. As previously outlined, based on the record before the City, staff recommends that the Common Council expressly restate and reconfirm the converse of each such finding. Based on the foregoing, staff recommends that the Common Council reject these points as a valid basis for an appeal and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the December 30, 2014 decision of the Community Development Director. Point No. 4: Assuming the approval is a minor amendment to a tract map, the Planning Commission abused its discretion because there is a lack of evidence Irrespective of whether or not the Director of Community Development's December 30, 2014 decision involved a "minor amendment to a tract map," there is sufficient evidence in the record to support the following: (1) no lots, units, or buildings are being added, (2) changes are consistent with the intent of the original tentative tract map approval, and Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg.221 6.A 3857 (3) there are no resulting violations of the Map Act or the City's Development Code. Based on the foregoing, staff recommends that the Common Council reject this point as a valid basis for an appeal and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the December 30, 2014 decision of the Community Development Director. Point No.5: Appellant is entitled to appeal to the City Council pursuant to Public Resources Code Section 21151 without having to pay an unreasonable appeal fee A fee in the amount of$1,801.32 is a reasonable appeal fee. Appellant fails to advance any evidence to support the conclusion that the appeal fee is unreasonable or what "unreasonable requirements" exist. The fee is designed to offset the costs of processing an appeal. This contention, without more explanation, is an invalid basis for an appeal. Staff recommends that the Common Council reject this point as a valid basis for an appeal. CONCLUSION Elimination of the golf course is an intensification of one component of the project. However, when all components of the project are considered - a 54% reduction in dwelling units, a complete elimination of commercial acreage, a 65% reduction in grading, a 53% reduction in traffic, a 44% reduction in the total disturbed area, a 16% reduction in impacts to wetlands and a 24% reduction in impacts to stream - the modified project is significantly less intense than the original project. Based upon the totality of the changes proposed through the Modified Tentative Tract Map 15731 dated August 21, 2014, and the Modified North Plan dated November 10, 2014, the Planning Commission upheld the decision of the Community Development Director and determined the requested changes fully comply with Section 1.4 of the Second Addendum to the 1989 Settlement Agreement. Staff finds that the five points raised by the appellant are invalid. The approval of the Minor Modification is permitted under Section 1.4 of the Second Addendum. Approval of the Minor Modification is consistent with State law and the City of San Bernardino Ordinances and laws. Approval of the Minor Modification is exempt from the requirements of CEQA as a Ministerial act. The Planning Commission, and Community Development Director, clearly followed all applicable Municipal Codes, the State Subdivision Map Act and the California Environmental Quality Act in reaching its conclusion and upholding the December 30, 2104 decision of the Community Development Director. As outlined above, the Planning Commission did not abuse its discretion when considering Appeal No. 15-01. Staff finds there is no basis for the appeal filed on April 28, 2015, FINDINGS OF FACT 1 . The Minor Modifications are permitted under Section 1.4 of the Second Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 222 3857 Addendum to the 1989 Settlement Agreement. Section 1.4 contains specific criteria in determining if the request is a "Minor Modification." The criteria are as follows "(a) fewer residential units, (b) less gross leasable commercial space, (c ) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan (d) enhancement of architectural, landscape and hardscape improvements, (e) more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications which the Director determines are similar to the foregoing, or any combination of the same" 2. The Minor Modifications approved by the Community Development Director permit a project that is less intense from the standpoint of CEQA. The number of dwelling units is reduced from 1,516 to 695 a 54% reduction. The commercial acreage has been completely eliminated. The amount of grading has been reduced from approximately 10,000,000 cubic yards to 3,500,000 cubic yards a 65% reduction. The amount of disturbed area has been reduced from 345 acres to 193 acres a 44% reduction. The total traffic has been reduced from 12,212 average daily trips to 5,760 average daily trips a 53% reduction. 3. Elimination of the golf course is an intensification of one component of the project, however, when all components of the project are considered, the modified project is significantly less intense than the original project. 4. The Highland Hills project is vested under the Second Addendum and may be developed without any further discretionary actions. Approval of Minor Modifications is prescribed by Section 1.4 of the Second Addendum and is therefore non-discretionary. The Minor Modifications are exempt from review under the California Environmental Quality Act (CEQA) as a Ministerial action pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. 5. There is no basis for the appeal filed by James Nunn and the Highland Hills Homeowners. The five points contained in the appeal: a) the Planning Commission prejudicially abused its discretion under the California Environmental Quality Act; b) the Planning Commission abused its discretion under Municipal Code Section 19.66.150; c) the Planning Commission abused its discretion under the Subdivision Map Act; d) assuming the approval is a minor amendment to a tract map, the Planning Commission abused its discretion because there is a lack of evidence; and e) appellant is entitled to appeal to the City Council pursuant to Public Resources Code Section 21151 without having to pay an unreasonable appeal fee, are without merit. 6. There are no occurrences of substantial changes with respect to the circumstances under which the project is being undertaken which would require major revisions in the previously approved environmental impact report due to the involvement of new significant environmental effects or a substantial increase Updated: 5/27/2015 by Henry Empeno Jr. C d Packet Pg.223 6.A 3857 in the severity of previously identified significant effects. 7. There is no new information of substantial importance, which was not known and could not have been known at the time the previously approved environmental impact report was certified as complete, which has become available. 8. There is no new information that the project will have significant effects previously examined which will be substantially more severe than shown in the previously approved environmental impact report. 9. There is no new information that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project and the project proponents declined to adopt the mitigation measure or alternative. 10. There is no new information that mitigation measures or alternatives which are considerably different from those analyzed in the previously approved environmental impact report would substantially reduce one or more significant effects on the environment and the project proponents declined to adopt the mitigation measure or alternative. 11. The site is physically suitable for this type of development, and design of the proposed subdivision is consistent with the 2005 San Bernardino General Plan and the Highland Hills Specific Plan. 12. The design of the subdivision and the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. 13. The design of the subdivision or type of improvements is not likely to cause serious public health problems. 14. The changes contained within the Modified TTM and the North Plan are consistent with the intent of the original tentative tract map approval. 15. The appeal fee in the amount of $1,801.32 is a reasonable appeal fee offsets the costs of processing the appeal. RECOMMENDATION That the Mayor and Common Council adopt the Resolution and deny Appeal 15-02 based upon the Findings of Fact and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the December 30, 2014 decision of the Community Development Director approving Minor Modifications to Tentative Tract Map No. 15731 and the North Plan. Attachments Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 224 3857 Attachment 1 Second Addendum to the 1989 Settlement Agreement (March 26, 2001) Attachment 2 Notice of Official Action from Community Development Director (December 30, 2014) Attachment 3 Operating Memorandum with conditions of approval and MMP approving the Modified Tentative Tract Map and Modified North Plan (December 30, 2014) Attachment 4 Modified Tentative Tract Map No. 15731 (August 21, 2014) Attachment 5 Modified North Plan (November 10, 2014) Attachment 6 Highland Hills Evaluation of Minor Modifications Criteria and Environmental Impacts for the Modified North Plan/TTM 15731 (September 2014) Attachment 7 Planning Commission staff report (April 15, 2015) Attachment 8 Planning Commission minutes (April 15, 2015) Attachment 9 Notice of Official Action from Planning Commission (April 22, 1015) Attachment 10 Appeal 15-02 (April 28, 2015) Attachment 11 Common Council Resolution No. XXX - Denying Appeal 15-02 Supporting Documents: Attachment 1 - Second Addendum to 1989 Settlement Agmt (PDF) Attachment 2 - Notice of Official Action (PDF) Attachment 3 (1) - Operating Memorandum (PDF) Attachment 3 (2) - Updated Conditions of Approval (PDF) Attachment 3 (3) - Updated MMRP (PDF) Attachment 4 - TTM SHT 1_08212014 (PDF) Attachment 4 - TTM SHT 2_08212014 (PDF) Attachment 4 - TTM SHT 3_08212014 (PDF) Attachment 5 - Modified North Plan_11102014 (PDF) Attachment 6 - Highland Hills Evaluation of Minor Modifications Criteria and EnvirommnetalImpacts (PDF) Attachment 7 - PC staff report_04152015 (PDF) Attachment 8 - PC minutes-04152015 (PDF) Attachment 9 - Notice of PC action—04222015 (PDF) Attachment 10 - AP15-02_04282015 (PDF) Attachment 11 - MCC Resolution Highland Hills Project Minor Modification (DOC) Updated: 5/27/2015 by Henry Empeno Jr. C Packet Pg. 225 6.A.a RECORDING REQUESTED BY AND Recorded in Official Records, County of WHEN RECORDED MAIL TO: San Bernardino, Larry Walker, Recorder Tohn C.Nolan,Esq. 161 .00 Mark A. Ostocih,Esq. Dac O e 20010537595 GRESHAM, SAVAGE NOLAN&TILDEN,LLP 2 , 4 2 pm 11 /28/01 600 North Arrowhead Ave.,Suite 300 San Bernardino, CA 92401-1148 205 40296785 01 04 c� (909)884-2171 0 1 2 3 4 7 5 0 u; 6 g g � T PG FEE ASPF GIMS PH CPY CRT CPY ADD NM PEN PR PCOR O Ri Q NON ST L SVY CIT-CO TRANS TAX DA CHRG EXAM Q — Q N STIPULATION TO APPROVE AND CONFIRM SECOND ADDENDUM CU TO JULY 3, 1989 SETTLEMENT AGREEMENT AND ORDER THEREON LO 00 M E 67 Q r-� C N E 0) r=. 00 CD T- 0 E z3 G d Z3 ZS Q ZS C O U 0 N r C 0) U t0 r w Q a: E U 0 fC r Q NARUB-000 Packet Pg. 226 fi.A.a t. 1 John C. Nolan, State Bar#38128 Mark A. Ostoich, State Bar#62323 2 GRESHAM, SAVAGE, NOLAN & TILDEN, LLP 600 N. Arrowhead Avenue, Suite 300 SUP KR C=` f 3 San Bernardino, CA 92401-1148 SAN BEPN V-Q': O Telephone: (909) 884-2171 «=3°= 4 Facsimile: (909) 888-2120 0 LO 5 Attorneys for Real Parties in Interest, ::;;::;; 6 WARNER W. HODGDON and RANCHO SAN Z 6 ANDREAS COMPANY, INC. a 7 a N 8 SUPERIOR COURT OF CALIFORNIA = 9 COUNTY OF SAN BERNARDINO—CENTRAL DISTRICT aM 10 r� 11 LO HIGHLAND HILLS HOMEOWNERS ) 12 ASSOCIATION, ) E 13 Petitioner, ) CASE NO. 241464 a 14 vs. ) E d 15 CITY OF SAN BERNARDINO; COMMON ) �, COUNCIL FOR THE CITY OF SAN rn 16 BERNARDINO; and ENVIRONMENTAL ) STIPULATION TO APPROVE AND rn REVIEW COMMITTEE for the CITY OF SAN ) CONFIRM SECOND ADDENDUM I 0 17 BERNARDINO; and DOES I through XX, ) JULY 3, 1989 SETTLEMENT AGREEMENT AND ORDER 18 Respondents. ) THEREON a� 19 DENNIS A. MARTIN; DUKES-DUKES AND ) Q ASSOCIATES, a California Corporation; ) 20 HIGHLAND HILLS GATEWAY; HIGHLAND ) o HILLS PROPERTIES, a Limited Partnership; ) d 21 SAN GORGONIO COMPANY, a California ) N Corporation; WILLIAM G. SMITH, WARNER ) 22 HODGDON(DOE XXI), and DOES XXII ) through XXXV, ) 23 ) Real Parties in Interest, ) w 24 ) a 25 CITY OF HIGHLAND, ) 26 Amicus Curiae. ) E w 27 a 28 \\1 GRESHAM,SAVAGE NOLAN&TILDEN,LLP 600 N.ARROWHEAD AVE SUITE300 Stipulation to Approve and Confirm Second Addendum SAN BERNARDWO,71 92401 to Jul 3,1989 Settlement Agreement and Order Thereon c909)sa4-n�i Y g Packet Pg.227 1 IT IS HEREBY STIPULATED AND AGREED by and between the Parties to the abc 2 entitled action,by and through their respective attorneys of record, as follows: 3 1. RANCHO SAN ANDREAS COMPANY, INC. is the successor-in-interest to 4 the rights of DENNIS A. MARTIN; DUKES-DUKES AND ASSOCIATES, a California o LO 5 corporation; HIGHLAND HILLS GATEWAY; HIGHLAND HILLS PROPERTIES, a limite( d Z 6 partnership; SAN GORGONIO COMPANY, a California corporation; and, WILLIAM G. 7 SMITH. a a N 8 2. That this Court has the authority and jurisdiction to, and should,reopen this act x 9 and approve the fully executed Second Addendum to the July 3, 1989, Settlement Agreement, 2 a� 10 together with all its exhibits, a complete copy of which is attached hereto as Exhibit"I", in or( = 11 to properly supplement the Judgment and Orders currently on file herein. LO M 12 3. That the Court should retain jurisdiction over the Parties in the above cause unt E a� 13 the Second Addendum to the July 3, 1989, Settlement Agreement, in the covenants contained Q c 14 therein have been fully performed. E 15 4. That, except as expressly modified by the Second Addendum to the July 3, 1985 Cn 16 Settlement Agreement, all Judgments and Orders currently in effect should remain in full force rn 17 and effect. 0 E 18 5. Each Party represents and warrants that the signatory on behalf of each of them c d 19 authorized to enter into this Stipulation. -a a 20 c 0 21 DAVID W. L U) 22 w c Dated: , 2001 By E 23 Da d. 11 24 Attorneys f r Petitioner, HIGH N HILL' Q HOMEOWNERS ASSOCIATION 25 E 26 27 a 28 'RESHAM,SAVAGE _ NOLAN&TILDEN,LLP -2 600 N.ARROWHEAD AVE. SUITE 300 Stipulation to Approve and Confirm Second Addendum SAN BERNARDINO,CA 92401 to Jul y 3, 1989 Sett lement Agreement and Order Thereon(909)884.217 Packet Pg.228 6:A.a 1 GRESHAM, SAVAGE,NOLAN & TILDEN, LLP 2 Dated: / ,2001 B ` Mark A. Ostoich 4 Attorneys for Real Parties in Interest, o WARNER W. HODGDON and RANCHO L 5 SAN ANDREAS COMPANY,INC. r 6 z 6 LEWIS, D'AMATO, BRISBOIS & R 7 BISGAARD, LLP C A 8 Dated: c , 2001 By: Timothy J. a , Special Counsel for the 9 CITY OF SAN BERNARDINO, COMMON 10 COUNCIL OF THE CITY OF SAN BERNARDINO AND DEVELOPMENT/ 11 ENVIRONMENTAL REVIEW COMMITT] OF THE CITY OF SAN BERNARDINO M 12 E 13 ORDER a c 0 14 GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED AS 15 FOLLOWS: co 16 1. This action is reopened pursuant to the foregoing Stipulation, and the Court 0) 0 17 hereby approves and confirms the Second Addendum to the July 3, 1989, Settlement Agreement E 18 in its entirety and orders the same to supplement the Judgment and Orders currently in effect. c 19 Except as expressly modified, the Judgment and Orders heretofore in effect shall remain in full Q 20 force and effect. o 21 2. This Court shall retain jurisdiction over the Parties in the above-cause until the y 22 Second Addendum to the July 3, 1989, Settlement Agreement, and all of its terms, conditions an m E 23 covenants have been fully performed. 24 Q w 25 a E 26 DATED:-.46 , 2001. A. Rex Victd w A. Rex Victor Q 27 Judge of the Superior Court 28 GRESHAM,SAVAGE -3- NOLAN&TILDEN,LLP 600 N.ARROWHEAD AVE. SUITE 300 Stipulation to Approve and Confirm Second Addendum SAN BERNARDiNO,CA 92401 (909) INO C1 to July 3,1989 Settlement Agreement and Order Thereon P66ket Pg.229 SECOND ADDENDUM TO JULY 3, 1989 HIGHLAND HILLS HOMEOWNERS N SETTLEMENT AGREEMENT Lo APPROVED BY o SUPERIOR COURT JUDGE BEN T.KAYASHIMA z SAN BERNARDINO COUNTY SUPERIOR COURT a CASE NO. 241464 L N Z a c ca a� x ti AMONG Lo THE CITY OF SAN BERNARDINO COMMON COUNCIL OF THE CITY OF SAN BERNARDINO E DEVELOPMENT/ENVIRONMENTAL REVIEW COMMITTEE a OF THE CITY OF SAN BERNARDINO c HIGHLAND HILLS HOMEOWNERS ASSOCIATION E WARNER W. HODGDON AND cn RANCHO SAN ANDREAS COMPANY, INC. o r 0 r E a _ a� a a Q a 0 d w March 26, 2001 _ U f0 r-. r Q r _ d E V R r-. Q Packet P"'230 TABLE OF CONTENTS INTRODUCTION...............................................................................................................1 N O BACKGROUND V- 1 V- 6 z RECITALS ..........................................................................................................................3 Highland Hills Specific Plan....................................................................................3 Q Homeowners Lawsuit 4 N 1989 Settlement Agreement............................ _ First Addendum and Supplement.............................................................................6 Fish and Game Lawsuit and Settlement...................................................................6 Highland Avenue Improvements.............................................................................6 z Intentof Second Addendum....................................................................................7 ti LO co M OPERATIVE PROVISIONS................................ E 1. General Provisions 9 Q ...................................................................................... 1.1 Term....................................................................................................9 = a� 1.2 Assignment or Transfer.......................................................................9 m 1.3 Notices ..............................................................................................10 1.4 Amendment 11 co co 2. Development of The Highland Hills Property................... .............................12 o 2.1 North Plan.........................................................................................12 E 2.2 Timing of Development....................................................................13 2.3 Ordinances, Rules, Regulations and Policies....................................13 d 2.4 Grading Permit, Ministerial Permits and Future Entitlements..........15 'a Q 2.5 City Fees...........................................................................................17 -a 2.6 Cooperation.......................................................................................18 0 2.7 Highland Avenue Improvements......................................................19 N 2.8 Public Financing and Maintenance of Improvements andUtility Services...........................................................................19 c 2.9 Mortgagee and Public Finance Protection........................................19 E 2.10 Notice of Default to Mortgagee and/or Bond Trustee, 0 Right of Mortgagee/Trustee to Cure.................................................20 .2 2.11 1603 Agreements..............................................................................20 2.12 Homeowners Attorneys' Fees...........................................................21 3. Enforcement o r 3.1 Enforceability .. 21 Q 3.2 Cumulative Remedies.......................................................................21 3.3 Attorneys' Fees.................................................................................21 Q Packet Pg. 231 6 A.a 4. Miscellaneous Provisions..................................................................................21 4.1 Inurement..........................................................................................21 4.2 Covenants, Conditions and Restrictions/Covenants of Appreciation......................................................................................22 4.3 Consent, Approval and Other Determinations..................................22 4.4 Entire Agreement..............................................................................23 N 0 4.5 Further Action and Instruments ' 4.6 Governing Law.................................................................................23 0 4.7 Recording .. 23 z 4.8 No Third Party Beneficiaries............................................................23 4.9 Waiver..................................... ...............24 4.10 Partial Invalidity................................................................................24 4.11 Estoppel Certificates.........................................................................24 E 4.12 Captions or Titles.................................................. ......25 4.13 Other Agreements and Documents...................................................25 4.14 Construction........................ ..........................................................25 c' s 4.15 Covenant of Good Faith....................................................................25 ti 4.16 Indemnification................ ....25 co 4.17 Mutual Global and Personal Releases...............................................26 E EXHIBITS d c d E d d a) co a) r- 0 E O C d Q C O U d r C O E t U w+ Q C U E t U lB w a ii Packet Pg.232 SECOND ADDENDUM TO HIGHLAND HILLS HOMEOWNERS SETTLEMENT AGREEMENT Introduction On May 16, 1989, the Common Council of the City of San Bernardino ("Common o LO Council") entered into a Settlement Agreement ("1989 Settlement Agreement") with the Highland Hills Homeowners Association, an unincorporated association ("Homeowners"). The z6 1989 Settlement Agreement settled an action ("Homeowners Lawsuit") filed on January 14, � 1988 in the Superior Court for the County of San Bernardino ("Superior Court") as Case No. Q 241464, by the Homeowners against Highland Hills Properties, a limited partnership ("HHP, a Ltd."); San Gorgonio Land Company , Inc., a California Corporation ("San Gorgonio'); Smith; the City of San Bernardino ("City"); the Common Council; and the Development/Environmental Review Committee of the City ("Development/Environmental Review Committee"). The City of Highland appeared a7nicus curiae. Following the October 17, 1988 Statement of Decision and a, Order of Stipulated Judgment of Superior Court Judge Ben T. Kayashima, the 1989 Settlement Agreement was approved effective July 3, 1989, by Judge Kayashima. The 1989 Settlement t- Agreement was recorded in the Official Records of San Bernardino County ("Official Records") M on July 24, 1989, as Instrument No. 89-267700. , E On February 5, 1993, an Addendum to the 1989 Settlement Agreement ("First Q Addendum") and a Supplement to the First Addendum, both entered into by the Homeowners; w HHP, Ltd.; San Gorgonio; Rancho San Andreas Company, Inc. ("RSA"); and Warner W. d Hodgdon ("Hodgdon"), were approved by Superior Court Judge Dwayne M. Lloyd. N The subject matter of the 1989 Settlement Agreement, the First Addendum and the Supplement is the development of real property'("Highland Hills Property") located within the o municipal limits of the City, consisting of approximately 550 acres and commonly known as E Highland Hills. The East Valley Centre Visualscape, the East Valley North Visualscape and the Forest Creek Greens and Sports Club Resort Visualscape are attached as Exhibit "A" and a incorporated by this reference. The legal description of the Highland Hills Property is attached "a as Exhibit "B" and incorporated by this reference. c 0 Over the years, disputes and differences have arisen regarding the interpretation of y previous agreements and other documents regulating the development of the Highland Hills Property including, without limitation, the 1989 Settlement Agreement, the First Addendum and the Supplement. Those disputes and differences have led to litigation including, without limitation, the Homeowners Lawsuit. The parties intend by this agreement ("Second Addendum") to once and for all clarify the terms and provisions of those previous agreements w and documents including, without limitation, the 1989 Settlement Agreement, the First a Addendum and the Supplement. E Background w a The background of this matter is complicated and covers a period of approximately 18 years. A more detailed background, which has been prepared by RSA from its perspective, is attached as Exhibit "C" and incorporated by this reference. N:\R488\000\SA\Second Addendum-l9—Alternative.doc Racket Pg.233' In 1982, the Common Council enacted Highland Hills Specific Plan 82-1 (defined below), covering the Highland Hills Property. In 1985, the Common Council amended Highland Hills Specific Plan 82-1 by the July 1, 1985 Amendment (defined below), to allow priority construction of low and moderate income multi-family apartment units. In 1985, the San Bernardino County Housing Authority ("Housing Authority") also issued the 1985 Mortgage Revenue Bonds (defined below), which were later increased to $33 million. In 1987, pursuant to 0 the July 1, 1985 Amendment, the City authorized the construction of low and moderate income LO multi-family apartment units on the Highland Hills Property, in a location designated in z° Highland Hills Specific Plan 82-1 for construction of single family units. In 1988, the Z Homeowners legally challenged the City's approval of the low and moderate income multi- Q family apartment units, by filing the Homeowners Lawsuit. All of the foregoing events occurred a during the period that the Highland Hills Property was owned by HHP, Ltd., a limited T partnership consisting of San Gorgonio (William E. Leonard, CEO), Smith and various = individual limited partners. c When the City requested indemnification from HHP, Ltd. regarding the Homeowners Lawsuit, HHP, Ltd. approached Hodgdon about acquiring the Highland Hills Property, assisting HHP, Ltd. in obtaining an extension of the call date under the 1985 Mortgage Revenue Bonds, co indemnifying the City regarding the Homeowners Lawsuit and taking over development of the Highland Hills Property. Hodgdon agreed to assist RSA in acquiring the Highland Hills E Property and undertaking its development and RSA became the successor in interest in the Q Highland Hills Property to HHP Ltd., San Gorgonio, Smith and such individual limited partners . In 1988, as a result of RSA's efforts, the Superior Court entered judgment in favor of the E Respondents in the Homeowners Lawsuit and affirmed the City's 1985 approvals, allowing development of the Highland Hills Property with low and moderate income multi-family Cn apartment units. However, in an effort to resolve the concerns of the Homeowners rn (notwithstanding the fact that, as a result of the Superior Court's Judgment, RSA had the absolute o right to develop the Highland Hills Property with low and moderate income multi-family apartment units), Hodgdon and RSA structured the 1989 Settlement Agreement, which established a plan of development for the Highland Hills Property as a gated residential d community, including a Championship "Links" Range and Course/Resort. Pursuant to the 1989 Settlement Agreement, RSA voluntarily withdrew the City's 1985 approvals (under such approvals, RSA could have immediately commenced construction), at great cost and loss to 0 RSA, and agreed to develop the property pursuant to the North Plan (defined below) and the d South Plan (defined below), including a Championship "Links"Range and Course/Resort. N Pursuant to the 1989 Settlement Agreement, the North Plan was determined to be the preferred plan of development under Highland Hills Specific Plan 82-1 and was ordered by the Superior Court to be grandfathered and incorporated as such into the then pending 1989 General Plan (defined below). Such grandfathering and incorporation occurred by later action of the a Common Council in approving the 1989 General Plan. As a result, Highland Hills Specific Plan 82-1 took precedence over any other provision in the 1989 General Plan, including the E provisions of the Hillside Management Overlay District (defined below). Later in 1989, Save San Bernardino filed suit challenging the Common Council's approval of the 1989 General Plan. a RSA again voluntarily agreed to indemnify the City and to defend the City against the Save San Bernardino suit. As a result of RSA's defense of the City, Save San Bernardino later dismissed its suit. -2- N:\R488\000\SA\Second Addendum-19—AhUnative.doc Packet Pg.234 In 1993, in order to address relevant events following the 1989 Settlement Agreement including, without limitation, (i) the voluntary reduction by RSA of the multi-family component of Highland Hills Specific Plan 82-1, (ii) the construction of the State Route 330 freeway improvements, (iii) adjustments in the North Plan to accommodate the then new East Valley Water District City Creek/Cook Canyon water treatment plant and related facilities ("EVWD Facilities"), and (iv) other events which satisfied mitigation measures in the Highland Hills EIR o (defined below), the First Addendum and the Supplement were approved by the Superior Court. r 6 In 1993, the People (defined below), the State (defined below) and the CDFG (defined Z below) filed the CDFG Action against Hodgdon and RSA, regarding the Highland Hills Property CL and other property then owned by RSA. During the pendency of the CDFG Action, the CDFG Q has (with the concurrence of the City Attorney of the City of San Bernardino) issued three 1603 N Agreements, including the Highland Hills Area N/S ERMP 1603 Agreement(defined below). c Integral to development of the Highland Hills Property pursuant to the North Plan is ZD implementation of the Highland Hills Area North/South Overall Enhanced Resource x Management Plan ("N/S ERMP"), which includes development of a Championship "Links" Range and Course/Resort (involving enhanced City Creek and Cook Canyon streams, new lakes, streams and meandering water features). Implementation of the N/S ERMP would provide enhancements to the environment and would also provide linkage of the City, City of Highland E and County of San Bernardino, designated recreation trails (walking, jogging, bicycle and Q equestrian trails) and act as the east phase of the San Bernardino Regional Water Authority's Lakes and Streams Vision 2020. Included within the North Plan is an alternative design for a E divided, split-level Highland Avenue, mitigating the impacts of development of the Highland Hills Property pursuant to the North Plan, on the historic 1884 Bear Valley/North Fork canal. cn 00 On October 8, 1999, in anticipation of this Second Addendum, RSA, Hodgdon and the °-' City Attorney of the City entered into an Agreement in Principal ("Agreement in Principal"), ° providing for implementation of a plan of development for the Highland Hills Property and E another area within the jurisdictional limits of the City. In addition, one of the purposes of the Agreement in Principal was to confirm the interpretation of the previously approved entitlements included within the North Plan (i.e., 1,316 resort residential dwelling units, 200 senior citizen Q resort townhome residential dwelling units, Championship "Links" Range and Course/Resort o and related facilities) and to facilitate approval of the Project Tentative Map (defined below). Cn Recitals w Highland Hills Specific Plan r A. On December 20, 1982, the Common Council enacted Highland Hills Specific `t Plan 82-1 ("Highland Hills Specific Plan 82-1") and certified the Environmental Impact Report for Highland Hills Specific Plan 82-1 ("Highland Hills EIR"). E U R B. On May 20, 1985, the Common Council authorized the Housing Authority to Q issue $29 million in interim bonds, known as the Highland Hills Multi-Family Mortgage Revenue Bonds ("1985 Mortgage Revenue Bonds"), to finance 581 multi-family low and moderate income units which were planned for development pursuant to Highland Hills Specific -3 - N:\R488\000\SA\Second Addendum-19—Alternative.doc Packet Pg.235 Plan 82-1. On May 1, 1988, the Common Council authorized the Housing Authority to increase of the 1985 Mortgage Revenue Bonds to $33 million. C. On July 1, 1985, the Common Council amended Highland Hills Specific Plan 82- 1 ("July 1, 1985 Amendment"). When the Common Council enacted the July 1, 1985 Amendment, it found that the subject matter of the July 1, 1985 Amendment was within the o scope of the Highland Hills EIR and relied on the Highland Hills EIR as the environmental 0 document for the July 1, 1985 Amendment. Following the July 1, 1985 Amendment, all o references in this Second Addendum to Highland Hills Specific Plan 82-1 shall be deemed to Z mean Highland Hills Specific Plan 82-1, as amended. Q CL D. On June 6, 1987, the State Office of Planning and Research imposed a n moratorium on development within the municipal limits of the City, until an updated City General Plan was prepared and adopted. The moratorium did not restrict development in certain areas of the City, including the area encompassed within Highland Hills Specific Plan 82-1. s E. On December 7, 1987, the Common Council approved CUPS 87-5 and 87-47, Parcel Map 9166 and an Initial Environmental Study-Negative Declaration ("1987 IES-ND"), in n order to implement development of the Highland Hills Property pursuant to Highland Hills co Specific Plan 82-1, including the construction of 581 multi-family residential units. The 1987 IES-ND was prepared because the development which is the subject of CUPS 87-5, 87-47 and a Parcel Map 9166, contemplated the construction of low and moderate income multi-family c apartment units in a location designated for single-family detached units in Highland Hills E Specific Plan 82-1. Homeowners Lawsuit ui rn 00 rn F. On January 14, 1988, the Homeowners filed the Homeowners Lawsuit, seeking a o writ of mandate against the City, the Common Council and the Development/Environmental E Review Committee, as Respondents, and HHP, Ltd., San Gorgonio and Smith, as Real Parties in Interest, based on allegations that CUPS 87-5 and 87-47, Parcel Map 9166 and the 1987 IES-ND were invalid. The City of Highland appeared in the Homeowners Lawsuit as amicus curiae. Q G. On May 23, 1988, the Common Council adopted an Interim Policy Document 0 ("IPD"), to regulate land use within the City, pending the adoption of an updated City General Plan. H. On October 17, 1988, Judge Kayashima issued his Opinion and Statement of E Decision, which (i) declared valid the City's approval of CUPS 87-5 and 87-47, Parcel Map 9166 and the 1987 IES-ND, (ii) exempted the Highland Hills Property and Highland Hills Specific a Plan 82-1, from the requirements of the IPD and (iii) allowed construction to proceed pursuant to Highland Hills Specific Plan 82-1, CUPS 87-5 and 87-47 and Parcel Map 9166. 1989 Settlement Agreement w r a 1. On May 16, 1989, following issuance by Judge Kayashima of his October 17, 1988 Opinion and Statement of Decision, Homeowners, HHP, Ltd., San Gorgonio, Smith, -4- N:\R488\000\SA\Second Addendum-19-Alternative.doc Packet Pg.236- r, Hodgdon, the City, the Common Council, the Development/Environmental Review Committee and RSA entered into the 1989 Settlement Agreement. J. Pursuant to the 1989 Settlement Agreement, the parties agreed, among other things: N (1) That RSA had prepared two plans of development regarding development LO of the Highland Hills Property, known as the RSA Highland Hills North Plan of Development o (with Championship "Links" Range and Course/Resort) ("North Plan") and the RSA Highland z Hills South Plan of Development ("South Plan"), and that the North Plan was the preferred Plan d of Development pursuant to Highland Hills Specific Plan 82-1, and should be grandfathered and O incorporated as such into the pending updated City General Plan ("1989 General Plan"). By its u, terms, the North Plan provided for up to 1,730 dwelling units; (2) That RSA would acquire the Highland Hills Property; (3) That the City acknowledged its prior valid approval of Highland Hills Specific Plan 82-1, CUPS 87-5 and 87-47 (Multi-Family Rental Units) and Parcel Map 9166, Ln exempting Highland Hills Specific Plan 82-1, from the requirements of the IPD; 00, (4) That the RDA (defined below) would be paid $375,000 upon issuance of long-term mortgage revenue bonds; and Q c d (5) That RSA would voluntarily withdraw CUPs 87-5 and 87-47, Parcel Map E 9166 and the 1987 IES-ND, concurrently with (i) the effective date of incorporation of Highland 0 Hills Specific Plan 82-1, into the 1989 General Plan and certification of the Final Environmental M Impact Report ("1989 General Plan EIR") and (ii) approval of the 1989 Settlement Agreement co by Judge Kayashima. 0 E K. On June 2, 1989, the Planning Commission of the City ("Planning Commission") and the Common Council jointly adopted the 1989 General Plan and jointly certified the 1989 c General Plan EIR, which had previously been approved by the State Office of Planning and Q Research. As contemplated in the 1989 Settlement Agreement, the North Plan was incorporated -0 into the 1989 General Plan as the preferred plan of development pursuant to Highland Hills 0 Specific Plan 82-1 (Alternate Plan 3 of Alternative Matrix 3, with 1,730 dwelling units permitted), irrespective of the existence of any other conflicting provisions in the 1989 General ' Plan including, without limitation, the provisions of the Hillside Management Overlay District ("Hillside Management Overlay District") in the 1989 General Plan. The effect of incorporation E of the North Plan into the 1989 General Plan as the preferred plan of development pursuant to Highland Hills Specific Plan 82-1, was to permit the development of the North Plan without any Q further discretionary approval being required other than the Project Tentative Map. Consistent with the foregoing, the 1989 General Plan EIR evaluated as Alternative C, up to 2,000 dwelling units within Highland Hills (this evaluation was recognized by the San Bernardino East Valley Transportation Demand Mode, Technical Appendices, dated December 30, 1996, and by the Y schedule of 2015 socio-economic data of East Valley Traffic Model EVM TAZ, city group and a city zone 732 and 733, which projects up to 2,666 dwelling units and a population of 7,861 in the Highland Hills area). The City's Notice of Determination regarding the 1989 General Plan EIR - 5- N:\R488\000\SA\Second Addendum-l9—Alternative.doc Packet Pg. 237 6.A.a was filed with the County of San Bernardino and the State Office of Planning and Research, effective July 3, 1989, the same date the 1989 Settlement Agreement became effective. First Addendum and Supplement L. On February S, 1993, Judge Lloyd approved the First Addendum and the N Supplement, both of which were entered into among the Homeowners, HHP, Ltd., San LO Gorgonio, Hodgdon and RSA. RSA hereby states that the First Addendum and the Supplement (i) provided for the voluntary reduction by RSA of the multi-family component of Highland Hills Z Specific Plan 82-1, from 1,200 to 566 multi-family dwelling units, (ii) recognized the ongoing Q construction of the State Route 330 freeway improvements and other events which satisfied C mitigation measures in the Highland Hills EIR, (iii) recognized the ongoing construction of the N EVWD Facilities, (iv) more precisely defined the North Plan, and (v) provided for payment of legal fees incurred by the Homeowners in the Homeowners Lawsuit. As a result of the events described in the First Addendum and the Supplement, as well as the Findings, Mitigation Measures and Conditions of Approval, the parties believe that the major mitigation measures 0 provided in the Highland Hills EIR have been satisfied. x r. Ln Fish and Game Lawsuit and Settlement M M. On February 5, 1993, (i)the People of the State of California("People"),represented by the City Attorney of the City of San Bernardino and (ii) the People, the State of California Q ("State") and the California Department of Fish and Game ("CDFG"), represented by the Attorney General of the State of California, filed Case No. SCV01030 in the Superior Court,a civil complaint seeking civil penalties and injunctive relief against RSA and Hodgdon("CDFG Action"). co N. During the pendency of the CDFG Action, the CDFG issued three Section 1603 Agreements, including CDFG 1603 Stream and Lake Alteration Agreement No. 5-060-98 regarding o implementation of Highland Hills Area North/South Overall Enhanced Resource Management Plan E with Championship "Links" Range and Course/Resort ("Highland Hills Area N/S EIZMP 1603 Agreement"). A copy of the Highland Hills Area N/S ERMP 1603 Agreement is attached as Exhibit"D" and incorporated by this reference. O. On January 5, 2001, the parties to the CDFG Action entered into a Stipulation for 0 Entry of Judgment ("Stipulation") in the CDFG Action. Among other things, the Stipulation cn requires the best efforts of the parties to the CDFG Action to complete this Second Addendum and the Project Tentative Map. Pursuant to the Stipulation, RSA has delivered to the Plaintiffs in the CDFG Action an irrevocable letter of credit in the face amount of$175,000, which the Plaintiffs in E the CDFG Action are now holding pending satisfaction of the requirements in the Stipulation. By joint Stipulation of RSA and the Office of the Attorney General, dated March 19, 2001, and Q approved by Order of the Superior Court, the term of the Highland Hills Area N/S ERMP 1603 Agreement was extended to March 12,2008, for implementation of the various phases of the plan of E development for the Highland Hills Property. Highland Avenue Improvements Q P. Pursuant to previous negotiations between the City and the County of San Bernardino, the City agreed to pay 25% of the direct and indirect cost of widening and realigning -6 - NAR488\000\SA\Second Addendum-19—Altemative.doc Packet Pg. 238 portions of Highland Avenue between Boulder Avenue and Orchard Drive, including bridge widening ("Highland Avenue Improvements"); provided, however, that such agreement was not approved by the Common Council and was not executed by the City. A copy of the proposed written agreement between them ("Highland Avenue Agreement") is attached as Exhibit "E" and incorporated by this reference. N O Intent of Second Addendum LO r 6 Q. Subject to the limitations set forth in this Second Addendum, RSA is entitled to Z develop the Highland Hills Property pursuant to the North Plan and all applicable rights and Q entitlements including, without limitation, the rights and entitlements which are more particularly described in Highland Hills Specific Plan 82-1, the Highland Hills EIR, the 1989 General Plan, the N 1989 General Plan EIR, the 1989 Settlement Agreement, the First Addendum, the Supplement, the Highland Hills Area N/S ERMP 1603 Agreement and related documents, all as clarified by this c Second Addendum (the foregoing documents and this Second Addendum are collectively referred to as the "Entitlement(s)". Following approval of the Project Tentative Map, all references to Entitlements shall also be deemed to include the Project Tentative Map). RSA is also entitled under applicable law to include within the development density permitted by the North Plan, up to 200 LO senior citizen (resort) dwelling units for sale to senior citizens ("Senior Citizen (Resort) Dwelling Units"). A detailed description of the North Plan, including the Senior Citizen (Resort) Dwelling E Units, as well as the application RSA has filed with the City to implement approval of the Project Q Tentative Map pursuant to the North Plan, is attached as Exhibit "F" and incorporated by this reference. All references in this Second Addendum to the North Plan shall be deemed to be E references to the North Plan, including such Senior Citizen(Resort)Dwelling Units. a) R. In reliance on the covenants of the City in this Second Addendum, RSA will 00 continue to incur substantial costs in order to implement the Entitlements by development of the Highland Hills Property pursuant to the North Plan. Therefore, by entering into this Second ° Addendum, the Common Council intends to clarify the intent of the Entitlements, to clarify to RSA that the Entitlements are vested and that RSA may develop the Highland Hills Property pursuant to c the North Plan without any further discretionary approvals being required other than as set forth in this Second Addendum. In addition, by entering into this Second Addendum and in order to carry out the intent of the Entitlements, the Common Council also intends to clarify that the o grandfathering of development of the Highland Hills Property pursuant to the North Plan (as provided in the 1989 Settlement Agreement and the 1989 General Plan) means that the Highland N Hills Property may be developed pursuant to the North Plan just as if such development had Y occurred pursuant to the governing ordinances, rules, regulations and policies which existed in 1989. U S. The North Plan will be implemented by Tentative Tract Map No. 15731 ("Project a Tentative Map"), which shall be processed and approved pursuant to this Second Addendum. A c copy of the Project Tentative Map is attached as Exhibit "G-1" and the related Forest Creek E Greens and Sports Club Resort Enhanced Landscaping Plan and details are attached as Exhibit"G- 211 and are incorporated by this reference. From the standpoint of the California Environmental a Quality Act ("CEQA"), the Project Tentative Map is being implemented based upon the analysis contained in the Highland Hills EIR and the 1989 General Plan EIR, pursuant to the authority of -7- N:\R488\000\SA\Second Addendum-19—Aiternative.doc Packet Pg.239 Section 19.79.100 of the Municipal Code of the City ("Municipal Code"), which applied as of 1989 and which provides in part as follows: "B. Residential projects proposed on property having an adopted specific plan for which an Environmental Impact Report (EIR) has been certified, shall not require additional environmental N documentation provided the City Environment Review Committee LO finds: z 1. That the certified EIR is sufficiently detailed in scope CL regarding the proposed project; and d 2. That the project is pursuant to and in conformity with the N specific plan." X c By entering into this Second Addendum, the Common Council on behalf of the City, a, makes the findings enumerated in Clause 1 and Clause 2 of Paragraph B of Section 19.79.100 of = the Municipal Code. ti LO CO In addition, comprehensive studies made since the date of certification of the Highland Hills EIR (which are more particularly described in Section 2.3(c) below) and other information E which is in the public domain, show that no further or different environmental impacts under Q CEQA will be caused by development of the Highland Hills Property pursuant to the North Plan w and, therefore, no subsequent or supplemental environmental impact report is required. All E 0 measures deemed feasible to mitigate any potential significant impacts under CEQA, resulting from development of the Highland Hills Property pursuant to the North Plan including, without Cn limitation, impacts resulting from subdivision of the Highland Hills Property pursuant to the CO Project Tentative Map, have either already been performed or are as set forth in the documents o attached as Exhibit "H-1" and "Exhibit "H-2" and incorporated by this reference. No other E mitigation measures for environmental impacts under CEQA, resulting from development of the Highland Hills Property pursuant to the North Plan, shall be required for development of the Highland Hills Property pursuant to the North Plan. However, the parties agree that nothing in this Second Addendum shall be deemed to limit or reduce in any way the discretion that the -aa Planning Commission has under applicable law in approving the Project Tentative Map. By 0 entering into this Second Addendum, the City and RSA also acknowledge and agree that previous completion of certain major mitigation measures identified in the Highland Hills EIR (including, without limitation, (i) construction of State Route 330 freeway improvements, including the Highland Avenue oruamp/offramp system, Boulder Avenue widening and E signalization, City Creek bridge, rock slope protection improvements in the City Creek stream course and the Cook Canyon spillway, and (ii) construction of the EVWD Facilities), further support the finding that no further or different environmental impacts under CEQA will be caused by development of the Highland Hills Property pursuant to the North Plan, as compared to development of the Highland Hills Property pursuant to Highland Hills Specific Plan 82-1. w T. By entering into this Second Addendum, the Common Council intends to clarify a that the Entitlements are the governing ordinances, rules, regulations and policies for the development and continued use of the Highland Hills Property pursuant to the North Plan, - s- NAR488\000\SA\Second Addendum-l9—Altemative.doc Packet Pg.240 6:A:a without the necessity of obtaining any other discretionary approval other than the Project Tentative Map and any permit other than the Ministerial Permits (defined below). Operative ]Provisions In view of the mutual promises and covenants of the City and RSA, and for other good and o valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and to RSA agree as set forth below. o z 1. General Provisions af°i CL 1.1 Term. z The provisions of this Second Addendum shall apply to development of the = Highland Hills Property pursuant to the North Plan, for a period ("Term") commencing on the date that this Second Addendum has been executed by all parties and approved by order of the Superior Court ("Effective Date")and continuing thereafter for a period of twenty (20)years or longer, at the election of RSA, to coincide with the term of the last series of public or private improvement bonds LO or mort gage revenue bonds or other taxable and/or tax exempt obligations issued and sold through co any public entity or non-profit corporation, to implement the North Plan or any portion thereof, or E the term of any special assessment and/or public facilities district formed for the purposes of a financing any improvements, facilities or public services associated with the North Plan, pursuant to Paragraphs 2.8(a), 2.8(b),2.9 and 2.10 below. The Term may also be extended by mutual consent E of the City and RSA. d (a) Following expiration of the Term,this Second Addendum shall be of no further force and effect, except for any provisions which by their express terms or by practical V_ necessity must survive the expiration of this Second Addendum in order to implement the ° performance of rights, duties or obligations which arose prior to expiration of the Term. E (b) Notwithstanding any other provision in this Second Addendum, -a unless ordered by a Court of competent jurisdiction, no total or partial termination of this Second Q Addendum shall act to (i)cancel, limit or alter, in any way, any of the Entitlements (ii) cancel, limit o or alter, in any way, the Project Tentative Map or any Future Entitlement (as defined below), (iii) d adversely affect the status or use of the Highland Hills Property or any portion thereof, pursuant to `n the North Plan, as a legal conforming use, or (iv) adversely affect the status of any improvements within the Highland Hills Property as legal conforming structures. E 1.2 Assignment or Transfer. w r (a) RSA shall have the right, without the consent or approval of the City, to sell, assign or otherwise transfer the Highland Hills Property, or any right or interest therein (including,without limitation, sales, assignments or transfers in connection with financing regarding the Highland Hills Properly or any portion thereof), in whole or in part, to any person, partnership, r joint venture, firm or corporation, at any time and from time to time; provided, however, that any a such sale, assignment or transfer shall include, to the extent applicable, the assignment and assumption of all specific rights, duties and obligations arising pursuant to the Entitlements or -9- N:\R488\000\SA\Second Addendum-r9—Altemative.doc Packet Pg.241. portion thereof or right or interest therein being sold, assigned or transferred. Upon the assumption of any or all of the duties and obligations of RSA pursuant to the Entitlements by such purchaser, assignee or transferee of the Highland Hills Property or any portion thereof, or any interest therein ("Successor(s)"), RSA shall be relieved of its legal duty to perform such duties and obligations pursuant to the Entitlements, except to the extent that RSA is in default of the duty or obligation being sold, assigned or otherwise transferred as of the time of assignment and assumption. Any and o all Successors of RSA shall have all of the same benefits, rights, duties and obligations of RSA r pursuant to the Entitlements which are sold or transferred and, thereafter, as to the right or interest o being sold, assigned or transferred, all references to RSA shall be deemed to refer to the applicable z Successor. CL (b) RSA shall give written notice to the City, within a reasonable time _N after the closing of any sale, assignment or other transfer of the whole or any portion of or any interest in the Highland Hills Property, specifying the name of the Successor, the Successor's mailing address, the amount and location of the land or interest sold, assigned or otherwise transferred, the specific rights and/or duties and/or obligations pursuant to the Entitlements, which have been sold, assigned or otherwise transferred, and the name and address of a single person or entity to whom any notice pursuant to the Entitlements shall be given. M (c) Without limiting the effect of the foregoing, the Highland Hills Property may be subdivided after the Effective Date and one or more of such subdivided parcels a may be sold, assigned or transferred to Successors, for construction of phase(s) of development of the Highland Hills Property pursuant to the North Plan. Noncompliance by any such Successor E with the Entitlements shall not be deemed to be a default by any other person then owning or holding any interest in any other portion of the Highland Hills Property and not itself in default. Cn Portions of the Highland Hills Property may be further subdivided into individual lots or 0) condominiums for sale to members of the general public. Upon conveyance to a member of the a) general public of any such lot or condominium pursuant to a final subdivision public report issued ° by the California Department of Real Estate, the 1989 Agreement, the First Addendum, the Supplement and this Second Addendum shall be deemed automatically and without further c documentation, terminated as to such individual lot or condominium and shall thereafter no longer 2 constitute an exception to the title of such individual lot or condominium (subject, however, to the a provisions of this Second Addendum which survive expiration or termination including, without o limitation, the provisions of paragraphs 1.1(a) and 1.1.(b) above). Notwithstanding the foregoing, the City shall, upon written request of RSA or the owner of such lot or condominium, execute such N documentation as may be reasonably required to confirm such termination on the public records. w c 1.3 Notices. E U All notices, demands, requests, elections, approvals, disapprovals, consents Q or other correspondence and communications between the City and RSA regarding the Entitlements ("Notice(s)") shall be in writing and shall be given by personal delivery,mail or electronic facsimile E transmission. Notice by personal delivery shall be deemed given upon the delivery of such Notice to the party for which it is intended, at the address set forth below. Notice by mail shall be deemed Q given 2 business days after depositing such Notice postage prepaid, registered or certified, return receipt requested, properly sealed with the United States Postal Service, addressed as set forth below,regardless of whether or when the Notice is actually received. Notice by electronic facsimile - 10- NAR488\000\SA\Second Addendum-l9—Alternative.doc Packet Pg.242 transmission shall be deemed given upon the transmission of the electronic facsimile transmission. Notice shall be directed to the party to whom it is intended at the address set forth below: To the City: City of San Bernardino 300 North"D"Street San Bernardino, California 92418 N Attn: City Administrator and Director of Development Services 9 r With a Copy To: City of San Bernardino z° 300 N. "D" Street San Bernardino, California 92418 a Attn: James F. Penman,Esq., City Attorney < I — 'x To RSA: Rancho San Andreas Company,Inc. P.O. Box 2146 San Bernardino, California 92406 9 Attn: Mr. Aaron W. Hodgdon x ti LO With Copies To: Dzida, Carey&Steinman co 2 Park Plaza, Suite 1140 Irvine, California 92614 Q Attn: Steven J. Dzida, Esq. _ ° E -and- d Cn Gresham, Savage,Nolan& Tilden, LLP 0) 600 N. Arrowhead Avenue, Suite 300 San Bernardino, California 92401 ° 0 Attn: Mark A. Ostoich, Esq. E Either the City or RSA may change its mailing address or the person to whom Notices are to be sent at any time by giving written Notice of such change to the other party in the manner provided Q herein. _ 0 1.4 Amendment. cn Except as otherwise provided in this paragraph 1.4,no amendment or waiver of any term or provision in this Second Addendum shall be binding on the City unless and until it E has been approved by the Common Council, or on RSA unless and until it has been executed by o RSA. Y a Without limiting the effect of the foregoing, the City and RSA acknowledge E that the passage of time may demonstrate that modifications are necessary or appropriate regarding 0 the details of each party's performance pursuant to the Entitlements. Because the City and RSA 2 wish to retain flexibility regarding the details of their performance, they agree that, under the circumstances described below, minor modifications to the Entitlements may be effectuated through - 11 - NAR488\000\SA\Second Addendum-l9—Alternative.doc Packef Pg.243 6Aa operating memoranda which are approved by the Director of Development Services, or the holder of any successor position("Director"). Minor modifications ("Minor Modification(s)") shall be deemed to be modifications which are requested by RSA from time to time and which result in development which is equal to or less intense from the standpoint of enviromnental impacts under CEQA, than o development of the Highland Hills Property pursuant to the North Plan including, without In limitation, (a) fewer residential dwelling units, (b)less gross leasable commercial space, (c) changes d in improvement locations which are equal to or less intrusive than the location of improvements z under the North Plan, (d) enhancement of architectural, landscape and hardscape improvements, (e) Q more efficient mitigation measures/conditions of approval resulting from advancement in scientific a knowledge, know how or improved technology, or (f) other modifications which the Director _N determines are similar to the foregoing, or any combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the c modification is equal to or less intense from the standpoint of environmental impacts under CEQA, g than development of the Highland Hills Property pursuant to the North Plan). P x In addition, a Minor Modification shall be deemed to be any modification co resulting from a decision by the Director in any other case where the Director is authorized in this Second Addendum to act; provided, however, that nothing in this Second Addendum shall be E deemed to authorize the Director to act where state law requires the City Engineer to act. In those Q cases, the City Engineer shall act in accordance with the applicable provisions in this Second c Addendum. Any modification in the North Plan which the Director determines does not qualify as E a Minor Modification, shall be referred by the Director to the Planning Commission and all decisions of the Planning Commission in response to any such referral shall be appealable to the cn Common Council in accordance with the provisions of the Municipal Code which are in effect at o the time of the appeal. In addition, all other decisions of the Director shall also be appealable to the Planning Commission,in accordance with the provisions of the Municipal Code which are in effect at the time of the appeal. If the applicable decision maker determines that a modification in the North Plan is a Minor Modification, then the decision maker shall be obligated to approve the Minor Modification in the North Plan. -� a 2. Development of The Highland Hills Property. _ 0 U 2.1 North Plan. (n Provided that the RSA elects to do so, and not otherwise,the Highland Hills Property may be developed pursuant to the North Plan. The City and RSA agree that RSA has the E vested right to develop the Highland Hills Property pursuant to the North Plan, based on the Entitlements and that development of the Highland Hills Property shall not require any additional Q discretionary approval other than the Project Tentative Map contemplated to be approved pursuant to this Second Addendum, and shall not be subject to any other limitation regarding development. E The City and RSA agree that the 1989 General Plan exempts the Highland Hills Property from any limitation in the Hillside Management Overlay District and that nothing contained in this Second a Addendum shall be deemed to affect in any way the exempt status of the Highland Hills Property. - 12- N:\R488\000\SA\Second Addendum-19—Alternative.doc Packet Pg.244 6 A aP 2.2 Timing of Development. RSA agrees to develop a golf course concurrently with the initial phase of development of the Highland Hills Property; provided, however, that at the election of RSA, the golf course and driving range may be located either in whole or in part within the Highland Hills Property. A copy of the North/South Alternative Championship "Links" Range and Course o Enhanced Landscape Plans are attached as Exhibit "I" and incorporated by this reference. In LO addition, RSA agrees to develop the Highland Hills Property pursuant to the phasing schedule set o forth in Exhibit"F"; provided, however, that nothing contained in this Second Addendum shall be Z deemed to limit RSA's ability to concurrently develop multiple phases. Without limiting the effect Q of the foregoing, RSA agrees that the City shall not be required to issue permits for construction of Q the multi-family units in Phase 2 until (a) RSA has obtained permits for construction of the golf 2 course, (b) construction of the golf course has commenced and (c) construction plans for single- 3: family units fronting the golf course (on Road A) in Phase 2, have been filed by RSA with the City for plan check by the City. Notwithstanding the foregoing, RSA shall have the right to have construction plans for single-family units in Phase 2 and for multi-family units in Phase 2 checked by the City at any time. ti 00 2.3 Ordinances,Rules,Regulations and Policies. Y E (a) Except for uniform codes such as the California Building Standards a Code, also known as the Uniform Building Code, the National Electrical Code, the Unifoml c Mechanical Code, the International Plumbing Code, the Uniform Fire Code and other uniform E codes, as such uniform codes may be amended by the City and incorporated from time to time into the Municipal Code ("Uniform Code(s)"), the ordinances, rules, regulations and policies governing c� development and use of the Highland Hills Property pursuant to the North Plan, shall be those co governing ordinances, rules, regulations and policies in effect as of July 3, 1989 including, without T_ limitation, those governing ordinances, rules, regulations and policies in effect as of July 3, 1989 ° (the date of approval of the 1989 Settlement Agreement) and applicable to development and/or construction related fees payable to the City ("Applicable Ordinance(s)"), unless the Applicable Ordinances are more restrictive or require a higher level of performance than the governing ordinances, rules, regulations and policies of the City in effect at the time that any determination is Q required, in which case the less restrictive governing ordinance, rule, regulation or policy shall o apply. Without limiting the effect of the foregoing, attached as Exhibit "J" and incorporated by this reference, are certified copies of (i) Title 18 of the Municipal Code and Title 19 of the u) Municipal Code, which were in effect as of July 3, 1989, (ii) Resolution Nos. 88-114, 88-140, 89- w 471 and 89-510, which the City and RSA agree are applicable to development of the Highland Hills Q Property, and (iii) that certain schedule entitled "City of San Bernardino Planning Department Application Fees and Account Numbers", that certain schedule entitled "City of San Bernardino Building and Safety Department Checklist and Permit Fee Schedule", that certain schedule entitled Q "City of San Bernardino Public Works Department Engineering Fee Schedule", that certain "Summary of City of San Bernardino Commercial and Industrial Building Permit and Fee E Schedule" and that certain schedule entitled "City of San Bernardino Water Department and East Valley Water District Water and Service Sewer Rates", which the City and RSA agree are a applicable to development of the Highland Hills Property, all of which are deemed to be Applicable Ordinances. The Uniform Codes governing development of the Highland Hills Property shall be those Uniform Codes in effect as of the date of issuance of each applicable construction permit. - 13 - NAR488\000\SA\Second Addendum-l9—Altemative.doe Packet Pg.245 6Aa Nothing contained in this Second Addendum is intended to bind EVWD or the require the City or the RDA to reimburse RSA for EVWD fees, but only to limit the City component of any EVWD fee to the amount it would have been as of July 3, 1989. (b) If any provision of the Entitlements appears to be in conflict with the Applicable Ordinances, then the conflicting provisions shall be construed to be consistent to the o greatest extent possible; provided, however, that if the conflicting provisions cannot be so LO construed,then the conflicting provision in the Applicable Ordinances shall supersede and control. o z (c) The parties acknowledge and agree that (i) all of the studies, reports a and other factual bases for approval of the Entitlements and the Project Tentative Map including, CL CL without limitation, (A)that certain Rancho San Andreas Highland Hills North Plan of Development N (Forest Creek Greens and Sports Club Resort) Traffic Impact Analysis, prepared by LSA iF Associates, Inc. and dated August 17, 1999, (B) that certain RSA Highland Hills Area North/South Overall Enhanced Resource Management Plan, Environmental Resource Systems Recreation, Reclamation and Water Resources Treatment Facilities Report, prepared by W.J. McKeever T Engineering and dated March, 1996—March, 1999 and (C) other applicable reports, a complete list of which is set forth in the schedule attached as Exhibit "K" and incorporated by this reference to ("Technical Reports"), and (ii) all of the findings, mitigation measures and conditions of approval ("Finding(s), Mitigation Measure(s) and Condition(s) of Approval") set forth in Exhibit "11-1" E (Environmental Findings and Mitigation Measures) and Exhibit "11-2" (Conditions of Q Approval), are collectively deemed to be legally adequate to support the validity of the c Entitlements and the Project Tentative Map. However, the parties agree that nothing in this Second E 0 Addendum shall be deemed to limit or reduce in any way the discretion that the Planning Commission has under applicable law in approving the Project Tentative Map. The City and RSA u� acknowledge and agree that the Technical Reports and the Findings, Mitigation Measures and co Conditions of Approval shall be applied to development of the Highland Hills Property on a phased 0) basis, according to the phases of development of the Highland Hills Property elected by RSA. If ° any provision in this Second Addendum appears to be in conflict with any provision in the Findings, Mitigation Measures and Conditions of Approval, then the conflicting provisions shall be construed to be consistent to the greatest extent possible; provided, however, that if the conflicting provisions cannot be so construed, then the conflicting provision in this Second Addendum shall supersede and control. The City and RSA also acknowledge and agree that RSA o may elect to update some or all of the Technical Reports from time to time, including updating to reflect modified recommendations mmenda ' bons for mitigation measures/conditions g ions of approval resulting from , advancements in scientific knowledge, know how or improved technology. In the event any w Technical Report is updated by RSA following the Effective Date, RSA shall submit the updated Technical Report to the Director,who shall cause the same to be reviewed and approved pursuant to the following provisions: w Q (i) Any Technical Report which identifies environmental c impacts under CEQA which are equal to or less than the environmental impacts under CEQA E resulting from development of the Highland Hills Property pursuant to the North Plan, shall be approved by the Director and such approval shall be deemed to be a Minor Modification pursuant to Q paragraph 1.4 above; and - 14- NAR488\000\SA\Second Addendum-l9—Altemative.doc Packet Pg. 246 6.A.a (ii) If any Technical Report identifies environmental impacts under CEQA which are greater than the environmental impacts under CEQA resulting from development of the Highland Hills Property pursuant to the North Plan, RSA and the Director shall negotiate diligently and in good faith for mitigation which is appropriate to mitigate those environmental impacts under CEQA, to a level where they are equal to or less than the environmental impacts under CEQA resulting from development of the Highland Hills Property N pursuant to the North Plan and, on reaching agreement regarding implementation of mitigation in LO connection with development of the Highland Hills Property, the Director shall approve such Technical Report as a Minor Modification pursuant to paragraph 1.4 above. Z Nothing contained in this Second Addendum shall be deemed to C authorize the Director to act where state law requires the City Engineer to act. In those cases, the N City Engineer shall act in accordance with the applicable provisions in this Second Addendum. Original copies of the Technical Reports are on file with the City. c (d) From and after the Effective Date, if any of the improvements within ai the Highland Hills Property are totally or partially destroyed, RSA shall have the right to rebuild E those improvements in accordance with the provisions of the Entitlements; provided, however, that � if any provision of the Entitlements is more restrictive or requires a higher level of performance than M the applicable provision in the Municipal Code in effect as of the time of the rebuilding, the less .� restrictive provision in the Municipal Code shall govern such rebuilding. E Q 2.4 Grading Permit,Ministerial Permits and Future Entitlements. a E m (a) Approval of the Project Tentative Map shall, among other things, permit RSA to (i) apply for and obtain, based solely upon ministerial review by the City, approval rn of one or more final tract maps or one or more overlay condominium maps, pursuant to final maps rn which are filed with the City from time to time and (ii) apply for and obtain, based solely upon o ministerial review by the City, one or more grading permits pursuant to plans and specifications E which are filed with the City from time to time, all without any condition other than any Finding, Mitigation Measure and Condition of Approval which is applicable to the phase of development being implemented by RSA. At the time RSA applies for construction permits for any phase of multi-family units, RSA shall also file all overlay condominium maps related to any applicable conversion of such multi-family units to condominiums pursuant to paragraph 4.2(a)below, for map 0 checking by the City Engineer; provided, however, that such overlay condominium maps shall be retained by the City Engineer and not recorded in the Official Records until the time of conversion, upon direction by RSA. It is RSA's intent to convert such multi-family units to condominiums at the end of the rental period required by the applicable bonds. Except as provided in the E immediately preceding sentence and without limiting RSA's right to apply for Minor Modifications pursuant to paragraph 1.4 above or Future Entitlements (defined below), the only City permits Q which shall be required for implementation of the development and continued use of the Highland Hills Property pursuant to the North Plan, shall be the following ministerial permits ("Ministerial Permit(s)"): E (A) Each time that a grading plan and specifications for grading a of all or any portion of the Highland Hills Property pursuant to the North Plan, meeting the requirements of the applicable Uniform Code, are filed with the City, the City shall issue a - 15 - N:\R488\000\SA\Second Addendum-l9—Alternative.doc Packet Pg.247 6.A.a ministerial grading permit pursuant to the applicable Uniform Code, without further review or exercise of discretion by the City. (B) Each time that architectural plans, site plans, floor plans, internal building and parking circulation and construction design details, landscaping and signage plans ("Final Design Details") for all or any phase of development of the Highland Hills Property o pursuant to the North Plan, meeting the requirements of the applicable Uniform Codes, are filed L6 with the City, then the City shall issue ministerial construction permits pursuant to the applicable Uniform Codes, without further review or exercise of discretion by the City. z a� (C) The parties intend that approval of the Project Tentative Map C shall suffice to permit the subdivision of the Highland Hills Property, without further review or exercise of discretion by the City, by recordation of one or more final maps or, subject to the provisions of paragraph 4.2(a) below, one or more overlay condominium maps, in the Official 0 Records, at any time and from time to time during the Term, in such a manner as to implement the North Plan including, without limitation, the ultimate subdivision into condominiums of the portions of the Highland Hills Property which shall be improved with multi-family residential units, and that no further tentative tract map shall be required for the same. The parties intend that the in Project Tentative Map shall approve for subdivision into condominiums, in whole or in part, all 0 those lots designated for multi-family residential units and that, so long as the overall number of multi-family residential units approved for the Highland Hills Property, is not increased, the d increase or decrease of the number of such units to be developed on any individual lot in the = Highland Hills Property shall be deemed a Minor Modification which the Director shall be E obligated to approve pursuant to paragraph 1.4 above. Notwithstanding anything to the contrary 2 contained in this Second Addendum, the City and RSA agree that in no event shall RSA have the in right to develop multi-family residential rental units within the Highland Hills Property in excess of 0) 566 units and RSA agrees to waive any form of density bonus for additional multi-family residential T_ rental units,unless specifically agreed to by the City in its sole discretion. o E (D) At RSA's request from time to time, the City shall issue certificates of occupancy or equivalent permits regarding the occupancy of improvements at the Highland Hills Property, without further review or exercise of discretion by the City,pursuant to the Q City's ordinances,rules,regulations and policies governing the issuance of certificates of occupancy = or equivalent pen-nits throughout the City,in effect as of July 3, 1989. (E) Without limiting the effect of any other provision in this Second Addendum, in applying the Findings, Mitigation Measures and Conditions of Approval to any phase of development of the Highland Hills Property, the City shall apply to that phase of E development only those Findings, Mitigation Measures and Conditions of Approval which are applicable to that phase of development, as determined by the Director. Q w (b) Following submittal by RSA of plans and specifications referred to in paragraphs 2.4(a)(A) and (a)(B) above, to the appropriate department of the City, such department shall refer such plans and specifications to the Development Services Department of the w City for administrative confirmation by the Director or his designee, that such plans and a specifications are consistent with the North Plan. In addition, the City and RSA acknowledge and agree that the Director or his designee shall have both the discretion and the obligation to - 16 - NAR488\000 MSecond Addendum-l9—Altemative.doc Packet Pg.248 administratively confirm that any plans and specifications referred to in paragraphs 2.4(a)(A) and (a)(B)above are consistent with the North Plan,if they reflect development which is equal to or less intense than development of the Highland Hills Property pursuant to the North Plan, but are otherwise consistent with the North Plan. (c) .Although, following the date of approval by the City of the Project Tentative Map, the only City permits which shall be required for development and continued use of t Lo he Highland Hills Property pursuant to the North Plan, shall be the Ministerial Permits, RSA shall r nevertheless have the right to request any modification of the Entitlements which RSA determines it z requires for the future development of the Highland Hills Property or any portion thereof and which the City and RSA reasonably determine is not within the scope of the North Plan ("Future C Entitlement(s)") and, in that event, the City shall process and consider any such request for Future Entitlement pursuant to the applicable provisions of the Municipal Code regarding processing and s issuance of a Development Permit Type II. Without limiting the generality of the foregoing, the -0 City shall impose only conditions upon Future Entitlements which are consistent with the 2 Entitlements. Each application for any Future Entitlement, which is consistent with the terms and 9 provisions in the Entitlements, shall be approved by the City. Notwithstanding anything to the contrary contained in this Second Addendum, the City and RSA agree that in no event shall RSA LO have the right to develop multi-fainily residential rental units within the Highland Hills Property co in excess of 566 units and RSA agrees to waive any form of density bonus for additional multi- family residential rental units, unless specifically agreed to by the City in its sole discretion. Q (d) At RSA's request from time to time the City shall accept applications for and diligently process in accordance with this Second Addendum, any Ministerial Permit and any Future Entitlement which may be requested by RSA, and shall make all required N inspections. The City shall cooperate with RSA in providing expeditious review in connection with a) any Ministerial Permit or any Future Entitlement and, upon request and payment of any costs and/or 0) extra fees associated therewith by RSA, the City shall assign planner(s), building inspector(s), and/or other staff personnel as may be necessary to ensure the timely processing and consideration E of the application. Without limiting the generality of the foregoing,the City shall use its best efforts = to notify RSA in writing of any proposed conditions of the City's issuance or approval of any Future Entitlement, at least 10 days before the date on which the City otherwise intends to take action on Q the same. -a C 0 U 2.5 City Fees. Subject to RSA's right set forth in paragraph 2.2 above, to develop the Highland Hills Property in as many phases and according to such sequence as RSA elects, and s subject to the agreement of the City to use its best efforts to phase the payment of fees imposed by the City from time to time,in a manner which is consistent with the phasing and sequence of RSA's development of the Highland Hills Property, all fees imposed by the City from time to time regarding development or construction within the Highland Hills Property including, without limitation and as applicable, application fees, plan check fees, construction permit fees, inspection fees, utility hookup fees, public facilities fees and other development impact fees or development linkage fees, shall be as set forth in the Applicable Ordinances. Notwithstanding the foregoing, if a RSA provides any private utility services to the Highland Hills Property or any portion thereof pursuant to paragraph 2.8 below, development of the Highland Hills Property shall be exempt from - 17- NA\R488\000\SA\Second Addendum-l9—Altemative.doc Packet Pg.249 � Xa impact fees which would otherwise be applicable if RSA were not providing those private utility services. 2.6 Cooperation. Without limiting the effect of paragraph 2.8 below, the City agrees to support the development of the Highland Hills Property pursuant to the North Plan before any other governmental bodies or entities. In addition, without limiting the generality of the foregoing, at the T request of RSA from time to time,the City shall use its best efforts (but without any cost or expense z° to the City, unless reimbursed by RSA) to assist RSA in obtaining all permits and approvals of a governmental and non-governmental bodies and entities (including, without limitation, the City of Highland and the San Bernardino County Transportation and Flood Control District), which are N necessary for the development or continued use of the Highland Hills Property pursuant to the - North Plan or the South Plan including, without limitation, permits and approvals which are required for the development of the golf course and other improvements contemplated in the South I Plan and permits and approvals which are required regarding the Highland Hills Property for the installation of improvements in Highland Avenue and other streets as required and for the = installation of driveways and utility connections and services such as electrical, gas, water, sewer, LO storm drain, telephone, cable television and other communications services, and other permits and CO approvals which may be issued by governmental bodies and entities. E In addition, at the request of RSA, the City shall consider in good faith supporting RSA in causing any public agency identified by RSA, to include all or a portion of the Highland Hills Property within or exclude all or a portion of the Highland Hills Property from, any E districts, agencies (i.e., improvement districts, maintenance and service districts, Inland Valley N Development Agency, San Bernardino County Flood Control District, San Bernardino Valley a) Municipal Water District, San Bernardino Regional Water Resources Authority, etc.) and political subdivisions (i.e., the County of San Bernardino, State and Federal) for purposes of issuing taxable o and/or tax exempt bonds,other financial structures, and instruments of credit for any lawful purpose E including, without limitation, the funding of infrastructure improvements and facilities, utility facilities, and residential and recreation/open space facilities(including, without limitation,the 1985 -� Mortgage Revenue Bonds). In addition, at the request of RSA from time to time, the City (either < acting directly or through the RDA) shall, subject to all required notices, public hearings and = findings, consider in good faith condemning property for public right of way purposes which is v required for implementation of the North Plan. In addition, at the request of RSA from time to time, the City shall use its c best efforts (but without any cost or expense to the City, unless reimbursed by RSA)to assist RSA E in negotiating with governmental (e.g., Redlands Unified School District and East Valley Water District) and non-governmental bodies and entities regarding any processing fees or charges and Q any development impact fees or development linkage fees which are levied by those governmental or non-governmental bodies or entities. In addition, the parties acknowledge that RSA may be obligated to make payments to third party utility providers to defray the cost of utility extensions to E the Highland Hills Property ty and agree that, at the request of RSA from time to time, the City shall Q process all proceedings with those third party utility providers that may be necessary to implement those utility extensions. Without limiting the effect of the foregoing, the parties acknowledge that N:\R488\000\SA\Second Addendum-r 9—Altemative.doc Packet Pg.250 6:A.a the Entitlements do not bind governmental and non-governmental bodies and entities which are not under the City's control. 2.7 Highland Avenue Improvements. Pursuant to the Highland Avenue Agreement, the City (either itself or through the RDA (as defined below)) agrees to pay 25% of the direct and indirect cost of the o Highland Avenue Improvements; provided, however, that the City's share of such direct and V- indirect cost shall not exceed $125,000. In addition, the City also agrees to use its best efforts to z° cause the County of San Bernardino to agree to pay 25% of the direct and indirect cost of the Highland Avenue Improvements. Q :z 2.8 Public Financing and Maintenance of Improvements and Utility Services. c (a) Without limiting the effect of paragraph 2.6 above, the City shall reasonably cooperate with RSA in the inclusion of the Highland Hills Property or various phases or Z: elements of development of the Highland Hills Property in any community facilities district or ti special assessment and maintenance district, for construction and ongoing maintenance and o operation of municipal services, public improvements and infrastructure regarding the Highland M Hills Property including, without limitation, the golf course and related facilities which are described in the North Plan and the South Plan. Paragraph 2.9 below shall be fully applicable to a any bonds issued by any such district, so long as any improvements and maintenance thereof which are financed by such district are made in good faith and for value. E m (b) Without limiting the effect of paragraph 2.6 above, if RSA elects,the Cn maintenance of public parkways, greenbelts, open space areas and trails throughout the Highland 00 Hills Property may be provided through the establishment of landscape and maintenance districts or other special assessment or community facilities districts. The City shall reasonably cooperate with RSA in the establishment of any such district. E c m c) Without limiting the effect of paragraph 2.6 above, the City shall support RSA in efforts by RSA to obtain approval from any public agency (the City and RSA Q acknowledge and agree that no further approval of the subject matter of this paragraph 2.8(c) is o required from the City or any of its departments), of RSA or any designee of RSA providing private utility services to the Highland Hills Property or any portion thereof including, without limitation, w electrical service, gas service, water service, sewer service, storm drain service, telephone service, cable television service and any other communications service. Notwithstanding the foregoing, CD nothing in this Second Addendum shall be deemed to constitute a waiver by RSA of its right to receive public services to the Highland Hills Property or any portion thereof, which are provided by r public agencies including,without limitation,the City. a 2.9 Mortgagee and Public Finance Protection. E E A breach of any provision of any Entitlement shall not defeat, render invalid, diminish, or impair the lien of any mortgage or mortgage revenue bond including, without Q limitation, any lien which may be applicable under Paragraphs 2.8(a) and 2.8(b) above for public financing or maintenance of improvements made in good faith and for value. - 19- NAR488\000\SA\Second Addendum-l9—Alternative.doc Packet Pg. 251 Without limiting the generality of the foregoing, the City and RSA acknowledge that the 1985 Mortgage Revenue Bonds were issued through a City Inducement Resolution on June 1, 1985, as interim bonds covering the first phase of development pursuant to Highland Hills Specific Plan 82-1. On May 1, 1988, the Highland Hills Bond Indentures and Loan Agreements, implementing multi-family mortgage revenue bonds in the principal amount of $33 million, were amended and approved. The interim bonds were reissued in accordance with the June N 1, 1985 Cooperative Agreement between the San Bernardino Redevelopment Agency("RDA") and t LO he San Bernardino County Housing Authority ("Authority"). The City and RSA agree that the RDA shall be paid $375,000 upon issuance of the full amount of long term bonds referred to above Z or a proportionate amount of such$375,000 fee based upon the principal amount of bonds issued at a any one time, if a lesser principal amount than the $33 million is issued or if multiple series of 0 bonds are issued from time to time. The City shall support any extension required by the Authority. As the various phases of the development of the Highland Hills Property 0 pursuant to the North Plan are implemented, additional series of the 1985 Mortgage Revenue Bonds may be issued including, without limitation, (a) bonds which the RDA may issue on behalf of the City and(b)bonds issued by the Authority. In either event,the RDA, on behalf of the City, shall be paid an inducement fee of I% upon the issuance of each series of long term loan bonds. The City LO Go and RSA agree to reasonably cooperate in the issuance of mortgage revenue bonds, as well as public/private infrastructure bonds including,without limitation, such bonds as may be issued under Paragraphs 2.8(a) and 2.8(b)above for public financing of improvements made in good faith and for ai value and such bonds as may be issued for reimbursement of RSA for the direct and indirect cost of qualifying improvements made in good faith. Notwithstanding any other provision to the contrary in this Second N Addendum, but subject to the limitations of applicable law, RSA shall make good faith efforts to a, cause no fewer than 20% of the residential rental units developed on the Highland Hills Property, to be occupied by individuals having family gross income at or near the highest income level o authorized by applicable law, but in any event at income levels which are not less than 64% of the E median family gross income for the area,with adjustments for family size. I d 2.10 Notice of Default to Mortgagee and/or Bond Trustee, Right of Q Mortgagee/Trustee to Cure. C 0 If the City Clerk of the City timely receives notice from a mortgagee and/or N bond trustee, requesting a copy of any notice of default given RSA pursuant to this Second ' Addendum, the City shall provide a copy of that notice to the mortgagee and/or bond trustee, as c appropriate, within 10 days of sending the notice of default the RSA. The mortgagee and/or bond E trustee shall have the right, but not the obligation,to cure any such default. Y_ 2.11 1603 Agreement. Q c RSA shall comply with all of the terms and conditions of the Highland Hills = Area NIS ERMP 1603 Agreement, to the extent that it is applicable to a particular phase of the development of the Highland Hills Property. Q -20 - N:\R488\000\SA\Second Addendum-l9—Altemative.doe Packet Pg. 252 2.12 Homeowners Attorneys' Fees. On the effective date of this Second Addendum, RSA shall pay on behalf of the Homeowners, legal fees incurred by the Homeowners in the Homeowners Lawsuit, which legal fees are referred to in the 1989 Agreement and in the Supplement, as well as any additional legal fees incurred by the Homeowners in negotiating and executing this Second Addendum. N 0 LO 3. Enforcement. 6 Z 3.1 Enforceability. a� CL The Entitlements shall be enforceable by either the City or RSA, Q notwithstanding any change in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, building regulation or other rule, regulation or policy or development moratorium adopted by the City. s 3.2 Cumulative Remedies. 2 After 30 days and an opportunity to cure, either the City or RSA may o institute action to cure, correct or remedy any default, to enforce any covenant or agreement herein or to enjoin any threatened or attempted violation, including suits for declaratory relief, specific a� performance, relief in the nature or mandamus and actions for damages. All of the remedies a described above shall be cumulative with and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election regarding any other available ID remedy. If any breach cannot reasonably be cured within 30 days, then the breaching party shall be deemed to have timely cured if it immediately commences the cure and diligently prosecutes the N cure to completion within a reasonable time. o rn 3.3 Attorneys' Fees. ° E In any action in any court of competent jurisdiction, brought by either the = City or RSA to enforce any covenant or any of such party's rights or remedies pursuant to the Entitlements including, without limitation, any action for declaratory or equitable relief, the `t prevailing party shall be entitled to recover from the losing party reasonable attorneys' fees and all o other reasonable costs, including, without limitation, witness and expert witness fees, expenses and a disbursements in connection with such proceedings or action, which fees and costs may be awarded N as part of the judgment in the underlying action. The costs, salary and expenses of the City Attorney and members of his office, in connection with that action, shall be considered attorneys' fees and costs under this Section. E U 16 4. Miscellaneous Provisions. Q w 4.1 Inurement. Without limiting the effect of paragraph 1.2 above, the terms and provisions Q of the Entitlements shall be binding upon and shall inure to the benefit of the City and RSA and their respective successors and assigns. -21 - N:\R488\000\SA\Second Addendum-19—Altemative.doc Packet Pg.253 42 Covenants, Conditions and Restrictions/Covenants of Appreciation. a ( ) It is contemplated by the City and RSA that one or more of the lots in the Project Tentative Map may be further subdivided into condominiums in the various phases of development of the Highland Hills Property. While the overlay condominium maps for such phases shall not require discretionary review or approval by the City, unless otherwise required by State N law(but shall be subject to the same review as final tract maps pursuant to paragraph 2.4(a) above, e LO xcept that, at the time RSA applies for construction permits for any phase of multi-family units, r RSA shall also file all overlay condominium maps related to any applicable.conversion of such z multi-family units to condominiums, for map checking by the City Engineer), RSA agrees that such condominium plans shall provide for multi-family unit designs for multi-family units other than C Senior Citizen (Resort) Dwelling Units, of not less than 700 square feet for one-bedroom units, 900 N square feet for two-bedroom units and 1200 square feet for three-bedroom units. In connection with any such further subdivision, the City and RSA recognize that a Homeowners Association shall be c established pursuant to Observation No. 17 of the City's Planning Department regarding Highland M Hills Specific Plan 82-1 and also recognize that such condominiums shall be subject to an 2) applicable Declaration of Covenants, Conditions and Restrictions/Covenants of Appreciation. For reference, a copy of the Table of Contents of the Declaration of Covenants, Conditions and Ln Restrictions/Covenants of Appreciation is attached as Exhibit "L" and incorporated by this reference. For reference, a copy of the Table of Contents for the Homeowners Association By- Laws is attached as Exhibit "M" and incorporated by this reference. The substance of the actual a Declaration of Covenants, Conditions and Restrictions/Covenants of Appreciation and By-Laws shall be drafted at a later time, subject only to such review and approval as may be required by the E California Department of Real Estate. Cn (b) The 1985 Mortgage Revenue Bonds were issued as interim bonds, a) covering the first phase of development pursuant to Highland Hills Specific Plan 82-1. The City a) and RSA acknowledge and agree that, pursuant to regulations allowing the issuance of the 1985 ° Mortgage Revenue Bonds or series of bonds for the various phases of development of the Highland E Hills Property, each phase subject to the 1985 Mortgage Revenue Bonds shall be operated for a ten year period as a multi-family residential rental development (notwithstanding that all such units -0 have been approved for subdivision into condominiums as provided in this Second Addendum); Q provided, however, that this regulatory period applies to the various phases which are covered by c the 1985 Mortgage Revenue Bonds only. After expiration of any such 10-year rental period, such d units may be sold as condominiums without further review or exercise of discretion by the City. It N is RSA's intent to convert such multi-family units to condominiums at the end of the rental period required by the applicable bonds. _ CD E 4.3 Consent,Approval and Other Determinations. r Where the consent, approval or other determination of either the City a (including, without limitation, the Director and the Development/Environmental Review Committee) or RSA is required or necessary pursuant to this Second Addendum, such consent or approval shall not be unreasonably withheld. w Q -22- N:\R488\000\SA\Second Addendum-19—Altemative.doc Packet Pg.254 6 A:a 4.4 Entire Agreement. This Second Addendum and the agreements and documents referred to herein constitute the entire agreement between the City and RSA regarding the subject matter of this Second Addendum. 4.5 Further Actions and Instruments. o LO T The City and RSA shall each support the other to the extent necessary to 6 z bring about the performance of the provisions of this Second Addendum. Upon the request of either the City or RSA, at any time, the other party shall promptly execute, with acknowledgment or CL affidavit if reasonably required, and file or record such required instruments and writings and take Q any actions as may be reasonably necessary under the terms of this Second Addendum, to carry out the intent and to fulfill the provisions of this Second Addendum or to evidence or consummate the M transactions contemplated by this Second Addendum. Without limiting the generality of the foregoing, and in furtherance of RSA's intent to convert multi-family residential rental units to condominiums at the end of the rental period required by the applicable bonds, as set forth in z paragraph 4.2(b) above, if prior to recordation in the Official Records, any approval by the City � Engineer of an overlay condominium map becomes legally stale, as determined by the City °M° Engineer in his reasonable discretion, the City and RSA shall take such actions as may be reasonably necessary under the terms of this Second Addendum, to cause the applicable overlay condominium map to again be checked by the City Engineer, in order to carry out the intent of this a Second Addendum that the overlay condominium map shall be legally capable of being recorded at the end of the rental period related to the applicable multi-family units, as required by the applicable 2 bonds. 4.6 Governing Law. rn This Second Addendum including, without limitation, its existence, validity, E construction and operation, and the respective rights of the City and RSA, shall be determined in � accordance with the laws of the State of California; provided, however that nothing in this d Paragraph 4.6 shall be deemed to limit the effect of the provisions of either the Entitlements or this Second Addendum, which make applicable to the development of the Highland Hills Property ordinances,rules,regulations or policies which no longer exist as of the Effective Date. o I � 4.7 Recording. This Second Addendum shall be recorded in the Official Records. d E 4.8 No Third Party Beneficiaries. w w d This Second Addendum is made and entered into for the sole protection and benefit of the City and RSA and their respective successors and assigns. Except as otherwise E provided in paragraph 1.2 above, no person or entity other than the City and RSA and their respective successors and assigns shall have any rights, duties or obligations under any term or w provision of this Second Addendum. Q -23) - NAR488\000\SA\Second Addendum-19—Altemative.doc Packet Pg.255 ; i 4.9 Waiver. The failure of either the City RSA to seek redress for any violation of any Y Entitlement or any applicable federal or state law, or to insist upon the strict performance of any term or provision of any Entitlement, shall not result in any subsequent act or omission of the same or similar nature (which would have originally constituted a breach of or default pursuant to the o applicable Entitlement) from having the force and effect of an original violation, and such f LO subsequent act or omission may be proceeded against to the fullest extent permitted by that d Entitlement. No term or provision in any Entitlement shall be deemed to have been waived by a Z party,unless the waiver is in writing and signed by such party. Q CL 4.10 Partial Invalidity. N If any term, covenant, condition or provision in any Entitlement is held by a c court of competent jurisdiction or other body with jurisdiction to be invalid, void or unenforceable, f6 the remainder of the provisions thereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. ti ul Without limiting the effect of the foregoing, if any federal or state law which co is enacted or adopted after the Effective Date, or any other action of any govermnental entity which is not under the City's control, prevents or precludes compliance with any term or provision in any Q Entitlement, then that term or provision shall be modified or suspended only to the extent and for the time necessary to achieve compliance with that federal or state law or other governmental action E and the remaining terms and provisions shall continue in full force and effect and the parties shall N negotiate in good faith for such amendments to the applicable Entitlement as may be necessary to 0 Cn achieve its intent, notwithstanding the existence of such federal or state law or other governmental CD action. On the repeal of any such federal or state law or other governmental action or on the a) occurrence of any other circumstance which removes the effect of the same on the applicable o Entitlement,the terms and provisions in that Entitlement shall be automatically restored to their full E original effect and any amendment to that Entitlement which the City and RSA have entered into as a result of any federal or state law or other governmental action, shall automatically terminate. Q 4.11 Estoppel Certificates. 0 At the request of either the City or RSA ("Requesting Party") from time to ) time, the other party ("Certifying Party") shall, within 10 days after such request is deemed given, certify in writing that, to the best of its knowledge, (a) the Entitlements are in full force and effect and are binding obligations (to the extent the applicable Entitlement binds the Certifying Party) of E the Certifying Party, (b)the Entitlements have not been amended or modified, except as is expressly provided in that estoppel certificate and (c) no default in the performance of the Requesting Party's Q obligations pursuant to the Entitlements exists, except as is expressly provided in that estoppel certificate. If the Certifying Party fails to deliver the certificate within the time provided above, it shall be deemed presumed that (1) the Entitlements are in full force and effect and are binding obligations (to the extent the applicable Entitlement binds the Certifying Party) of the Certifying Y Party, (2) the Entitlements have not been amended or modified, and (3) no default in the a performance of the Requesting Party's obligations pursuant to the Entitlements exists. -24- N:\R488\000\SA\Second Addendum-19—Altemative.doc Packet Pg. 256 4.12 Captions or Titles. The captions or titles in this Second Addendum are for convenience of reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning or any of the provisions in this Second Addendum. N O 4.13 Other Agreements and Documents. LO This Second Addendum is not intended to alter the obligations of the parties z pursuant to any other agreements and documents referred to herein; but, is intended only to clarify d CL the terms and provisions of the other Entitlements. CL A 4.14 Construction. E x (a) In all cases, this Second Addendum shall be construed according to v its fair meaning and not strictly for or against either the City or RSA, it being agreed that such a, parties or their agents all have actively participated in the preparation of this Second Addendum. _ Without limiting the generality of the foregoing,the City and RSA acknowledge and agree that the I- City is restricted in its authority to limit its police power by contract and that the limitations in this M Second Addendum are intended to reserve to the City all of its police powers which cannot be so limited. a (b) The City and RSA acknowledge that certain exhibits may be a reductions or redacted versions of scale drawings which are on file with the City and RSA and the m parties agree that such exhibits may be attached to this Second Addendum for convenience only, CD and that in construing this Second Addendum, duplicate scale drawings which are on file with the rn City and with RSA (and each of which bears the initials of a representative of the City and a 00 r representative of RSA) shall supersede and control. o E 4.15 Covenant of Good Faith. c d In exercising their rights and in performing their duties and obligations Q pursuant to this Second Addendum, the City and RSA shall cooperate with one another in good faith, so the intent of this Second Addendum can be attained. 0 aD 4.16 Indemnification In the event that approval of this Second Addendum is legally challenged, a the City shall promptly notify RSA of any claim or action and shall cooperate fully in the defense of the action. Once notified, RSA agrees to defend, indemnify and hold harmless the City, the w Economic Development Agency,their affiliates, and their respective officers, agents and employees a from any claim, action or proceeding against the City, including payment of the costs of the City and EDA in such defense. RSA further agrees to reimburse the City and the Economic t Development Agency for any costs and attorneys' fees which the City or the Economic ca Development Agency may be required by a Court to pay as a result of such action, but such Q participation shall not relieve RSA of its obligations pursuant to this provision. -25 - N:\R488\000\SA\Second Addendum-l9—Altemative.doc Packet Pg.257 6.A.a 4.17 Mutual Global and Personal Releases. Without limiting the effect of any Entitlement or any other agreement or document referred to in this Second Addendum or entered into concurrently with this Second Addendum, the City, the Common Council and the Development/Environmental Review Committee, on the one hand, (collectively for purposes of this paragraph, "Public Party(ies)") and o the Homeowners, Hodgdon and RSA, on the other hand, (collectively for purposes of this LO T paragraph, "Private Part(ies)") for their heirs, assigns, executors, administrators, successors, o representatives, employees, attorneys and agents: (a) fully release the other parties (i.e., the Public z Parties or the Private Parties, as the case may be) from all claims, demands, liens, actions and causes Q of action related to anything which is the subject matter of any dispute or difference referred to in Q this Second Addendum (except for any obligation arising as a result of the Entitlements and Future Entitlements, all of which are expressly excluded from this release), (b) represent and warrant that z (i) no claim or right released herein has previously been assigned to any person or entity not a party (i.e., a Public Party or a Private Party, as the case may be), and (ii) the foregoing release shall be binding upon and effective against any assignees or transferees of such party (i.e., Public Party or Private Party, as the case may be). Without limiting the generality of the foregoing, wherever a releasor holds a judgment against a releasee, the release set forth above shall be deemed to include LO the obligation to immediately file in the applicable court or other forum, an appropriate satisfaction of that judgment. E a� a Regarding any matter being released, it is understood and agreed by and between the parties (i.e., the Public Parties and the Private Parties) that other damages not now E known may develop or be discovered, or other consequences or other results may develop or be discovered, and this Second Addendum is specifically intended to cover and include, and does Cn cover and include, all such future damages or future consequences or results, whether known or 00 unknown, including all rights of action therefore, that the provisions of Section 1542 of the Civil T Code of the State of California are expressly waived by such parties; and that such parties acknowledge that said section provides the following: c "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the a release, which if known by him must have materially affected his o settlement with the debtor." IN WITNESS WHEREOF, the parties have duly executed this Second Addendum as of the day and year first above-written. s U R Y Q [SIGNATURES FOLLOW] E r a -26- NAR488\000\SA\Second Addendum-19—Altemative.doc Packet Pg. 258` 6.A.a DATED: 2001 CITY OF SAN BERNARDINO, COMMON COUNCIL OF THE CITY OF SAN BERNARDINO and DEVELOPMENT/ENVIRONMENTAL REVI W C IGIMITTEOF THE CITY OF o SAN ARDINO LO T By: 1i it alles, Mayor Q 0. a N Z DATED: ``�"�Z- - , 2001 HI HLAND HILLS HOMEOWNERS AS OCIATION m J es E.Nunn,President 0 E a DATED: ' , 2001 , E Warner W. Hodgd E w rn ` ` co DATED: � J,2— , 2001 RANCHO SAN ANDREAS COMPANY, INC. c< By: d Aaron W. Hod don, President a c 0 Ti-E-P-EG lT r %-/I T-�/lL _/' A 7 TT'!lT)A7T A OT A TT' /l C7T1'!1T)T.TT A � A 1:+T17.ZTrJ1\TY�'�11V1L1V t"1�3�1'J.i-Tl� +' TA11G 4PrAr V'T 9- m "QTTL C D V B . w d * Not required due to March 19, 2001 Stipulation in San Bernardino County Superior Court Case No. SCV 01030 0 w a [ADDITIONAL SIGNATURES FOLLOW] -27- NAR488\000\SA\Second Addendum-19—Altemative.doc Packet Pg.259 APPROVED AS TO FORM AND CONTENT DATED: ( , 2001 DAVID W`\CALL, ES :� o 1 6 By Z Davi . Call Q Attorneys for Highland Hills Q Homeowners Association y x c DATED: L , 2001 LEWIS, D'AMATO, BRISBOIS & BISGAARD, LLP U) 00 By: f` E Timothy J. Slid, Special Counsel for the Q City of San Bernardino, Common Council of the City of San Bernardino E andDevelopment/Environmental Review Committee of the City of San N Bernardino 00 0 DATED: 72001 GRESHAM, SAVAGE, E NOLAN&TILDEN, LLP c a� By: Mark A. Ostoich o Attorneys for Rancho San Andreas Company, Inc. c m E U c0 Q r C a) E U t0 Q -28 - NAR488\000\SA\Second Addendum-19—Alternative.doc Packet Pg.'260, 6.A.a N d Lo T 6 Z ca N Q Q N 2 C fC t a1 ti Lo Co M Y E Q Y REGIONAL AND PROJECT SCHEMATIC-EAST VALLEY NORTH PLAID Co T 2 Y C W 4 0 V CD 1 T Y r_ E U fII Y Y Q C d E U 0 t0 Y Y Q EXHIBIT "A" Packet Pg. 261 6.A.a N O LCD T- 6 Z Q Q. Q Z _ 2 Ln 00 Cl) a.� E Q _ d E HIGHLAND HILLS PROPERTY cn co CD 0 r E m Q 0 u 0 c a� E �o a Y _ d E V V Y a EXHIBIT`B" 6.A.a N O Lo T- 6 Z d Q. Q. Q N c cts t ti 00 M r E Q r C DETAILED BACKGROUND OF THE � HIGHLAND BILLS PROJECT 00 T O r E d Q 0 V 0 T r E U R r r Q d r r Q EXHIBIT "C" Packet Pg.263 6.A.a N O r 0 Z CL Q Q N .a C R t S ti U7 00 M E Q' _ N 0 HIGHLAND HILLS AREA N/S ERMP 1603 AGREEMENT a) co r 0 E _ m a 0 m c a� r Q c 0 E Q EXHIBIT"D" Packet Pg.264' 6.A.a N O LO T- 6 Z f4 d Q Q Q N 'O C f6 .0 ti Co M E Q Y Q� E HIGHLAND A VENUE AGREEMENT ,0 N 00 0 Y E 0 Q 0 U C U E s U w e+ Q �i C U U IC a EXHIBIT"E" Packet Pg. 265 6.A.a N 0 Lo T- 6 Z to O CL Q Q N Z .a C t4 Z ti Lo 00 M E O? Q C RANCHO SAN ANTDREAS NORTH PLANT OF DEVELOPMENT � AND CITY OF SAN BERNTARDIN O PLANNING APPLICATION co a) r O E .a C N Q C O U N N r C d s U w Q C O U ci3 Y M/ Q EXHIBIT"F" Packet Pg. 266 N O K> T- 6 Z as N Q. Q N C fC .0 2 ti In 00 M a.r E �I Q C O FOREST CREED. GREEDS AND SPORTS CLUB RESORT ENHANCED LANDSCAPING PLAN AND DETAILS Cn 00 r O E 7 C O .a Q C O U d r C W E s U r.+ Q r-� C N E s u c� r Q EXHIBIT "G-2" Packet Pg. 267 6.A.a N O C Z N Q Q Ln Q G N s ti Co M E O Q C d FINDINGS AND MITIGATI®N MEASURES E Co V- ,2 E C d 'G Q C O v d r Y E U RS r+ w Q r C N E t V fif rr Q EXHIBIT"H-1" Packet Pg. 268' N O Lo T- 6 Z f0 N Q CL Q N Z _ t _L Z ti Lo co M E �I Q a+ _ d CONDITIONS OF APPROVAL - d cn CD co 0 E 'a c a� Q 0 0 m c (D E U fQ Q _ d E t V R a+ Q EXHIBIT "H-2" Packet Pg. 269° 6.A.a N O Lo T- 6 Z cv N Q CL Q N 'II C lC t ti 6o O M E Q RANCHO SAN ANDREAS NORTH/SOUTH � ALT'ERNAT'IVE GOLF COURSE w ENHANCED LANDSCAPING PLANS U) 00 0 E 0 c a� �a Q c 0 U N M r .r C U E U �II w Q 4i a 0 E t U fC w Q EXHIBIT "I" Packet Pg.270 6.A.a N O Lo r O Z d Q O., Q C ro t ti 00 M a-. E TITLE 18 AND TITLE 19 OF THE MUNICIPAL COTE Q (Face Pages Only) AND RESOLUTION NOS. 88-114, 88-140, 89-510, 88-471 v, AND SCHEDULE OF FEES 00 'r- 0 7 C N Q .O C O U d r C N U ro r Q r c m E U ro w r Q EXHIBIT "J" Packet Pg. 271 N O to T- 6 Z CL CL a N .a C _R t ti Lo 00 M a+ E al Q a+ C TECHNICAL REPORTS E (Face Pages Only) a) r O E C U Q C O U C d E t U Q r C d t U R w a EXHIBIT "K" Packet P9' .,2-72 6.A.a N O to r 6 Z d CL CL Q N C tC X17 00 M E Q TABLE OF CONTENTS OF THE DECLARAATION OF COVENANTS, CONDITIONS y AND RESTRICTIONS/COVENANTS OF APPRECIATION v, Co 0 E -a c a� Q c 0 U d r C d E U f0 Q C N E t U fC Q EXHIBIT "L" Packet Pg. 273 i CITY OF SAN BERNARDINO NOTICE OF OFFICIAL ACTION BY THE COMMUNITY DEVELOPMENT DIRECTOR PROJECT Number: Tentative Tract Map No. 15731 0 9 Applicant: Hogan Edgcomb Consulting on behalf of First American Title Insurance o Company,property owner. Z �a Q Description: Minor Modifications to Tentative Tract Map No. 15731 dated August 21, C 2014, and the North Plan for the"Highland Hills Project''dated November y 10, 2014, located east of City Creek and north of Highland Avenue in the Highland Hills Specific Plan land use district. �o s ACTION: Approved by the Community Development Director(See attached Operating Memorandum of Approval, incorporated herein) 00 M Action Date: December 30,2014 Q In accordance with the Second Addendum to the July 3, 1989,Highland Hills Homeowners Settlement Agreement dated March 26,2001,the decision of the Director approving these Minor w Modifications to Tentative Tract Map No. 15731 and the North Plan for the"Highland Hills 0 Project"is final unless a written appeal is filed with the Community Development Department o within 15 days following the date of this action,accompanied by the appeal filing fee of $2,827.44 pursuant to Development Code Section 19.52.100. z° N C N E 12 :3 Mark Persico,AICP,Community Development Director Date .3 c E cc: Case File,Department File,Plan Check o w a Packet Pg. 275 COMMUNITY DEVELOPMENT DEPARTMENT BUILDING•CODE ENFORCEMENT•LAND DEVELOPMENT•PLANNING 300 North"D" Street San Bernardino,CA 92418-0001 38 San Bernar ino 909.384.5071 Faac 909. 4.5155 www.sbcity.org o 8M UC December 30,2014 T- 6 Z Mr. L.J. Edgcomb 1° Q a Hogan Edgcomb Consulting =- a 20201 S.W. Birch Street _N Newport Beach,CA 92660 = �v SUBJECT: Operating Memorandum I� Approval of Minor Modifications to Tentative Tract Map No. 15731 and the y North Plan for the"Highland Hills Project" Ln 00 M Dear Mr. Edgcomb: E _ I write to inform you that your request for Minor Modifications to Tentative Tract Map No. P 15731 dated August 21, 2014, and the North Plan for the "Highland Hills Project" dated E November 10, 2014, have been approved pursuant to Section 1.4 of the Second Addendum to the July 3, 1989, Highland Hills Homeowners Settlement Agreement dated March 26, 2001 = ("Second Addendum"). Section 1.4 permits minor modifications to the Highland Hills Project that result in development which is equal to or less intense than the Tentative Tract Map No. Q 15731 approved by the Planning Commission on April 17, 2001, and the North Plan approved O pursuant to the Second Addendum, from the standpoint of environmental impacts under the California Environmental Quality Act(CfQA). M _ w On April 17, 2001, the Planning Commission approved Tentative Tract Map No. 15731 for the E construction of 1,516 dwelling units, a 1.5 acre commercial parcel, a 67.6 acre golf course, and 6.6 acres of parkland subject to conditions of approval and mitigation measures. Subsequently, Q on July 28, 2014, a request was submitted by Hogan Edgcomb Consulting on behalf of First American Title Insurance Company,the property owner,to modify the Highland Hills project. in summary,the minor modifications include: E 1. Reducing the number of residential dwelling units from 1,516 to 695 units; Q 2. Eliminating all commercially zoned property; 3. Reducing the total grading from approximately 10,000,000 cubic yards to approximately 3,500,000 cubic yards, 4. Reducing impacts to jurisdictional streams from 1.7 acres to 1.3 acres; 1 Packet Pg.276 5. Reducing the impacts to jurisdictional wetlands from 15,887 square feet to 13,321 square feet; 6. Reducing the total projected daily vehicle trips from 12,212 to 5,760;and 7. Eliminating the golf course and installing an engineered flood control system for storm water. I have reviewed the Evaluation of Minor Modifications, September 2014, prepared by Tom Dodson &Associates and the modified project plans consisting of modified Tentative Tract Map N No. 15731, the modified North Plan and the supporting technical reports, as well as the ,° attached updated Mitigation Monitoring and Reporting Program dated December 1, 2014, and o find that the requested Minor Modifications fully comply with Section 1.4 of the Second z Addendum.As noted above, the Minor Modification contains 54%fewer units,reduces grading by 65%, eliminates the commercial uses, and reduces total daily trips by a projected 53%. In Q consultation with the City Engineer, I further find that the engineered storm drain system is a more efficient mitigation measure than the golf course for containing and directing storm water. The Minor Modifications to the project make the project environmentally superior to the project approved by the City of San Bernardino Planning Commission on April 17, 2001 and the North Plan approved for the Highland Hills Project pursuant to the Second Addendum. In addition, the modifications to Tentative Tract Map No. 15731 dated August 21, 2014, reduces the number of parcels, are consistent with Tentative Tract Map No. 15731, approved by the LO Planning Commission on April 17,2001 and are consistent with the Subdivision Map Act and the co n City's Development Code. E Without limiting the effect of any of the foregoing, in approving your request for Minor Modifications to the Tentative Tract Map No. 15731 and the North Plan for The Highland Hills o Project, I hereby adopt and make herein all of the findings contained in the Evaluation of Minor E Modifications, September 2014, prepared by Tom Dodson & Associates. Furthermore, the Environmental Findings and Mitigation Measures(Exhibit H-1 to the Second Addendum)and the c Conditions of Approval (Exhibit H-2 to the Second Addendum) are hereby updated to reflect changes approved through this Minor Modification process.The City hereby determines that the O approval of the Minor Modifications is a ministerial action and is therefore exempt from further environmental review pursuant to Public Resources Code Section 21080(b)(1) and CECIA Guidelines Section 15268 and a Notice of Exemption (NOE) will be filed. Approval of the Minor M Modifications to Tentative Tract Map 15731 and the Modified North Plan is subject to the attached Updated Conditions of Approval and Updated Mitigation and Monitoring Reporting E U Program. ;n Approval of the Minor Modifications to Tentative Tract Map No. 15731 and the North Plan for the "Highland Hills Project" may be appealed to the Planning Commission. Pursuant to E Development Code Section 19.52.100, an appeal must be filed with the Community Development Department within 15 days following the date of this letter and be accompanied 14 by the appeal filing fee of$2,827.44. a Please feel free to contact me at (909) 384-5357 or persico mapEjb ity.org if you have any questions. 2 Packet Pg. 277 Sincerely, Mark Persico,AICP Community Development Director Attachment: c Updated Conditions of Approval,dated December 1,2014 L, 6 cc: Mayor and Common Council(w/o attachments) Z Allen Parker,City Manager(w/o attachments) c° Gary Saenz,City Attorney Q Robert Eisenbeisz,City Engineer Mark Ostoich,Gresham Savage x e �a a� r. LO 00 M E 3 O CSf O E d C :r R L Q. 0 I r M C N E s U R w+ a E r a+ Q 3 Packet Pg. 278 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 0 Updated Conditions of Approval Minor Modifications to Tentative Tract Map No. 15731 (December 1,2014) Planning; Division c� 0 LO 1. The conditions contained herein shall be binding upon the project applicant/developer and any successor in interest. Within ten (10) business days of approval of the Minor Modification, the z applicant shall agree in writing to accept all conditions contained herein. CL CL 2. The Minor Modification allows the subdivision of approximately 544 gross acres into parcels for 695 residential units, parks and other uses described in the Modified Tentative Tract Map No. 15731, dated August 21, 2014, and the Modified North Plan for the Highland Hills Project, dated November 10, 2014.The project modifications also includes an engineered flood control system. a� 3. The approval of the Modification to tentative Tract Map No. 15731 shall expire at the expiration of the Second Addendum to July 3, 1989 Highland Hills Homeowners Settlement Agreement, as approved by order of the San Bernardino County Superior Court("Second Addendum"). M 4. In the event that this approval is legally challenged,the City will promptly notify the applicant of o any claim or action and will cooperate fully in the defense of the matter. Once notified, the Q applicant agrees to defend, indemnify, and hold harmless the City, officers, agents and C 0 employees from any claim, action or proceeding against the City of San Bernardino. The o applicant further agrees to reimburse the City for any costs and attorney's fees which the City may be required by a court to pay as a result of such action, but such participation shall not 0 relieve applicant of his or her obligation under this section. _ 0 U 5. Unless superseded by these Conditions of Approval or applicable state law, approval is subject to all the applicable provisions of Title 18 and Title 19 of the San Bernardino Municipal Code ("Municipal Code") in effect as of July 3, 1989; provided, however,that the most current version of the Model Codes such as the California Building Standards Code, also known as the California Building Code, the California Electric Code, California Plumbing Code, and the California Fire Code and other Model Codes shall be fully applicable to aspects of this project which affect M healthy,safety and welfare. t 6. The project shall be in substantial conformance with the "Modified North Plan for Highland Hills ,a Property" dated November 10, 2014. Q 7. The project shall be in substantial conformance with the Modified Tentative Tract Map 15731 E dated August 21, 2014. 0 r 8. In the event of any inconsistency between these updated conditions of approval, the Highland a Hills Specific Plan 82-1, and the Second Addendum, the Second Addendum shall supersede and control. .10 - 1- Packet Pg.219 Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 9. The applicant shall comply with the "Highland Hills Specific Plan Project Modified North Area Plan Mitigation Monitoring and Reporting Program"dated December 1, 2014 (Exhibit 1). 10. Prior to the issuance of any building permits the applicant shall submit design guidelines for review and approval by the Community Development Director ("Director"). The design guidelines shall address, at a minimum,the following: N a. Building massing and articulation 9 LO b. Colors and materials c. Landscape palette including proposed front yards ° z d. Relief on exterior structure walls e. Integration of varied texture, relief and design accent a f. Varied massing and composition of adjacent homes Q y g. Articulation of building elevations = h. For multi-family development the guidelines shall also include: i. Building facades which give the appearance of a collection of smaller units. ii. Separations, changes in plane and height, and the inclusion of elements such as balconies, porches, arcades,dormers and cross gables are required. ti 11. Single and multi-family residential products shall be reviewed and approved by the Director M prior to each phase of development. 0 PUBLIC WORKS CL o. Q Prior to Final Map Recordation for the Applicable Phase of Development o N C 12. The following shall be submitted to and approved by the City Engineer: ° a. A copy of the Final Map covering the applicable phase of development. b. A copy of the Covenants, Conditions, and Restrictions (CC&R's) covering the applicable U phase of development. i. CC&R's shall be reviewed and approved by the Community Development Director. The CC&R's shall include liability insurance and methods of CL maintaining open space, recreation areas, parking areas, private roads, exterior of all buildings and all landscaped and open areas including parkways. ii. No lot or dwelling unit in the development shall be sold unless a corporation, Y association, property owner's group or similar entity has been formed with the right to assess all properties individually owned or jointly owned which have any rights or interest in the use of the common areas and common facilities in the ;g development, such assessment power to be sufficient to meet the expenses of Q such entity, and with authority to control, and the duty to maintain, all of said mutually available features of the development. Such entity shall operate under E recorded CC&R's which shall include compulsory membership of all owners of lots and/or dwelling units and flexibility of assessments to meet changing costs Q of maintenance, repairs, and services. Recorded CC&R's shall permit enforcement by the City for provisions required as Conditions of Approval. The developer shall submit evidence of compliance with the requirement to, and receive approval of, the City prior to making any such sale. This condition shall not apply to land dedicated to the City for public purposes. -2- Packet,ft.-280 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 iii. Every owner of a dwelling unit or lot shall own as an appurtenance to such dwelling unit or lot, either (1) an undivided interest in the common areas and facilities, or (2) a share in the corporation, or voting membership in an association owning the common areas and facilities. 13. Prior to Final Map approval for the applicable phase of development, the owner or designee N shall pay all applicable subdivision and final map fees, pursuant to the Second Addendum. ° Prior to the Issuance of Permits for Rough Grading and Precise Grading for the Applicable Phase of ° z Development ° a� °. CL 14. Prior to issuance of any grading permits, a soils and geology report shall be prepared by the a a pp licant and approved by the City Engineer. The report shall include specific project T recommendations in accordance with the 2013 California Building Code. _ .a c c� 15. Landscape and irrigation plans for the applicable phase of development shall be submitted for all common open space, slope and streetscape areas within that phase of development, for review and approval by the City Engineer or designee, concurrent with submittal of precise grading plans for that phase of development. Said plans shall be submitted to the City Engineer M or designee for each phase of the development that includes grading. Prior to the Issuance of a Building permit for the Applicable Phase of Development o CL Q 16. Prior to the issuance of a building permit for each phase of development, the owner or designee o shall submit performance securities, in amounts to be determined by the Director or designee, c to guarantee the installation of the plantings within private common areas of that phase, in ° accordance with the approved construction landscape and irrigation plan. The securities shall Ei be filed with the Planning Division until such time as it has been determined by the Director or v designee that the landscaping and irrigation system have been installed and maintained in a condition satisfactory to the Director of designee. 75%of the securities shall be released at final inspection and the balance shall be released after one year of maintenance. a 17. The following shall be submitted to and approved by the City Engineer or designee for each phase of development, at the time of application for the on-site improvement permit: M a. Five (5) copies of Construction Landscaping and Irrigation Plans. The location, number, E genus, species, and container size of the plants shall be shown. The cover page shall identify the total square footage of the landscaped area for the site. The plans shall be ;g w accompanied by the following items: Q i. Appropriate filing fee (pursuance to the Second Addendum). ii. One (1) copy of the approved rough grading plan. E iii. The locations of all existing trees that will be saved consistent with the tentative map. a iv. Plans for automatic irrigation for all landscaped areas and complete screening of all ground mounted equipment from the view of the public from streets and adjacent property for: 1. Front yards and slopes within individual lots, prior to issuance of building permits for any lot(s). -3 - Packet Pg.281 6Ad ' Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 2. Private common areas. 3. Hardscape plans for all trails. v. All ground-mounted utility structures and equipment, including, but not limited to, standpipes, shall be located out of view from a public street and/or adequately screened through the use of walls and/or landscaping, to the extent feasible. N vi. Wall and Fence Plans consistent with the Conceptual Landscape Plans showing 9 the height, location and materials for all walls and fences. b. Precise Grading Plans consistent with the approved rough grading plans including all Z structural setback measurements. "Rii 0. CL 18. Prior to issuance of building permits for the model homes, the owner or designee shall obtain 4 approval from the Director or designee for the model home complex. 19. Prior to the issuance of building permits, the owner or designee shall pay all applicable development fees pursuant to the Second Addendum. x Prior to Final Inspection and/or Occupancy of the Applicable Phase of Development 00 M 20. All required landscape planting and irrigation shall be installed consistent with the approved construction plans and shall be in a condition acceptable to the Director. The plants shall be o healthy and free of weeds, disease, or pests. The irrigation system shall be properly constructed Q. and in good working order. Front yard and slope landscaping within individual lots shall be a completed for inspection. 0 N C 21. Private common area landscaping for each phase shall be completed for inspection prior to 0 issuance of the first occupancy permit. 0 U 22. All of the foregoing conditions shall be complied with prior to occupancy of any use allowed by approval of this project. CL D 23. Drainage and Flood control plans shall be prepared and approved as required below: a. The Preliminary Drainage Plan dated July 25, 2014, shall be finalized and submitted to the City Engineer for review and approval. M w b. All necessary drainage and flood control measures shall be subject to requirements of E the City Engineer, which may be based in part on the recommendations of the San Bernardino County Flood Control District. The developer's Engineer shall furnish all w necessary data relating to drainage and flood control. Q c. A permit will be required from San Bernardino County Department of Transportation and Flood Control if any work is required within the Flood Control District's right-of-way. E d. A hydrology and hydraulics analysis will be required for the project. Any drainage L) improvements, structures or storm drains needed to mitigate downstream impacts or a protect the development shall be designed and constructed at the developer's expense, and right-of-way dedicated as necessary. e. All drainage from the development shall be directed to an approved public drainage facility. If not feasible, proper drainage facilities and easements shall be provided to the satisfaction of the City Engineer. -4- Packet Pg.282' Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 f. If site drainage is to be discharged into the public street,the drainage shall be conveyed through a parkway culvert constructed in accordance with the City Standard No. 400. Conveyance of site drainage over driveway approaches will not be permitted. g. Developer shall mitigate on-site storm water discharge sufficiently to maintain compliance with the City's NPDES Storm Water discharge Permit requirements. A Notice of Intent (NOI) shall be field with the State Water Quality Control Board for N construction disturbing 1 acre or more of land. Prior to any grading permit issuance of a 9 Waste Discharge Identification (WDID) number shall be obtained from the State of 6 California. z h. The City Engineer, prior to grading plan approval, shall approve an Erosion Control Plan. as The plan shall be designed to control erosion due to water and wind, including blowing a dust, during all phases of construction, including graded areas which are not proposed Q to be immediately built upon. _ i. Prior to issuance of any grading permits, the applicant shall obtain final approval from = -a the Director of Community Development, or designee, of the draft Water Quality Management Plan submitted August 21, 2014. x 24. Grading and Landscaping shall be prepared and approved as required below: i. a. If more than 1 foot of fill or 2feet of cut is proposed, the site/plot/grading and drainage M plan shall be signed by a Registered Civil Engineer and a grading permit shall be required. The grading plan shall be prepared in strict accordance with the City's o "Grading Policies and Procedures" and the City's "Standard Drawings", unless otherwise approved by the City Engineer. Q b. If more than 5 trees are to be removed from the site, a ministerial tree removal permit o shall be obtained from the Department of Community Development prior to issuance of c any rough grading permit or on-site improvement permit. ° c. If more than 5,000 cubic yards of earthwork is proposed,a grading bond will be required and the grading shall be supervised in accordance with the 2013 California Building v Code. d d. If more than 1,000 cubic yards of earth is to be hauled on City streets then a ministerial hauling permit shall be obtained from the City Engineer. Additional conditions, such as CL truck route approval, traffic controls, bonding, covering of loads, street cleaning, etc. may be required by the City Engineer. e. A geology report meeting the requirements of the Alquist-Priolo Special Studies Zone Act shall be submitted for review and approval by the City Engineer. m f. An on-site Improvement Plan is required for each phase of this project. Where feasible, these plans shall be incorporated with the precise grading plan for each applicable ;g phase and shall conform to all requirements of the applicable provisions of the Q Municipal Code (See "Grading Policies and Procedures"). c g. One 4 feet X 11 feet PCC pad at least 4" thick shall be provided in the rear or side yard E area of each lot for storage of recycling containers. The pad shall be screened from public view and a 3 feet wide concrete walkway shall be provided from the driveway to Q the pad. All gates along the access way shall have a clear width of 3'-6" minimum. A minimum clearance of 4 feet shall be provided around the pad. Trash and recycling containers may also be within an enclosed garage provided the bins do not encroach 10 into the required parking area. -5- Packet Pg.283 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 h. Retaining walls, block walls and all on-site fencing shall be designed and detailed on the On-Site Improvement Plan for each phase of development. This work shall be part of the On-Site Improvement permit issued by the Community Development Department. i. This project is located in the "High Wind Area". Therefore, all free standing walls and fences shall be designed for a 100 mile per hour wind load. j. The design of on-site improvements shall also comply with all requirements of The 2013 N California Building Standards Code,Title 24, relating to accessibility. ° LO k. A reciprocal easement shall be recorded prior to precise grading plan approval if reciprocal drainage, access, sewer, and/or parking is proposed to cross lot lines, or a lot Z merger shall be recorded to remove the interior lot lines. I. The public right-of-way, between the property line and top of curb (also known as a C. "parkway") along adjoining streets shall be landscaped by the developer and maintained <L in perpetuity by the property owner or a landscape maintenance district, as provided T below. Details of the parkway landscaping shall be included in the project's on-site landscape plan, unless the parkway area is included in a landscape maintenance district, in which case, separate landscape plans shall be provided. s a� m. Unless the landscaping is maintained by a homeowner association, a Landscape 3: Maintenance Assessment District shall be formed to maintain landscaping within the n following areas: private common areas and public right of way (i.e. "parkway") having co no driveways. n. All required maintenance districts shall be formed prior to map recording for each o applicable phase of development. a o. Separate sets of landscape plans shall be provide for any Landscape Maintenance Q Assessment District for each applicable phase of development. o p. Prior to sale of each parcel,the owner or designee shall provide the City's Real Property Section of the Public Works Department with a signed copy of the "Notice of Assessment District" disclosure for each property purchaser. q. Grading operations will be conducted in non-Santa Ana wind conditions in conformance v with the proposed grading plans. City staff will monitor grading operations and wind conditions which may cause excessive soil erosion. During these conditions, grading activity may cease temporarily, however, graded slope areas will continue to be = watered. r. All materials will be retained on-site to achieve a balanced grading operation of cut and fill reducing vehicle travel and disposal of material, unless otherwise approved by the co c City Engineer. s. Increased slope stabilization and compaction will reduce wind erosion. Any re- landscaping will occur in three phases. Phase 1—During grading,grading areas will be watered and soils compacted. Q Phase 2 — After grading but prior to installation of a permanent water system, graded areas including slopes, streets, and pads will continue to be maintained E according to the applicable erosion control plan. Phase 3 — After grading and installation of a permanent water system, a a permanent irrigation system and plant material will be installed and maintained on manufactured and greenbelt slope areas. A temporary irrigation system or other alternative approved by the City Engineer, will be maintained on the remaining pads and streets until completion of the buildings, in accordance with the applicable erosion control plan. -6- Packet Pg.284 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 0 25. Utilities improvements shall be provided as follows: a. When designing a private sewer/water system,the following conditions shall be apply: i. The water and sewer system shall be designed for capacity of future expansion. ii. The water system shall be designed per the latest edition of the A.W.W.A standards. iii. The water and sewer system shall be designed according to the requirements of ° LO the Department of Health Services of the State of California. iv. Prior to construction of the water and sewer system, all of the necessary z permits shall be secured from the Department of Health Services of the State of d California and San Bernardino County Department of Environmental Health o- n. Services. The owner or designee shall be required to provide the City Engineer d with copies of such permits, prior to approval of the final map for the first phase ' of development. v. All of the flow discharging from the sewer and water treatment plant shall be permitted by the Regional Water Quality Control Board. b. Design and construct all public utilities to serve the site in accordance with Municipal X Code, City Standards and/or requirements of the serving utility, including gas, electric, LO telephone, water, sewer and cable TV (Cable TV optional for commercial, industrial, or M institutional uses). c. Each parcel (as opposed to each lettered lot) shall be provided with separate water and o sewer facilities so the City or the agency providing such services in the area can serve it. o d. Sewer backflow preventers shall be installed for any building with the finished floor C elevation below the rim elevation of the nearest upstream manhole. o e. Sewer main extensions required to serve the site shall be constructed at the expense of the owner of designee. f. Notwithstanding anything to the contrary contained in these conditions, this project is = located in the water service area/sewer service area of the East Valley Water District 0 therefore, any necessary water/sewer main extensions shall be designed and constructed in accordance with requirements of the East Valley Water District. g. Utility services shall be placed underground and easements provided as required. _ h. A street cut permit, from the City Engineer, will be required for utility cuts into existing streets where the street is not being repaved as part of the required improvements. i. All existing overhead utilities adjacent to or traversing the site on the project side of the M street shall be undergrounded in accordance with the applicable provisions of the Municipal Code. s j. Existing Utilities which interfere with new construction shall be relocated at the Developer's expense as directed by the City Engineer, except overhead lines, if required Q by applicable provisions of the Municipal Code. c k. As an alternative to undergrounding, the owner or designee shall provide a letter of E agreement for participation in an assessment district, if one is formed, to fulfill the requirement for undergrounding utilities. Prior to recordation of a final map for each phase of development of this project or issuance of a building permit for that phase,the Q owner or designee shall have the letter of agreement recorded with the deed. I. Sewers within private streets or private parking lots and not within public utility easements, shall not be maintained by the City, but shall be designed and constructed to City standards and inspected under a City on- site improvement permit. In those -7- Packet Pg.285 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 cases, a private sewer plant designed by the owner's engineer and approved by the applicable State and County agencies shall be required. This plan can be incorporated into the precise grading plan,where practical. m. Approved building plans are required for fee calculations. Fees will be assessed at the rate established by Council Resolution 89-510 effective January 1, 1989.The established rate for a single-family dwelling is$2,260 per dwelling. N n. The project shall conform to all the rules and regulations of the East Valley Water ° LO District, including fees. Z 26. Mapping 6 a. A Final/Parcel Map based upon field surveys will be required for each phase of Q development. 4 b. All street names shall be subject to approval of the City Engineer prior to map approval. T c. Survey and map information including, but not limited to, building setbacks, flooding = .a and zones, seismic lines and setbacks, geologic mapping and archeological sites shall be included on the on-site improvement plan. a, x 27. Improvement Completion a. Street, sewer, and drainage improvement plans for the applicable phase of the project M shall be completed, subject to the approval of the City Engineer, prior to the final map recordation for the applicable phase. o b. If the required improvements are not completed prior to final map recordation, an c improvement security accompanied by an agreement executed by the developer and Q the City will be required. o c. If the required improvements are not proposed to be completed prior to recordation of c any applicable Parcel Map, a deferred improvement agreement in accordance with the ° applicable provisions of the Municipal Code shall be required. If the agreement is approved,an improvement certificate shall be placed on the Parcel Map stating that the ° U required improvements shall be completed upon development. This condition is applicable to Parcel Maps consisting of 4 or less parcels only. a d. Street light energy fee for the applicable phase of development, (paying the cost of CL street light energy for a period of 4 years), shall be paid. Exact amount shall be shall be payable prior to final map recording for the applicable phase. e. All rights of vehicular ingress/egress shall be dedicated from the following streets: r Highland Avenue and Orchard Road. 28. Street Improvement and Dedications w a. All public streets within and adjacent to the development shall be improved to include Q combination curb and gutter, paving, handicap ramps, street lights, sidewalks and appurtenances, including, but not limited to traffic signals, traffic signal modifications, E relocation of public or private facilities which interfere with new construction, striping, shall be accomplished in accordance with the City of San Bernardino "Street Q Improvement Policy" and City "Standard Drawings", unless otherwise approved by the City Engineer. Street lighting, when required, shall be designed and constructed in accordance with the City's "Street Lighting Policies and Procedures". Street lighting shall be shown on street improvement plans except where otherwise approved by the City Engineer. -8- Pa66t.Pg.286; Attachment 1 Updated Conditions of Approval Tentative Tract Map No. 15731 b. Dedication of adequate street right-of-way (R.W.) to provide the distance from street centerline to property line and placement of the curb line (C.L.) in relation to the street centerline shall be in conformance with the Modified Tentative Tract Map No. 15731 and the Modified North Plan. c. Construct 8" Curb and Gutter per City Standard No. 200 adjacent to the site. Widen pavement adjacent to the site to match new curb and gutter. Construct approach and N departure transitions for traffic safety and drainage as approved by the City Engineer. ul d. Construct sidewalk adjacent to the site in accordance with City Standard No. 202, Case "A" (6'wide adjacent to curb). z e. Construct Handicap Ramps in accordance with current APWA standards at all curb d returns within and adjacent to the project site. Dedicate sufficient right-of-way at the a corner to accommodate the ramp. Q f. Residential driveway approaches shall be constructed per City Standard No. 203. T Commercial driveway approaches shall be constructed in accordance with City Standard = No. 204, Type Il, including Handicap by- pass. Remove existing driveway approaches that are not part of the approved plan and replace with full height curb & gutter and s D sidewalk. g. Except as provided below, all curb return radii shall be 25 feet minimum. h. Curb returns at the intersection of two arterial streets shall be 35 feet unless otherwise M approved by the City Engineer. i. Construct all cul-de-sac's and knuckles in accordance with City Standard Drawing No. > 101. o a j. Install street lights adjacent to the site in accordance with City Standard Nos. SL-1 and Q SL-2. c k. At least 28 feet of pavement shall be provided along streets adjacent to the subdivision, c unless otherwise approved by the City Engineer. ° I. Two independent means of access having a minimum dedicated and paved width of 24 feet shall be provided to the project. Additional width may be required for drainage ° U control and traffic safety. m. All streets within the subdivision shall be public, except where designated by the owner c"v or designee with respect to multi-family projects. Streets shall be a minimum 28' paved width with curb and gutter, and street lights. Street lights shall be operated and maintained by the Homeowner's Association or landscape maintenance district. n. Any private streets shall be identified by a private street name sign. All entrances to w private streets from public streets shall be identified by textured pavement or other treatment as approved by the City Engineer. o. All street name signs and regulatory signs shall be installed at owner's expense as Y approved by the City Engineer. Q p. Streets with grades exceeding 12% shall receive a surface treatment to increase the friction factor and be concrete, as approved by the City Engineer. E q. Roadway geometrics and sight distance for private streets shall be suitable for a design v speed of 25 miles per hour unless other design criteria are specifically approved by the Q City Engineer. r. If a private sewer and/or private water system is constructed by a private entity, a private sewer/water system in the streets will be required and shall be maintained by the applicable private entity. The public sewer shall be extended by the owner or designee to the tract boundary. -9- Packet Pg.287 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 29. Project phasing shall be allowed subject to the following: a. Each individual phase shall be designed to provide maximum public safety, convenience for public service vehicles, and proper traffic circulation. b. Improvement plans for the total project or sufficient plans beyond the phase boundary to verify the feasibility of the design shall be complete to the satisfaction of the City N Engineer. ° to c. A Plan shall be submitted for review and approval by the Engineering Division, the Fire Department and the Planning Division, indicating what improvements will be z constructed within the given phase, subject to the following: R i. Dead-end streets shall be provided with a minimum 40 foot radius paved width; a CL ii. Half width streets shall be provided with a minimum 28 foot paved width; Q iii. Street improvements shall be completed beyond the phase boundaries, as necessary to provide secondary access; _ a iv. Drainage facilities, such as storm drains, channels, earth berms, and block walls, shall be constructed during the applicable phase, as necessary, to protect the development from off-site flows; v. A properly designed water system shall be constructed during the applicable phase of development,which is capable of providing required fire flow, perhaps M looping or extending beyond the phase boundaries; vi. Easements for any of the above and the installation of necessary utilities shall o be completed; and, Q. vii. Phase boundaries shall correspond to the lot lines shown on the approved Q- a tentative map. o N C 30. Applicable Engineering Permits and Fees ° a. All engineering permits and fees shall be determined pursuant to the Second Addendum. ° U 'a d 31. Additional Requirements—General c�a a. Beginning with the first phase, the developer shall construct the ultimate widening of Highland Avenue between the Route 330 Easterly right-of-way and a point easterly of Orchard Road. Concurrent with the widening improvements, a traffic signal or other form of traffic control (e.g. roundabout), as approved by the City Engineer, shall be r installed at the westerly project access (primary entry) on Highland Avenue. In addition E and concurrent with the widening improvements, a traffic signal shall be installed at ._ Orchard Road on Highland Avenue. y b. Highland Avenue shall be posted "No Parking Any Time" along both sides of the roadway Q between the Route 330 northbound off-ramp and Orchard Road to accommodate a Class II Bicycle Lane. E c. Additional traffic controls (stop signs, stop bars and legends) shall be installed at the following locations: a i. Westbound on Arroyo Vista Drive at Orchard Road ii. Westbound on Terrace Drive at Orchard Road iii. Northbound on Orange Wood Road at Arroyo Vista Drive iv. Additional street intersections as determined by the City Engineer. - 10- Packet Pg.0,8 Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 INTEGRATED WASTE MANAGEMENT 32. New accounts require a completed Service Application with a full deposit returned to the City of San Bernardino Integrated Waste Management Division prior to start of service. Residential Service N O Ln 33. Residential refuse and recycling services are to be provided by the City of San Bernardino Integrated Waste Management Division at a minimum of once weekly. z m 34. The City shall provide one set of a blue,green and black 96 gallon automated service carts to a CL each single family OR one set to every two units in multi-unit dwellings up to 4 units, upon e request. _ x 35. Residential units shall have a minimum of 4 feet by 11 feet area on concrete pad located out of view of the public right-of-way behind a fence or within an enclosed garage for storage of each a� set of three automated carts. ti 36. The path of travel from the storage pad to the curb shall be continuously paved with 3'-6" M minimum gate opening. 37. A minimum 12-foot space on the street along the curb adjacent to the driveway of each Q. L residence must be clear for automated service carts,with a minimum 2-foot setback and 17-foot Q vertical clearance of all obstructions such as structures,fences, and raised landscaping. o N C Multi-family Residential ° =a c 38. Double-wide enclosures of 8 feet by 15 feet shall be required for all development to allow for v dedicated recycling bins. 39. Front-load compactor units must be contained in an enclosure large enough to hold the unit and CL one additional bin. N 40. Front-load bin and compactor enclosures must be constructed according to City Engineering r Standard 508. Rear or side pedestrian entry may be provided on all enclosures. Pedestrian E entry shall have a 3-foot width, no gate or door, and an "L"shaped block screen the same height of the enclosure. Pedestrian access shall be continuously paved without curbs from building to mac, r refuse enclosure or compactor unit. Q c 41. Enclosure pad shall be flat and level to restrict bins from drifting. E 42. Enclosure and pad shall be designed for proper drainage of surface water. Q 43. Enclosure must be at least 5'from combustible walls, eave lines, or openings. - 11- Packet Pg.289' Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 44. Only refuse bins and the contents therein for disposal may be stored in refuse enclosures. All other equipment,fixtures, and materials such as electrical panels, circulation or exhaust ducts or vents, grease bins,or surplus supplies are strictly prohibited. 45. Enclosures shall be buffered with landscaping when viewable from public right-of-way, and vegetation shall not restrict gates or exceed height of enclosure. N 0 L 46. Enclosures shall be located with gates aligned for straight access for service vehicles when using 6 yard bins. Z d 47. Enclosures shall not obstruct drive aisles, driveways, loading zones, parking, handicap access, or a visibility of cross-traffic from drive aisles, alleys,or streets. Q 48. Enclosure gates shall not open into drive aisles, parking spaces, or walkways. Reinforced = bollards shall be constructed and coated with reflective paint to protect adjacent areas from gates opening past 90°. 49. There shall be a minimum drive aisle width of 20 feet, vertical clearance of 20 feet, a minimum 40-foot straight and level approach to enclosure, and a minimum radius of 40 feet for all drive M turns along the main ingress to and egress from enclosures. 75 50. Approach to enclosure shall have the pavement clearly stripped and labeled "SERVICE LANE", Q. NO PARKING" and "NO LOADING". C 0 51. Location, orientation, and dimensions of enclosures, enclosure gates, and pedestrian entry, shall be shown on site plans and labeled that construction shall meet City Engineering Standards. °- c 52. Roll-off compactor units must be installed according to manufacturer's and City Engineering v specifications with the compactor hopper and roll-off box on a concrete slab with a minimum 3- foot continuously paved perimeter for safe access. v CL 53. Service access to compactor pads shall have a minimum 50-foot straight and level approach. N 54. Approach to the compactor pad shall have the pavement clearly stripped labeled "SERVICE co � LANE", "NO PARKING and NO LOADING E 55. Roll-off boxes at locations receiving City service must meet City rail and hook specifications per w City Engineering Standard 510. Q c 56. Compactor equipment shall be screened by materials compatible with building architecture and E landscaping as specified by City of San Bernardino Development Code. [MC§ 19.20.030(21)]. v c� 57. Location, orientation, and dimensions of enclosures, enclosure gates, pedestrian entry, a compactor pads, and compactor screening, shall be shown on site plans and labeled that construction shall meet City Engineering Standards. - 12- Packet Pg.290 6.A.d Attachment 1 Updated Conditions of Approval Tentative Tract Map No.15731 58. Facilities with gates that are locked and unmanned on service days anytime between the hours of SAM and 5PM Monday through Saturday shall provide access code or key to Public Works. POLICE 59, Crime Prevention through Environmental Design (CPTED) standards shall be implemented. The N final design improvements shall be reviewed and approved by the Police Chief, or designee. The 9 CPTED standards are on file in the Community Development Department. r 6 z 60. Multi-family properties and the Home Owners Association(s) shall be professionally managed 6 and the employees of the management companies shall be required to complete all three a phases of the current and future Crime Free Rental Housing Program. The property managers Q should maintain a cooperative relationship with the San Bernardino Police Department Crime Free Rental Housing Program and Crime Prevention personnel to ensure a safe and crime free environment. t 61. Burglar/Robbery Alarm permits must be issued by the San Bernardino Police Department prior x to installation. r. LO co M 62. Roof Ladders that are permanently affixed shall be fully enclosed within the building or with decorative sheet metal to a height of ten (10) feet. This covering shall be locked against the o ladder with a case hardened hasp, secured with nonremovable screws or bolts and a padlock Q. with a minimum three-eighths (3/8) inch hardened steel shackle, locking at both heel and toe, Q and a minimum five (5) pin tumbler operation with nonremovable key when in an unlocked o position. Hinges on the cover will be provided with nonremovable pins when using pin-type hinges. :0� =a c FIRE ° U 63. The developer shall comply with all conditions of the Fire Protection Plan dated May 30, 2014, -tea as approved by the San Bernardino Fire Department on July 23, 2014, and on file with the C Community Development Department. N 64. The developer shall also record deed restrictions on all lots within Tract 15731 notifying all M property owners of the annual weed abatement and fire protection responsibilities. 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IL IR 0 'I'a 1EN.1 MIA I 'WgIgA4544:;; o 1,v, C, r !. ..rarll aaurloam , A// u �. Iv ir y 'iq N w� �s�oa ' __ E_SdN.BERNevnluh _ Irnrax,um nvuElq.m 1 ,nE..: .• ,� "'� _;__ '"\ I ¢I a _ M1wxl:_ CITY OF`HIGHt WD wu vouenac �' / r OF HIFJiLINGI 40. mw I roar _ �Y I yaroOLUlyi0.KT P;°K \\,•,� � \ q,� '.,>e,'�.o,o _�-�'. 1.y n b:. lMlD R110IX p6TnC! ,baw a LEGEND QNIKSfNE nunxn`ercNeExiNC FIRST AMERICAN TITLE C0MP:1\'Y „ MODIFIED TENTATIVE TRACT MAP P.p.; 15731 CITY OF SAN BERNARDINO_ _ r 0 €' /ate_ y` �i',x \ \•mss' ' �-�`' 3i' y } w\ a - .\ ._,, 'f+`y � +�✓' f It "T OIXIJ Ar J' >4 V - B - 3 r 00 \� r _ �' s. �P� _. a�n � � � � as �•° �\\��1 1.�� -:,rf 4 k .1 � - µ kk , _ x v w , { IfGEND n a lOf mlaGgHAC)1®PA 1pE i1gN9•V anrt1cswF ■nuARD E GINEEHIN FIRST AMERICAN TITLE COMPANY MODIFIED TENTATIVE TRACT MAP 15731 CITY OF SAN BERNARDINO Modified North Plan Highland Hills Property N A Planned Residential Community LO 6 z TTM 15731 C. Q a t 2 NM \l\ W J�/�r `, �twpta( j� `"�%'•-: ����i� f(t r`'f � 1( �r Z� � "= Ex r a November 10, 2014 Packet Pg. 323 N O LO r- 6 Z R N C. C_ Q N Z .a C fQ L 2 ti LO Co M r O N O r r) C f0 d r L O Z Q� cO C LO E U f6 Q C d .0 U fSf r w Q Packet Pg. 324 Table of Contents I.INTRODUCTION TO MODIFIED NORTH PLAN..........................................................................................1 II.DESCRIPTION OF MODIFIED NORTH PLAN.............................................................................................3 RESIDENTIALDISTRICTS...............................................................................................................................................4 HOMETYPES........................................................................................................................................................................4 GRADINGCONCEPT...........................................................................................................................................................8 CIRCULATION SYSTEM DRAINAGE AND FLOOD CONTROL "' 8 r WATERAND SEWER.........................................................................................................................................................9 6 PARKAND TRAIL SYSTEM..............................................................................................................................................9 Z FIRE PROTECTION PLAN 4) 9 n. CL III.RESIDENTIAL DEVELOPMENT STANDARDS....................................................................................... 13 Q IV.TYPICAL RESIDENTIAL LOT LAYOUTS..................................................................................................14 V.STREET SECTIONS..........................................................................................................................................18 c s rn ti u� 00 M r O r r rl C N a 0 z w 0 c E Q Y E V a Packet Pg.325 Qw List of Exhibits EXHIBIT 1: COMPARISON OF DEVELOPEMT AREAS IN APPROVED AND MODIFIEDNORTH PLANS -----------------------------——------------------------------—------------—--------------- EXHIBIT 2: RESIDENTIAL DISTRICTS MAP----------—-------- ............................—. 5 EXHIBIT 2ALT: RESIDENTIAL DISTRICTS MAP AND ALT PARK LOCATIONS---------------------------------------------------------------------------------------------------------------------------------- 9 Ln -r- EXHIBIT 3: STATISTICAL SUMMARY--------------------------------------------------------- 6 --------------------------------- z EXHIBIT 4: RESIDENTIAL DISTRICTS: PERMITTED HOME TYPES -------------.---8 CL EXHIBIT 5: PARK AND TRAIL SYSTEM MAP---------------------------------------------------- EXHIBIT SALT: PARK AND TRAIL SYSTEM MAP----------------------------------------------------------------- EXHIBIT 6: FIRE PROTECTION CONCEPT PLAN---------------------.......... EXHIBIT 7: DEVELOPMENT STANDARDS FOR HOME TYPES----—-----------—--------13 U) 00 EXHIBIT 8: LD SFD LOT LAYOUT-----------------------------------—----------------------------------- n EXHIBIT9: MD SFD LOT LAYOUT-------------------------------------------------------------------------- CD EXHIBIT 10: COURTYARD LOT LAYOUTS-------------------------- ............15 EXHIBIT 11: TOWNHOUSE LOT LAYOUTS-------------------------------------..............-----------------------------16 a. EXHIBIT 12: GREENCOURT LOT LAYOUTS------------------------------—-------------------------—----------------17 0 EXHIBIT 13: STREET SECTIONS KEY MAP.------------------------- EXHIBIT 14: STREET SECTIONS 1-3-------------------------------- 0 EXHIBIT 15: STREET SECTIONS 4-6----------------------------- - -- ----- ------------------- EXHIBIT 16: STREET SECTIONS 7-9-----.-----------------------------------------------------------------------------21 E I Packet Pg. 326J N O LO T O Z Q N .a C to t ti LO Co T 0 N O T T� a t L 0 Z d W C0 G LO 0 E U 0 W Q 0 0 E U f0 r Y a Packet Pg. 327 I. INTRODUCTION TO MODIFIED NORTH PLAN On April 4,2001,the San Bernardino County Superior Court("Court")approved and affirmed a Second Addendum to the July 3, 1989 Settlement Agreement("Second Addendum") and ordered N that the Second Addendum be included as a supplement to the Judgment and Orders then in CD effect in San Bernardino County Superior Court Case No. 241464("Judgment"). The Judgment authorized Rancho San Andreas Company(referred to as "RSA" in the Second Addendum),the Z previous owner of the land which is the subject matter of this request("Property"),to develop the Property pursuant to the North Plan("North Plan"),which right to develop the Court CL recognized as being vested under California law. N Section 1.4 of the Second Addendum,as included in the Judgment, expressly recognized that the $ passage of time may demonstrate that modifications to the North Plan are necessary or appropriate and established a minor modification process that would be effectuated through L, operating memorandum approved by the Director of Development Services of City, or the holder s of any successor position. The successor position to the Director of Development Services is the LO Planning Director("Director"). co Specifically, Section 1.4 of the Second Addendum, as included in the Judgment,provides for o minor modifications based on the following considerations: CD "Minor modifications("Minor Modification(s)")shall be deemed to be =� modifications which are requested by RSA from time to time and which result in a development which is equal to or less intense from the standpoint of environmental impacts under CEQA,than development of the Highland Hills Property pursuant to z the North Plan including,without limitation,(a) fewer residential dwelling units,(b) less gross leasable commercial space, (c)changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan, 0 (d) enhancement of architectural,landscape and hardscape improvements,(e)more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge,know how or improved technology, or(fl other modifications which the Director determines are similar to the foregoing,or any combination of the same(even if,in such combination,some elements intensify and other elements deintensify,but in the aggregate the modification is equal to or less intense from the Q standpoint of environmental impacts under CEQA,than development of the C Highland Hills Property pursuant to the North Plan)." s U The passage of time and changes in consumer demand have demonstrated that modifications to Q the North Plan are necessary and appropriate. The most significant change in consumer demand has been the demand for lower density, detached residential product. Modifications to the North Plan are necessary and appropriate to meet such demand and to carry out the development of the Property as contemplated in the Second Addendum and the Judgment. Highland Hills Modified North Plan 1 Packet Pg. 328 The purpose of this request for minor modification and its supporting documents is to demonstrate that the revised North Plan("Modified North Plan")is equal to or less intense from the standpoint of environmental impacts under the California Environmental Quality Act,than development of the Property pursuant to the North Plan in that it involves (a) fewer residential dwelling units, (b) less gross leasable commercial space, (c) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan, (d) enhancement of architectural, landscape and landscape improvement and(e)more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, o know how or improved technology. 6 Based on the foregoing, First American Title Insurance Company("First American"),the z successor-in-interest to Rancho San Andreas Company,respectfully requests that the Planning Director determine (a)that the Modified North Plan is an appropriate case for minor Q modification of the North Plan and that(b)the Modified North Plan will supersede and control the North Plan. To the greatest extent possible,the North Plan and the Modified North Plan will be interpreted consistent with one another. However, in the event of a conflict,the conflicting provision or provisions in the Modified North Plan shall supersede and control the conflicting provision or provisions of the North Plan(hereinafter referred to as"Approved North Plan"). r. LO CO M O r rl C 0. rw L O Z CCQ G LO d E U cC w Q C N E U Q Highland Hills Modified North Plan 2 Packet Pg. 329 II. DESCRIPTION OF MODIFIED NORTH PLAN The Highland Hills Project Area comprises 543 acres located at the northeastern tip of the City of San Bernardino just east of SR 330, south of the San Bernardino National Forest,west of the City of Highland and the existing residential streets Arroyo Vista Drive and Orchard Road north of Highland Avenue. Primary access to the property is from Highland Avenue. N Based on current marketing and engineering techniques,minor modifications to the Approved LO North Plan are proposed by the landowner,which will also reduce environmental impacts and provide more effective mitigation. As a result,the proposed development of the project site has z° been substantially reduced in the Modified North Plan. In particular,the number of units has been reduced by 54%; the total area of disturbance has been reduced by 44%; and perhaps more a importantly the estimated volume of earthwork has been reduced by 65%. The number of trips generated from the project site will be reduced by 53%. Proposed development has been eliminated from the northern,higher elevation portions of the project site, and the unobstructed = skyline ridge is preserved. The residential dwelling mix has been modified with a relative f° increase in single family detached units by about 7% for the Modified North Plan. The Modified North Plan will include water quality control basins,building energy requirements as prescribed in the latest building code, and meet all other requirements imposed by State and Federal LO agencies such as the Regional Water Quality Control Board, California Fish and Wildlife Service and the Army Corps of Engineers. CD o r 0 r ri 0- EXHIBIT 1: COMPARISON OF DEVELOPMENT AREAS IN APPROVED AND MODIFIED NORTH PLANS o z 4--P1'0jG1Ct Project a Boundary 0 _ E Development .. ,,; '� Area beveloptttertt ,�. , � r:( E o APPROVED NORTH PLAN MODIFIED NORTH PLAN Highland Hills Modified North Plan 3 Packet Pg. 330 RESIDENTIAL DISTRICTS While the Approved North Plan is designed as a resort community, the Modified North Plan is designed as a smaller residential community with emphasis on conservation, energy efficiency, and design. All units will be for-sale. Of the 821 units deleted from the Approved North Plan, most are rental or senior units with sizes starting at 700 square feet. With this reduction the Modified North Plan has a greater percentage of single family detached(39%) than the Approved North Plan (32%). With fewer units, individual homes sizes can be larger. The multi- N family condo units start at 850 square feet and the single family condo units start at 1000 square LO feet. The 270 single family detached homes range in size from 1500 to 3000 square feet and 0 larger. Z Four residential districts have been delineated to accommodate one or more of six particular Home Types. Exhibit 2 depicts the Residential Districts. y Exhibit 3 estimates the residential district acreage and number and type of dwelling units to be a built in each district. Dwelling units, acreages and other information on Exhibit 3 may be updated with any subsequent subdivision and grading permit application. Under no 2) circumstances shall the total dwelling units for the project exceed 695. ti LO Exhibit 4 indicates which Home Types are permitted in each Residential District. M 0 N HOME TYPES ° Low Density Single Family Detached(LD SFD) residences have a minimum lot size of 8,000 square feet are intended to complement the existing homes and road system along Arroyo Vista a Drive and Orchard Road in the City of Highland. The minimum home size is 2800 square feet. 0 Medium Density Single Family Detached (MD SFD)residences have lots ranging from a Z minimum of 4,000 to 7,000 square feet. The minimum home size is 1500 square feet. d 0 Medium Density Single Family Condominiums (MD SFA/SFD)have three layout types. The minimum home size for each is 1000 square feet. c d The Courtyard Condo is characterized by clusters of eight or less single family detached s homes that can front on an alley or street with private rear yards. w a The Townhouse Condo is characterized by clusters of ten or less, single family attached homes fronting on an alley with side entrances from the alley or a paseo. E The Greencourt Condo is characterized by clusters of eight or less alley-loaded, single y family detached homes. Homes may front on a public street or common paseo. a Multi-Family Condo will be for-sale units with a minimum home size of 850 square feet. Highland Hills Modified North Plan 4 Packet Pg. 331 i EXHIBIT 2: RESIDENTIAL DISTRICTS MAP LL 0 t; 1� aY o � � U) Qa u- F- z 4" r�� w _ a � cvchcrcY.7 � a�i Z ] O a � rrtenntr � CLri a LO N _ W 7JF CL .f �? ° O ]t LO l'7 !f i N � t r Q i A Highland Hills Modified North Plan 5 Packet Pg. 332 6Ai EXHIBIT 2ALT: RESIDENTIAL DISTRICTS MAP AND ALT PARK LOCATIONS r, rf Ftl Q 0 N a d 0 Z X ' LL C) �C- z U } F'" �' IQ r��� 0,!��.. i � r CSI Cl) 'V' p d CL CL J ��..I�� N fP { .` 0 r x fe) ,I! LO 1 <. ✓ _ E TG � T �J Highland Hills Modified North Plan 6 Packet Pg. 333 EXHIBIT 3: STATISTICAL SUMMARY* Land Use Dwelling Gross Density Gross Acres Units Residential R1 SFD 45 2.2 du/ac R2 SFD 225 4.0 du/ac 57 c LO R3 SFD/SFA 200 9.5 du/ac 21 0 R4 MF 225 25.0 du/ac 9 Z Subtotal 695 6.6 du/ac 105 0 CL ,z a Open Space Parks 9 = Trails(total length X width) 5 Landscape Slopes 51 Fuel Modification Zones 50 = Subtotal 1.15 LO 00 M Public Facilities �r Roads 13 0 N Water Tank 2 0 Flood Control Basins 3 i Water Quality Basins 4 _@ Subtotal 23 a. .c 0 Total Development Area 2.9 du/ac 243 'a m Residual Property: 301 0 Total Project Area 1.3 du/ac 544 "' c These number are based on the Modified TTM 15731 and may change during final mapping,but v under no circumstances shall the total unit exceed 695. This exhibit may be updated-,ith any subsequent � w city application within the project area. a ».t c Revised 11-10-14 a) E U �E w a Highland Hills Modified North Plan 7 Packet Pg.334` Exhibit 4 Residential Districts: Permitted Home Types Residential District R-1 R-2 R-3 R-4 LD SFD X X X c Housing MD SFD X X X Type MD SFD Courtyard X X 6 MD SFA Townhouse X X MD SFD Greencourt X X a MF Condo X Q N S GRADING CONCEPT c a� Development in the Modified North Plan is concentrated in the southern portion of the project area where the topography is best suited to the efficient layout of infrastructure,balanced grading, LO fire protection, and a backbone street that can connect to Highland Ave. at two separate points. All grading is balanced onsite, and contour grading and landscaping will ensure a natural appearance of exposed cuts. The development area is divided into two parts by Cook Canyon C1°4 Wash, a flat alluvial valley south of the wash and several higher upland tiers north of the wash. ° The grading concept allows significant reductions in the amount and height of cut and fill. The total grading volume is approximately 3.5 million c.y. compared to 10 million c.y. in the Approved North Plan, and the total area disturbed by development activities is reduced from 345 IL acres to 193 acres. Thus, more natural features can be preserved. For example,more of Cook o Canyon Wash is left in a natural state in the Modified North Plan. z Q Leighton and Associates has prepared an updated geotechnical report. o CIRCULATION SYSTEM A backbone loop road links the various residential districts of the community. Typically, all roadways will have curb adjacent landscaped parkways and sidewalks on both sides. An 8' s multi-use trail will replace the outside sidewalk on the loop road. Theme landscaping and uniform maintenance of parkways are intended to separate the pedestrian area from the roadway a and enhance the overall appearance of the community. Cul-de-sacs shall not exceed 600 feet in length. The maximum road grade shall not exceed 10%, averaging between 5%-6%. U f6 a+ a+ DRAINAGE AND FLOOD CONTROL a The entire planning area drains to City Creek,which is tributary to the Santa Ana River. The most significant drainage feature within the project boundary is Cook Canyon Wash. The wash conveys storm water through the site to City Creek. As recently as December 2010 intense rains caused Cook Canyon Wash to overflow and cause localized flooding in Highland Avenue and 49 Summertrail Place. The Approved North Plan sited a golf course in the area of the valley and Highland Hills Modified North Plan 8 Packet Pg.335 assumed flooding could be contained within it. This was proven not to be the case in 2010 when severe flooding occurred on Highland Avenue and Summertrail Place. The Modified North Plan corrects this design flaw by routing the lower portion of Cook Canyon Wash, into RCP and concrete lined channel. In addition, it provides a new second desilting basin upstream. The I Modified North Plan preserves 19,513 feet(or 61%) of Cook Canyon Wash. The Modified North Plan will also include water quality basins, and meet other new requirements imposed by State and Federal agencies such as the Regional Water Quality Control Board, California Fish and Wildlife Service and the Army Corps of Engineers. c Allard Engineering has prepared an updated hydrology and drainage study. z6 d CL WATER AND SEWER a The Development Area has been included in the East Valley Water District water and sewer service master plans. A location for a water tank is identified on the development plan for domestic water storage and emergency fire flows. o a� The East Valley Water District has prepared new water and sewer studies for the project. ti LO co PARK AND TRAIL SYSTEM The parks and trails system consists of four neighborhood park and three pocket parks, totaling 9 0 acres and 5 acres of multi-use trails, located throughout the community. All parks will be located o adjacent to a trail segment. Land and improvements of this park and trail system are intended to r meet the local park requirements for the project. See Exhibit 5. n. The northern Park 1 will emphasize active recreation and a connection to Park 2, a lookout higher up the trail. Park 3, located between Arroyo Vista Road and Cook Canyon Wash, will be z devoted to a nature park. The existing grove of mature oak and sycamore trees and historic 0 building foundations will be maintained as featured elements. Park 4 will be a linear park that features the trail system along a portion of the historic Plunge Creek Ditch. 0 Exhibit 2Alt and Exhibit 5AIt show an alternative park location for Park 3 and alternative land use at Arroyo Vista Road and Cook Canyon Wash. U t4 FIRE PROTECTION PLAN a A Fire Protection Plan has been prepared for the project in accordance with city and state requirements. Threat of internal structure fire is reduced by the requirement for fire sprinklers E and smoke detectors to be installed in all homes. The threat of external vegetation fire is reduced by the creation and maintenance of fuel modification zones throughout the community. Exhibit 6 gives an overview of the fire protection concept. Hunt Research Corporation has prepared a new fire protection plan for the project. Revised 11-10-14 Highland Hills Modified North Plan 9 Packet Pg. 336 EXHIBIT 5: PARK AND TRAIL SYSTEM MAP ••,„ U F-- ,�. �,,,r*••� (n 11.! O Of 0 < LO 1 0 ~ w 6 l aD cl,t3` Q CL iF ' I :E s ! zy �$J] LO r ao boo Orange G. N O Z c U CD E F s F U F w a Q � w a E Highland Hills Modified North Plan 10 Packet Pg.137. EXHIBIT 5 ALT: PARK AND TRAIL SYSTEM MAP }� /* 1 J Y U) o O W F- � d Z { w 0 L C. C. kt er d Z i 00 M ` Oron9e /, o o .1 r n I n � 1 l /p d } , f" o 1� CID, 1 Y T Q b > hq _ 'C7 � N rx Highland Hills Modified North Plan 11 Packet Pg. 338 EXHIBIT 6: FIRE PROTECTION CONCEPT PLAN 0 Z a o yr w �� ti wo wo N 2�.. Z. w wa 8 w ao �o to O w -W LLti a° 1, NW WN W N y 2 u� 2 w¢ ww mu) a $ oa 4 O °a w� w° } ^w a n ha oo w Q Z ou Z Ka 3ww p i3 i i z ¢= 3� y a K o: 0 0 0 �. x a N ..__lL° N LL N LL d ) 2 0 2 2 C S q Q' arm a 0.. ,c..• .> ter" _ i ¢_ < �z s w . x a � M , 4 >1; oul xy d w O o :IJ °o ° orw N 1 (�^' C cc �- W ...- � _ l..L' Z n T Q i !•,J p '!� \t�{y� ��``mot ,,��^'..��J 3'= V T-n uj a+.. Z=/ ty o�r a,± _�. i 7 34 �.;� c' ;. "J z w 3 :,>a� Highland Hills Modified North Plan 12 Packet Pg. 339 III. RESIDENTIAL DEVELOPMENT STANDARDS EXHIBIT 7: DEVELOPMENT STANDARDS FOR HOME TYPES N O LD SFD MD SFD MD SFD MD SFD MD SFA to Residential Type (front- (front- Condominium Condominium Towniltouse W loaded) loaded) (alley-loaded) (alley-loaded) Condominium Condominium Z gmatcourt courtyard (alley-loaded) Lot Area(min.s.f.} 8,000 4,000 t acre l acre 1 acre 1 acre CL Lot Dimensions(thin.feet) Q Lot Width 80 40 100 100 100 100 Corm Lot Width 86 46 i>/a Ida n/a n/a Z LotDepth 100 s0 100 100 100 100 -0 Front Setbacks(min.feet) C Living Area,from back of R-O.W. 15 10 11 71 11 10 Garage,from back of R,O.W. 18 is n/a n/a iVa Ii/a Z Living Area,from Paseo n/a eda 0 n/a n/a n/a Paseo Width n/a tr/a I s tJa ri/a n/a t0 00 Rear Building Setback(min.feet) 20 20 3 9 10 10 Side'Building Setbacks(min,feet) CD Interior Side to P.L. 7.5 3 1 3.5 3.5 7,5 5 N N Street Side to P.L. I I 11 I I I I 11 1 1 Building Setback from Slope(twin.feet) I From Top to Face of Footing 40`or 1/3 of the Slope Height,whichever is lea From Toe to Face of Structure 15'or U2 of the Slope Height,whichever is less d DU Separation(thin.feet) 15 10 7 7 n/a n/a Distance Between Buildings(min.feet) n/a n/a 7 7 15 15 O Z Outdoor Living Space tt/a n/a 35%of Unit Size=" -O ai Structure Height(max.) w Stories 2.5 2.5 15 2.5 2.5 3 0 O Feet 35 35 35 35 35 45 2 No.of Attached DUs(max.average) n/a n/a n/a n/a 6 24 to Dwelling Unit Size(min.s.£) 2.800 1,500 1 M 1.000 1.000 850 Lot Coverage(max.%) 1 35 1 35 1 50 50 50 50 E Notes V •A minimum of 516 of the outdoor living span:must be private(balcony or patio),and a minimum of 25%of pie outdoor living space y must be common useable space.(not including parking lot landscaping or landscape setback areas).The remaining(59,;)may be either Q common or private useable space. Arch il eel uml Proj eel ion s(horimnlal).Roof overhangs,bay windows,window trims,material veneers,shutter details,chimneys,media � niches,over framing for principal windows and recessed garages doors,and similar elements may project a maximum of T into the required O front,rear or side setback areas. E Architectural Projections(vertical).Cupolas,towers,mezzanine space above the 2nd floor not to exceed 250 square feet,and other v similar features are pennittal providod dial they do not exceed the height limit. r Q Revised 11-10-14 Highland Hills Modified North Plan 13 Packet Pg. 340 s IV. TYPICAL RESIDENTIAL LOT LAYOUTS These lot layouts show traditional single family detached lot types with front garages. The homes will be separated from the street by a landscaped parkway and sidewalk or trail. The setback to the garage door is a minimum of 18 feet,with an allowance for a 2-foot projection on either side of the door. All setbacks are minimums. CV O Ln T- 6 EXHIBIT 8 EXHIBIT 9 Z �a LD SFD LOT LAYOUT MD SFD LOT LAYOUT Q a a 86' CORNER LOT 46' CORNER LOT rn 80' INTERIOR LOT 40' INTERIOR LOT I p r - G-- - -REAR I - -- -- REAR C I 20' I 20' 1 '_ 1 2 U'J VJ Ll 1 � 00 ¢ QI I ¢ Y I O J N WI i QI 1 O a :7.5' a �� S' r CC w I � w w = I Fes- I I 2 v~i I I Z Ia 7.5'I @-� 5,1 0- t 13.5' 11' O I z 1 I i GARAGE GARAGE LU I _ 16 - - I z 16- - 1 0 z 15' 0 1 10 18' 1 ' SIDEWALK FRONT C SIDEWALK FRONT PARKWAY PARKWAY V STREET @ STREET Q G d E t V R Y Q Highland Hills Modified North Plan 14 Padket Pg.341 EXHIBIT 10 SFD COURTYARD LOT LAYOUTS The following lot layouts show single family detached homes that are characterized by clusters of eight or less single family detached homes that can front on an alley or street with private rear yards. All setbacks are minimums. N O LO V- ALLEY Z FRONT CL I rn Q I I N I = Q Y 3.5' u 0 CC Q I W 4 o .9 w Z CC .. � z to 5" 00 . v 10 i N w a; REAR MIN. o CC I REAR MIN. I `° a I 0 ' o Z I cal cc -a y • I O ;,_ W 11' 3.5' I z 0 GARAGE cc W I E cc n, I FRONT Q ALLEY :. c m E s U fQ r w Q Highland Hills Modified North Plan 15 Packet P9.342 6.A.i EXHIBIT 11 SFA TOWNHOUSE LOT LAYOUTS The following lot layouts show Townhouse Condominium which are characterized by clusters of ten or less, single family attached homes fronting on an alley with side entrances from the alley or a paseo. All setbacks are minimums. N O LO i r 15' O Z 11' <V i d M Q REAR 10' N PRIVACY i ........ ..... ._._...... 20- ........ ALLS .. ............. ........ _ 10' REAR > Y I t_� 3 v . w ¢ of _ 7.5' I- LO O M � � O 15' N O GARAGES r Wo 11 Z GARAGES Z r _ r w f=0 Z in FRONT S O ALLEY Z z z O 4- `n FRONT w -- -- ----- -- -- - o O w 2 � � Lf') GARAGES i GARAGES = 11' N E 7.5' w Q 15' � � d .n ¢ i w ......... 10...............................REAR 0.. .............. ........ Q _PRIVACY WALLS Highland Hills Modified North Plan 16 Packet Pg.343 EXHIBIT 12 SFD GREENCOURT LOT LAYOUTS how the Greencourt Condominium which is characterized b The following lot layouts s Y clusters of eight or less alley-loaded, single family detached homes. Homes may front on a public street, or common paseo. All setback are minimums. FRONT o ' _ ... 9' P........1 ASEO o Z Q U-1 ¢ �'Q CL Y C' W Ln a 2 l cx-, 0 to 5' w = 3.5' GARAGE I c w Z .. Q M -1 LO REAR v r 0 N O ALLEY _ iv REAR a. I ......... Z __j Q V'. M 0 I j ER � Y I 'i3 ~ ¢ , W 3.5 cc Imo— W �n c 4 W O cl- Q I c r_ CC w d W Y o I Q W = Cr 11' I E U SIDEWALK FRONT a PARKWAY STREET Highland Hills Modified North Plan 17 Packet?g.344 V. STREET SECTIONS The following sections set forth the public street standards that apply to the Modified North Plan. EXHIBIT 13: STREET SECTION KEY MAP N O LO O Z CL vv 00 Nr i 1 l \ O i t1 Y s 1 o x• t C m t U Q C d U R a+ w Q Highland Hills Modified North Plan 18 Packet Pg. 345 6 A:i EXHIBIT 14: STREET SECTIONS 1-3 9 I / xo' i 11' 20' 20' P 4'1 —4 4 1-"— N O LO * O V ppX77 ...-- -•---� Z �ry�' Irrr_ PARKWAY LOOP STREET PARKWAY a COLLECTOR STREET-701 R1 W N.rs. SECTION 1' o c RIW LO ti ■ 2S' 00 16, 7' T- r� r CD % N p +t �I 4' SIDEWALK 4' SIDEWALK o. ALTERNATIVE LOCAL STREET-SO'R/W AT DEVELOPERS DISCRETION z N.rs. a SECTION 2 :a R/W R,/w �° I 18, r 48' 10.-5'1 SIDE NW K SIDEWALK 6' PARKWAY M SE 6' PARKWAY 70 BE E UANJI`AIWD BY HO4 OR LUD 11WAINED BY HOA OR LMD LOCAL STREET-57'R!W a SECTION 3 N.T..1~ Highland Hills Modified North Plan 19 Packet Pg.346 6.A.i EXHIBIT 15: STREET SECTIONS 4-6 O LO 6 R ACCESS FROM E W-DL Q N.T.S. Q N SECTION 4 � c ca ai R/W RI W LO M 1 O 1 a 1 N EASEM M o UNE LINE �I 1 1 = FL PRIVATE ROAD 0 Z (NO PARKING BOTH SIDES) N.T.S. `= 0 SECTION 5 � d E R/W I F R/W -� .r 36' 12' Q 18 2 0 fC qty G� ORCHA RD ROA R LOCAL STREET-60'RIW N.0 SECTION 6 Highland Hills Modified North Plan 20 Packet Pg. 347 EXHIBIT 16: STREET SECTIONS 7-9 48' EXONG 12l 18, o Z �a CL sz Q rn ARROYO VISTA DRIVE _ LOCAL STREET-60'RIW N.TS. SECTION 7 = n RIW I R/W v 32' 1W N � r r L w O NE Z HIOHLANAAVENUE H16HWAY- 100"" 0 2 N.TS. Ln SECTION!8 RIW � A Rey t c� 1A ,fit f .+ 1 t C E y; LOOP STREET-ENTRY LOCAL STREET-96' SECTION 9 N.F.S. Highland Hills Modified North Plan 21 Packet Pg.348` 6.A.j a� Q. Q 'x C a� HIGHLAND HILLS PROJECT: LO ti EVALUATION OF MINOR MODIFICATIONS CRITERIA AND ENVIRONMENTAL IMPACTS FOR THE MODIFIED NORTH PLAN / TTM E Y E C 0 L W Prepared for: CD Y �L City of San Bernardino 300 North "D" Street o San Bernardino, California 92418 0 L 0 Prepared by: 4- 0 Tom Dodson & Associates o 2150 North Arrowhead Avenue San Bernardino, California 92405 0 (909) 882-3612 w x C CU T i September 2014 Y E U Y Y Q C d E U f4 Y Y Q Packet Pg. 349 Table of Contents CL CL |nbnducUon----------------------------------------.. l General Land Use Evaluation of Minor Modification Criteria................................................. 3 =' .. Environmental Issues LO CO 1. Aesth8Uca-------.--------------------------' 0 2. Agricultural and Forestry Resources................................................................ h 3. Air Quality........................................................................................................ 0 CL 4. Binlooica| Ranouroee ----------------------------- M 7 5. CuKuna| Reaouroae ------------------------------ 0. Geology and Soils............................................................................................ 7 7. GreenhoueaGones/C|imnoteChonge --------------------- 7 8. Hazards and Hazardous Materials................................................................... 7 8. HvdrokonvandVVoterQuaUv------------------------- 8 10. Land Use and Planning.................................................................................... O � 11. Mineral Resources........................................................................................... S `o 12. Noisa------------------------------------- S m 13. PopubaUonondHouong---------------------------' Q 14. Pub|inGenvicea-------------------------------- 9 15. RecreaUon----------------------------------. 9 10. Transportation /Traffic..................................................................................... 10 17 Utilities ------------------------- 10 � -'-'-- 18. Mandatory Findings of Significance ---------------------' 10 TABLES 0 Table Highland Hills Comparison Table..................................................................... 3 ATTACHMENTS Attachment Second Addendum = Attachment Modified North Plan Attachment 3 Modified TTK4 Attachment TTM for Approved North P|on/TTK4 F421-000-1267332.1 "� Introduction ° a Q Q The Highland Hills Specific Plan (HHSP) has a long and convoluted history with the County of San Bernardino and the City of San Bernardino. The original development was proposed in 1975 and was subsequently rejected in its original iteration. The project site, which encom- passes approximately 543.5 acres, was subsequently annexed into the City of San Bernardino s and the HHSP was approved by the City. Litigation ensued (Highland Hills Homeowners Association v. City of San Bernardino) and a Settlement Agreement was subsequently approved by the City in May 1989 and also approved by the San Bernardino County Superior Court on LO July 3, 1989. A May 2, 1992 Addendum and January 15, 1993 Supplement were approved by the Superior Court on February 5, 1993. These settlements are collectively termed the 1989 Settlement Agreement. Q A "Second Addendum" to the 1989 Settlement Agreement was subsequently approved by the San Bernardino County Superior Court on March 26, 2001. The Second Addendum authorized development of the North Plan under the HHSP. The North Plan was vested pursuant to the 1989 Settlement Agreement and further clarified pursuant to the Second Addendum. A copy of o the Second Addendum is provided as Attachment 1 of this document. The North Plan allows up to 1,730 residential units to be developed on the 543.5-acre HHSP site. However, Tentative w Tract Map (TTM) No. 15731 was approved by the City of San Bernardino Planning Commission = in 2001, for development of 1,516 dwelling units on the project site. Thus, under existing vested entitlements, the property could be developed with 1,516 dwelling units and other authorized features, including a golf course and related commercial activities. L U The current property owner (First American Title Insurance Company, sometimes hereafter referred to as FATCO) is proposing to make minor modifications to the North Plan and TTM ° cu No. 15731 (sometimes hereafter referred to collectively as the Approved North Plan/TTM). The proposed minor modifications (sometimes hereafter referred to collectively as Minor Modification) reflect the fact that 13 years have passed since the Second Addendum was �° approved and the market for residential dwelling units has changed since 2001. The process for o making minor modifications to the Approved North Plan/TTM is outlined in Section 1.4 of the Second Addendum. Because Section 1.4 is critical to the evaluation performed in this w- document, it is cited at length below (in the following text RSA refers to Rancho San Andreas 0 Company, Inc., the property owner at the time). ° w ° Except as otherwise provided in this paragraph 1.4, no amendment or waiver of any term or provision in this Second Addendum shall be binding on the City unless and until it has been w approved by the Common Council, or on RSA unless and until it has been executed by RSA. x Without limiting the effect of the foregoing, the City and RSA acknowledge that the passage of time may demonstrate that modifications are necessary or appropriate regarding the details of s each party's performance pursuant to the Entitlements. Because the City and RSA wish to retain flexibility regarding the details of their performance, they agree that, under the circum- stances described below, minor modifications to the Entitlements may be effectuated through t° operating memoranda which are approved by the Director of Development Services, or the holder of any successor position ("Director'). co Minor modifications ("Minor Modification(s)') shall be deemed to be modifications which are Q requested by RSA from time to time and which result in development which is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the d Highland Hills Property pursuant to the North Plan including, without limitation, (a) fewer 1 a Packet Pg. 351 residential dwelling units, (b) less gross leasable commercial space, (c) changes in improve- Q. CL ment locations which are equal to or less intrusive than the location of improvements under the North Plan, (d) enhancement of architectural, landscape and hardscape improvements, (e) more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (0 other modifications which the Director determines are similar to the foregoing, or any combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the modification is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan). CO M In addition, a Minor Modification shall be deemed to be any modification resulting from a decision by the Director in any other case where the Director is authorized in this Second Addendum to act,provided, however, that nothing in this Second Addendum shall be deemed to C authorize the Director to act where state law requires the City Engineer to act. In those cases, the City Engineer shall act in accordance with the applicable provisions in this Second Addendum. Any modification in the North Plan which the Director determines does not qualify as a Minor Modification, shall be referred by the Director to the Planning Commission and all o decisions of the Planning Commission in response to any such referral shall be appealable to 7 the Common Council in accordance with the provisions of the Municipal Code which are in = W effect at the time of the appeal. If the applicable decision maker determines that a modification = in the North plan is a Minor Modification, then the decision maker shall be obligated to approve the Minor Modification in the North Plan. a� Y The current property owner, First American Title Insurance Company, is proposing modifications to the Approved North Plan and TTM 15731 prior to initiating development of the project site. FATCO has requested that Tom Dodson & Associates evaluate the proposed modifications to the Approved North Plan/TTM to verify that they conform with the definition of "Minor Modifications" contained in the Second Addendum, including with regard to meeting the California Environmental Quality Act (CEQA) requirements that the future development must be 0 equal to or less intense than the Approved North Plan/TTM. To accomplish this, the modified `o North Plan and modified TTM (sometimes hereafter referred to collectively as the Modified North Plan/TTM) are summarized below; then, a comparative analysis of potential environ- mental impacts of the Modified North Plan/TTM as compared to the Approved North Plan/TTM ° is presented. The analysis will focus on the six Minor Modification criteria ("a" through 'T') stated o in the Second Addendum and presented in the preceding paragraphs. CU CU FATCO has compiled a modified North Plan and a modified TTM 15731. A copy of the Modified W North Plan and the Modified TTM are provided as Attachments 2 and 3 (respectively) of this document. A copy of the TTM for the Approved North Plan/TTM is provided as Attachment 4 of = this document. The following table (Table 1) provides a comparison between the Approved North Plan/TTM and the Modified North Plan/TTM. c a� U Y Y Q Y _ U Y / Q Packet Pg. 352 Table 1 a HIGHLAND HILLS COMPARISON TABLE Q N Approved TTM Modified TTM Percent Reduction Total Dwelling Units 1,516 695 -54% Housing Types*** Single-Family Detached 463 270 -42% _rn Single-Family Attached Apartments 566 0 -100% co Resort Condominiums 287 0 -100% Senior Condominiums 200 0 -100% Condominiums 0 225 Tri-Plexes 0 100 1° Detached Condominiums 0 100 a E Total Single-Family Attached 1,053 425 m Commercial Uses = E Gas Station, Food Mart 1.5 ac 0 -100% _ Executive Style Golf Course 67.6 ac 0 -100% o Parks w Neighborhood Parks 6.6 ac 3.8 ac Pocket Parks 2.8 ac Hilltop Park 2.7 ac L 9.3 ac +41% L Project Area 543.5 ac 543.5 ac — U N Total Disturbed Area 345.0 Ac 193.1 ac -44% o Gross Density 63.5% 35.5% -54% v Earthwork 10 million cy 3.5 million cy -65% .a Flood Control Provisions Golf Course Solution Engineered Solution — 0 Impact to Jurisdictional Streams 1.7 ac 1.3 ac -24% C Impact to Jurisdictional Wetlands 15,887 sf 13,321 sf -16% S Traffic, Daily Trips* 12,212 5,760 -53% o Students, K-12** 810 417 -49% r_ 0 R Notes: * Based on rates of 10 ADT per SFD unit and 7.2 ADT per SFA unit. ** Based on student generation factors of 0.6 students per SFD&SFA and 0.1 students per senior unit. *** Housing types,or product mix,shown on this table are proposed and could change in accordance with the w development standards set forth in the Modified North Plan, once approved. However, under no T circumstances can the total number of dwelling units exceed 695 units per the requirement of the Modified North Plan. Therefore, this analysis assumes that 695 dwelling units will be constructed. In the event that -a fewer units are ultimately mapped,the environmental impacts will be even less that those discussed here, provided that the final map is in substantial conformance to the Modified TTM,once approved.Therefore if s fewer than 695 units are ultimately mapped, a minor modification to the Modified North Plan/TTM would not be necessary. _ cfl a=i General Land Use Evaluation of Minor Modification Criteria ;_ The data in Table 1 indicate that the proposed development at the project site has been Q substantially reduced in the Modified North Plan/TTM. In particular, the number of units has 0 been reduced by 54%, with all of the apartment units being eliminated; the total area of d disturbance has been reduced by 44%; and perhaps more importantly the estimated volume of E 3 a Packet Pg.353 6.A.j earthwork has been reduced by 65%. All proposed development has been eliminated from the a 0. northern, higher elevations of the project site thereby protecting the visual integrity of this important ridge line. The residential dwelling mix has been modified with a relative increase in single-family detached units by about 8% when comparing the ratio of SFD units to SFA units. v The following findings regarding criteria "a" through 'T' for a Minor Modification are presented below. °' x (a) fewer residential dwelling units LO n_ The Modified North Plan/TTM reduces the number of residential dwelling units from 1,516 to a Cn maximum of 695. The Modified North Plan/TTM meets this criterion for a Minor Modification. Q. E (b) less gross leasable commercial space a� The Modified North Plan/TTM eliminates the only commercial space on the Approved North Plan/TTM, a gas station and food mart. The Modified North Plan/TTM meets this criterion for a a Minor Modification. L _ W (c) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan o ca Under the Modified North Plan/TTM, all development has been removed from the northern portion of the property. Development will be consolidated on the lower slopes and the v infrastructure required to support the Modified North Plan/TTM will be less intrusive than that c required for the Approved North Plan/TTM. The Modified North Plan/TTM meets this criterion ° for a Minor Modification. v (d) enhancement of architectural, landscape and hardscape improvements �° L O The Modified North Plan/TTM is neutral on this topic for the following reasons. First, because E development under the Approved North Plan/TTM is being reduced in size, the overall area allocated to landscaping and hardscaping will be comparably reduced. Given the offsetting ° _ retention of native/natural landscape on the northern portion of the project site, this reduction is o not considered an adverse impact. Second, the project-related architectural, landscape and hardscape improvements within the area of the project site that will be developed will either be better or equivalent to those identified in the Approved North Plan/TTM. In addition, design W guidelines, which will incorporate current architectural design standards, continue to be required M under the TTM conditions prior to issuance of the first building permit. Therefore, the Modified = North Plan/TTM is deemed to meet this criterion for a Minor Modification. c s (e) more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology State regulations, such as those for energy efficiency and management of storm water runoff, a require more efficient mitigation measures and improved technology overall. The Modified North Plan/TTM will include water quality control basins, building energy requirements as 2 prescribed in the latest building code, and will meet all other requirements imposed by State and Q Federal agencies, such as the Regional Water Quality Control Board, California Department of 0 Fish and Wildlife and the Army Corps of Engineers. Because of these performance standards, U f0 4 Q Packet Pg. 354 6.A.j many of which did not exist at the time of development of the Approved North Plan/TTM, the Q Modified North Plan/TTM will meet this criterion for a Minor Modification. ¢ N Furthermore, a storm event in December 2010 resulted in lowland flooding and property damage, both on-site and off-site. The Approved North Plan/TTM recognized the flood potential but did not address it in a positive manner. Instead, a passive solution was proposed in which a s golf course would be constructed in the floodplain. It was thought that flooding could be contained within the golf course area. This was proven not to be the case in 2010 when severe flooding took place offsite on Highland Avenue and into the adjoining neighborhood on Summertrail Place. The Modified North Plan/TTM calls for the lower portion of Cook Creek, CO where the flooding occurred, to be routed into a RCP and concrete lined channel. An additional desilting basin is also included. These changes constitute "more efficient mitigation" measures and result in the Modified North Plan/TTM meeting this criterion for a Minor Modification. (t) other modifications which the Director determines are similar to the foregoing, or r any combination of the same (even if, in such combination, some elements intensify and C other elements deintensify, but in the aggregate the modification is equal to or less o intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan) w The one component of the Modified North Plan/TTM which has a potential negative effect is the o elimination of the golf course. Although the golf course was in a floodplain, it also acted as a buffer between the proposed higher density project components, primarily apartments, and the single-family residential units to the east. Under the Modified North Plan/TTM, the golf course ci has been eliminated and this change is considered to represent a net loss to the project and c community. However, when considered in the context of the whole project, this change is offset ° by four important benefits resulting from the Modified North Plan/TTM. First, the Modified North Plan/TTM will incorporate positive flood control solutions. Had the Approved North Plan/TTM been constructed as contemplated in 2001, nothing would have prevented the downstream 0 flooding of Highland Avenue and Summertrail Place. Second, the northern portion of the project o site will remain undeveloped under the Modified North Plan/TTM because the residential development footprint has been reduced in size and shifted to the lower portions of the project site. Third, the development proposed for the golf course area under the Modified North c Plan/TTM is proposed to be medium density single-family residential development, which will be ° compatible with the adjacent single-family residential development. Fourth, the Modified North Plan/TTM contains a park on Arroyo Vista Drive, providing a substantial community benefit to the existing homes to the east as well as providing some buffer. In accordance with this w criterion, the Modified North Plan/TTM, in the aggregate, is equal to or less intense from the standpoint of impacts under CEQA, than the Approved North Plan/TTM, and therefore, will meet = this criterion for a Minor Modification. Based on the above analysis, the Modified North Plan/TTM being submitted to the Director of Development Services of the City of San Bernardino qualifies as a "Minor Modification" of the Approved North Plan/TTM, within the meaning of the Second Addendum. a� The general land use evaluation presented above demonstrates that the Modified North Plan/TTM qualifies as a Minor Modification. The remaining issue to be addressed is whether c the specific effects of the Modified North Plan/TTM also meet the requirement that future Q development must be equal to or less intense than the approved development. An analysis of each specific CEQA topic, as listed in a standard Initial Study Environmental Checklist Form (Appendix G of the State CEQA Guidelines), is presented below. 5 Q Packet Pg. 355 Analysis of CEQA Environmental Issues Related to the Modified North Plan/TTM: Q Q 1. Aesthetics: The footprint of the Approved North Plan/TTM has been modified in two ways. First, the golf course has been eliminated as well as residential dwelling units previously envisioned for the northern portion of the project site. As a result of this modification, the amount of grading required to support the Modified North Plan/TTM has been reduced by approximately 65%, which is a major reduction in landscape modification on the project site. As indicated in the preceding discussion of general criteria used to evaluate whether the proposed changes qualify as a Minor Modification, the reduction of site modification LO area, retention of the natural landscape on the upper portion of the project site, and the development of the site in a more traditional residential subdivision model (through elimination of the golf course) will result in aesthetic impacts being considered a less overall adverse impact than the Approved North Plan/TTM. Q E 2. Agricultural and Forestry Resources: Aside from extensive cattle grazing in the past, the a project site has not been utilized for agricultural purposes in at least the past 50 years and C the site does not contain any forestry resource values. With a lack of either agricultural or o forestry resource values, neither the Approved North Plan/TTM nor the Modified North > Plan/TTM would cause any adverse effects to such resources. Nevertheless, the Modified w North Plan/TTM does reduce the overall site development footprint by 44% (refer to Table 1) and retains more of the existing coastal sage scrub and chaparral habitat on the project co site than the Approved North Plan/TTM, which can be considered a minor benefit from the c° L standpoint of any future agricultural or forestry resource values being identified on the °= project site. Thus, the Modified North Plan/TTM will result in agricultural and forestry v impacts being considered a less overall adverse impact than the Approved North c Plan/TTM. ° M U 3. Air Quality: Compared to the Approved North Plan/TTM, the Modified North Plan/TTM will substantially reduce both construction and future occupancy emissions of air pollutants. 0 This finding is based on the reduced number of units (54% reduction); reduction of future o trip generation from the project site (53%); reduction of future energy consumption (new building code energy efficiency requirements); and the substantial reduction in earthwork 4- (65%) required to construct the building pads for the Modified North Plan/TTM. The c construction of fewer units and disturbance of less overall area (44% reduction) will also 0 reduce the construction activities associated with installing roads, infrastructure and housing. Based on these data, overall project emissions should be less than 50% of that forecast for the Approved North Plan/TTM during both construction and future occupancy. W Note that all air quality mitigation measures identified for the Approved North Plan/TTM A must still be implemented under the Modified North Plan/TTM as the type of activities on = the project site remain the same, but are just reduced compared to the Approved North Plan/TTM. Thus, the Modified North Plan/TTM will result in air quality impacts being = considered a less overall adverse impact than the Approved North Plan/TTM. 4. Biological Resources: The same reductions in project size and scope summarized for air quality above apply to the biological resources impacts. Of particular importance, the total development footprint on the project site as a result of the Modified North Plan/TTM has been reduced by 44% (from 345 acres to 193.1 acres). Thus, of the 543.5-acre site only o 193.1 acres will be disturbed for development under the Modified North Plan/TTM. Equally important to the overall reduction in area to be impacted, the area proposed for development under the Modified North Plan/TTM will be focused on the lower slopes of E the project site which is the most highly disturbed area. The less disturbed northern 6 Q Packet Pg. 356 6.A.j portion of the project site will be retained. The impact to jurisdictional waters of the United Q. States and State of California will be reduced from 1.7 acres to 1.3 acres, a 24% Q reduction. A smaller, but still important reduction in impacts to jurisdictional wetlands 2 (15,887 square feet compared to 13,321 square feet, a 16% reduction), will also result from implementing the Modified North Plan/TTM. Based on these data, the overall impact to biological resources will be reduced by the Modified North Plan/TTM as compared to the Approved North Plan/TTM. Note that all biological resource mitigation measures 2) identified for the Approved North Plan/TTM, which are not in conflict with the Modified North Plan/TTM, must still be implemented under the Modified North Plan/TTM, as the u CO type of activities on the project site remain the same, but are just reduced compared to the Approved North Plan/TTM. Thus, the Modified North Plan/TTM will result in biological resources impacts being considered a less overall adverse impact than the Approved North Plan/TTM. E 5. Cultural Resources: According to the HHSP EIR, no substantial cultural resources were discovered on the project site. Thus, the overall reduction in size and scope of develop- E ment under the Modified North Plan/TTM does not substantially reduce the potential c cultural resources impacts. However, the Modified North Plan/TTM does reduce the potential for exposure of subsurface resources based simply on the overall reduction in the w project footprint. Mitigation required to address the accidental exposure of subsurface = resources must still be implemented under the Modified North Plan/TTM. Even though not considered as a "substantial" cultural resource, the Modified North Plan/TTM will locate a park in and around the area where there are two building v foundations of a historic nature (constructed between 1938 and 1959). The Approved North Plan/TTM called for removal of these resources to allow construction of the golf ° course. Furthermore, a portion of the historic Plunge Creek Ditch (pre-1938) will be retained and incorporated into a linear park and trail system within the Modified North Plan/TTM. Thus, the Modified North Plan/TTM will result in cultural resource impacts 0 being considered a less overall adverse impact than the Approved North Plan/TTM. o c 6. Geology and Soil Resources: The project site is very complicated from a geotechnical hazards standpoint. A very lengthy set of mitigation measures were incorporated into the 0 Approved North Plan/TTM to mitigate the geotechnical and soil hazards to an acceptable 2 level of impact. The Modified North Plan/TTM substantially reduces the exposure to onsite geotechnical hazards by eliminating development of the northern portion of the project site, which is located near the second trace of the San Andreas Fault. Thus, the overall w exposure of the Modified North Plan/TTM to geotechnical hazards will be substantially 2 reduced compared to the Approved North Plan/TTM. A new geotechnical report (dated = 2014) has been prepared by Leighton and Associates for the Modified North Plan that addresses the site conditions and mitigation measures. Note also that all geology and soil .c mitigation measures identified for the Approved North Plan/TTM, which are not in conflict with the Modified North Plan/TTM or Leighton report, must still be implemented under the Modified North Plan/TTM as the type of activities on the project site remain the same, but C° are just reduced compared to the Approved North Plan/TTM. Thus, the Modified North a Plan/TTM will result in geology and soil resource impacts being considered a less overall adverse impact than the Approved North Plan/TTM. ;a w Q 7. Greenhouse Gases/Climate Change: Please refer to the analysis of air quality under topic 3 above. Although greenhouse gases/climate change issues are a relatively new topic under CEQA, the potential for greenhouse gas (GHG) emissions and the subsequent m 7 a Packet Pg. 357 6.A.j effect on climate change will be reduced by about 50% compared to the Approved North a Plan/TTM as a result of implementing the Modified North Plan/TTM. This reduction in both construction generated and operational GHG emissions is considered to be a net benefit of implementing the Modified North Plan/TTM. Thus, the Modified North Plan/TTM will x result in greenhouse gases/climate change impacts being considered a less overall adverse impact than the Approved North Plan/TTM. 2) 8. Hazards and Hazardous Materials: There is no identified historic contamination of the project site and any future hazards are associated with discharges of fertilizers and LO pesticides related to future uses. The elimination of a maintained golf course under the Modified North Plan/TTM reduces this future hazard compared to the Approved North Plan/TTM. Further, the reduction in the overall number of residential units reduces the amount of runoff and potential for small quantities of hazardous materials to be incorporated into onsite runoff. The reduction in units also reduces the overall amount of — household hazardous wastes that may be generated from the project site under the Modified North Plan/TTM. Thus, the Modified North Plan/TTM will reduce overall potential for use of hazardous materials on the project site and the generation of hazardous wastes o or other hazards. Note that all hazards and hazardous material mitigation measures > identified for the Approved North Plan/TTM, which are not in conflict with the Modified r- w North Plan/TTM, must still be implemented under the Modified North Plan/TTM as the type = of activities on the project site remain the same, but are just reduced compared to the Approved North Plan/TTM. Y a� 9. Hydrology and Water Quality: The fundamental alteration under the Modified North v Plan/TTM is the 44% reduction in disturbed areas and the 65% reduction in earthwork. 0 Under the Modified North Plan/TTM, the amount of impervious surface on the project site will be reduced about 50%. Thus, the surface runoff from the project site will be substan- tially reduced and the area in which water quality management measures will be required, will also be comparably reduced. The flood control management facilities will be shifted �° from the golf course to engineered solutions that meet current MS4 requirements o established by the State, Regional Water Quality Control Boards and the City of San Bernardino. The end result of storm water and water quality management must be the 4- same under the Modified North Plan/TTM as it is under the Approved North Plan/TTM. ° c However, because the total volume of urban runoff is substantially reduced under the o Y Modified North Plan/TTM, the Modified North Plan/TTM will reduce overall hydrology and water quality impacts. Note that all hydrology and water quality mitigation measures identified for the Approved North Plan/TTM, which are not in conflict with the Modified W North Plan/TTM, must still be implemented under the Modified North Plan/TTM as the type of activities on the project site remain the same, but are just reduced compared to the = Approved North Plan/TTM. s 10. Land Use and Planning: The Modified North Plan/TTM proposes a substantially reduced project on this complex project site. The removal of development from the upper portions of the project site represents a substantial reduction in visual intrusion into the San Bernardino Mountains and creates a greater balance between development and retention of open space on the project site. The Approved North Plan/TTM was found to be consistent with the General Plan and the Modified North Plan/TTM is also consistent o Y because the total number of units has been reduced and the overall development footprint Q has also been reduced. The proposed commercial uses associated with the golf course have been eliminated under the Modified North Plan/TTM, which further reduces any potential conflicts with the City General Plan. Overall, the Modified North Plan/TTM will be m Y 8 Packet Pg. 358 more consistent with the City General Plan than the Approved North Plan/TTM. With Q regard to adjacent land uses, the elimination of development on the northern portion of the ¢ project site reduces conflicts with the adjacent San Bernardino National Forest lands and the replacement of the apartment uses with single family attached and detached units in the lower slopes of the project are more consistent with land uses to the east and south. Overall, the Modified North Plan/TTM will have less overall land use conflicts with the existing adjacent land uses than the Approved North Plan/TTM. i 11. Mineral Resources: The project site has not been identified as containing any mineral LO resource values and no historic mineral resource exploitation has occurred on the project co site. v, With a lack of mineral resource values, neither the Approved North Plan/TTM nor the a Modified North Plan/TTM would cause any adverse effects to such resources. However, E the Modified North Plan/TTM does reduce the overall project site development footprint by CD 44% (refer to Table 1) and retains more of the existing project site in an undeveloped E status, which can be considered a minor benefit from the standpoint of any future mineral o L. resource values being identified on the project site. W 12. Noise: The amount of noise generated by a project depends of the type and amount of activity and the potential impact of project-related noise depends on how close the o sensitive noise receptors are located to the site. The amount of activity on the project site from the Modified North Plan/TTM, during both construction and occupancy, will be substantially reduced as compared to the Approved North Plan/TTM. The activities for U residential development will be closer to the existing sensitive noise receptors, but the substantial reduction in construction activity and traffic from the Modified North Plan/TTM °- will reduce overall noise impacts compared to the Approved North Plan/TTM. Due to the substantial reduction in traffic (53% reduction with the Modified North Plan/TTM), offsite noise impacts will also be reduced compared to the Approved North Plan. Note that all �0 noise mitigation measures identified for the Approved North Plan/TTM must still be o implemented under the Modified North Plan/TTM as the type of activities on the project E site remain the same, but are just reduced compared to the Approved North Plan/TTM. 4- 0 _ 13. Population and Housing: The Modified North Plan/TTM will reduce the site population and 0 r housing by an estimated 54%. Thus, the population and housing impacts from the Modified North Plan/TTM within the City will be reduced compared to the Approved North Plan/TTM. No mitigation measures were identified for implementation in connection with w this specific issue. x 14. Public Services: The Modified North Plan/TTM eliminates development from the most severe fire hazard areas on the project site. This fact, combined with the reduction in the number of units by 54%, will reduce the overall demand under the Modified North Plan/TTM for public services by a substantial amount compared to the Approved North Plan/TTM. Overall public service demand, including a 49% reduction in demand for school capacity, will be less than the Approved North Plan/TTM. Extensive mitigation, a� particularly for wildland fire hazards, identified for the Approved North Plan/TTM, which is not in conflict with the Modified North Plan/TTM, must still be implemented under the v Modified North Plan/TTM as the type of activities on the project site remain the same, but Q are just reduced compared to the Approved North Plan/TTM. d 9 a Packet Pg.359 6.A.j 15. Recreation: The Approved North Plan/TTM contained an estimated 6.6 acres of parks for a CL the 1,516 residential units proposed within the project. The Approved North Plan/TTM also included a golf course that encompassed approximately 67.6 acres of the project site and about 198 acres of open space for passive recreation, such as hiking and biking on trails. The Modified North Plan/TTM includes 3.8 acres of neighborhood parks, 2.8 acres of pocket parks, and 2.7 acres for a hilltop park for a total of 9.3 acres of park for the 695 residential units. In addition, the attached product types will contain internal common 2M usable outdoor living space in accordance with the development standards detailed in the Modified North Plan. The amount of parks is greater under the Modified North Plan/TTM in LO Co absolute comparison and when considered on a per person or per unit basis. The Modified North Plan/TTM provides .013 acre of park area per unit compared to the Approved North Plan/TTM which provided only .004 acre of park area per unit. This is a 300% increase of park space per unit under the Modified North Plan/TTM. Overall the E CL type of recreation is different (golf course compared to passive recreation area) under the — Modified North Plan/TTM and the overall open space and recreation area is greater under the Modified North Plan/TTM as compared to the Approved North Plan/TTM. The C enhanced open space with trails under the Modified North Plan/TTM is considered o sufficient onsite recreational resources to offset the previous recreational benefit of the golf course under the Approved North Plan/TTM. Thus, the Modified North Plan/TTM will w result in recreation impacts being considered a less overall adverse impact than the Approved North Plan/TTM. o a� 16. Traffic and Circulation: The amount of traffic generated by a project depends of the v number of residential units and future occupying population. The amount of trips c generated from the project site will be reduced by 53% under the Modified North Plan/TTM CU (12,212 trips from the Approved North Plan/TTM and 5,760 trips from the Modified North Plan/TTM). Further, by reducing the overall grading and construction activities under the Modified North Plan/TTM, construction traffic will be reduced by about 65% compared to �° the Approved North Plan/TTM. Thus, traffic generation from the Modified North Plan/TTM o project site will be substantially reduced compared to the Approved North Plan/TTM. Due to the substantial reduction in traffic (53% reduction with the Modified North Plan/TTM), 4- offsite circulation system impacts from the Modified North Plan/TTM will also be ° substantially reduced compared to the Approved North Plan/TTM. Note that all traffic and o circulation system mitigation measures identified for the Approved North Plan/TTM, which are not in conflict with the Modified North Plan/TTM, must still be implemented under the Modified North Plan/TTM as the type of activities on the project site remain the same, but w are reduced when compared to the Approved North Plan/TTM. y 17. Utilities and Service Systems: The Modified North Plan/TTM will substantially reduce both the number of units and the development area with consequent reductions in demand for = utilities and service systems. Overall demand for utilities and other service systems is estimated to be about 54% compared to the Approved North Plan/TTM. Further, the elimination of the golf course under the Modified North Plan/TTM will greatly reduce demand for water since this facility will no longer require substantial irrigation water. a Extensive utility and service system mitigation identified for the Approved North Plan/TTM must still be implemented under the Modified North Plan/TTM as the type of activities on 2 the project site remain the same, but are just reduced compared to the Approved North Q Plan/TTM. c a� E ca 10 Packet Pg. 360 18. Mandatory Findings of Significance: This topic is generally used to address the overall a perception of potential impacts of a project based on the evaluation presented in the Q preceding 17 individual issue discussions. In this case, the threshold used for evaluation is whether implementation of the Modified North Plan/TTM would result in greater impacts than implementation of the Approved North Plan/TTM. As previously stated, the Approved North Plan/TTM is an approved project within the City of San Bernardino. The above s comparative analysis documents how the Modified North Plan/TTM will result in less adverse impacts on the environment than the Approved North Plan/TTM. Although the golf course envisioned in the Approved North Plan/TTM will be eliminated, the analysis LO demonstrates that elimination of the golf course can be considered a reasonable trade-off for the inclusion of a positive flood control system, the elimination of a non-compatible land use (the apartments), the elimination of development on the northern portion of the project site and the retention of substantial additional open space on the project site Given that a fewer impacts would result from the Modified North Plan/TTM, both on and off-site, the logical conclusion is that the effects of the Modified North Plan/TTM on the environment will be less intense than the effects of the Approved North Plan/TTM. Thus, the Modified North Plan/TTM qualifies as a Minor Modification under the Second Addendum and should o be authorized for implementation by the Director of Development Services as required under the Second Addendum. w c R L Y L U N C R V w O L O C O C O lC O as W N 2 C c0 t t0 Y C d E t V t0 Y Y Q C d s V l6 Y 11 a Packet Pg.361 AGENDA ITEM: #S PLANNING COMMISSION STAFF REPORT CITY OF SAN BERNARDINO PLANNING DIVISION CASE: Appeal of Community Development Director decision approving Minor Modifications to Tentative Tract Map 15731 and the North Plan for the "Highland Hills Project." (Appeal No. 15-01) N (Reconsideration of matter previously heard on February 18,2015) ° HEARING DATE: April 15, 2015 6 z WARD: 4 a c. Q PROPERTY OWNER: APPELLANT: First American Title Insurance Company James Nunn and Highland Hills Homeowners = 20201 SW Birch Street, Ste. 155 c/o Briggs Law Corp. _ Newport Beach,CA 92660 99 East"C" Street, Suite 111 Upland,CA 91786 ° REQUEST/LOCATION: LO Appeal of Community Development Director decision approving Minor Modifications to Tentative Tract Map No. 15731 dated August 21, 2014, and the North Plan for the "Highland N Hills Project" dated November 10, 2014, located east of City Creek and north of Highland Avenue in the Highland Hills Specific Plan land use district. The Notice of Official Action (Attachment 1) was issued on December 30, 2014 and the appeal (Attachment 2) was filed on Q January 8,2015. This is a reconsideration of the item previously heard by the Planning Commission on February v 18,2015. a ENVIRONMENTAL FINDINGS: w ❑ Not Subject to CEQA ® Exempt from CEQA,Ministerial Section 21080 (b)(1)and 15268 ❑ No Significant Effects .2 ❑ Potential Effects,Mitigation Measures and Mitigation Monitoring/Reporting Plan Q Y STAFF RECOMMENDATION: E That the Planning Commission uphold the December 30, 2014, decision of the Community Q Development Director and deny the appeal. PROJECT DESCRIPTION On July 28, 2014, a request was submitted by Hogan Edgcomb Consulting on behalf of First American Title Insurance Company for Minor Modifications to the Highland Hills project Packet Pg.362 Hearing Date: 04.15.15 Appeal 15-01—Appeal of Community Development Director Decision Page 2 pursuant to Section 1.4 of the Second Addendum to the P Jul 3 1989 Y , Highland Hills Homeowners Settlement Agreement dated March 26, 2001. In summary, the applicant was seeking the following minor modifications: • Reducing the number of residential dwelling units from 1,516 to 695 units; • Eliminating all commercially zoned property; • Reducing the total grading from approximately 10,000,000 cubic yards to approximately 3,500,000 cubic yards; c Ln • Reducing impacts to jurisdictional streams from 1.7 acres to 1.3 acres; • Reducing the impacts to jurisdictional wetlands from 15,887 square feet to 13,321 square Z feet; • Reducing the total projected daily vehicle trips from 12,212 to 5,760;and a • Eliminating the golf course and installing an engineered flood control system for storm Q water. T x BACKGROUND c m 2M The project known as "Highland Hills" encompasses approximately 543 acres in the northeast 3: corner of the City, east of Freeway 330 and north of Highland Avenue. The project has a long history with the City dating back over 30 years. Below is a brief project history: o • On December 20, 1982, the Mayor and Common Council ("MCC') approved the c Highland Hills Specific Plan 82-1 ("HHSP 82-1")and certified the Environmental Impact LO Report for the project. o • On July 1, 1985, the MCC amended HHSP 82-1 to allow construction of low and It moderate income housing units within the HHSP. 0 0 • On January 14, 1988, the Highland Hills Homeowners filed suit against the City seeking to stop the project. • On July 3, 1989, a settlement was reached allowing for construction of up to 1,730 v dwelling units and a Championship"Links" Golf Range. a • On February 5, 1993, the First Addendum to the 1989 Settlement Agreement was executed. Among other things, the First Addendum reduced the multi-family dwellings from 1,200 to 566 units. E • On March 26, 2001, a Second Addendum (Attachment 3) to the 1989 Settlement Agreement was executed. Among other things, the Second Addendum was intended "to Q once and for all clarify the terms and provisions of those previous agreements and documents..." d E • On April 17, 2001, the San Bernardino Planning Commission approved Tentative Tract U Map No. 15731, which allows for the development of 1,516 dwelling units including a w commercial,pad and golf course. a ANALYSIS OF REQUEST FOR MINOR MODIFICATION On July 28, 2014, a Minor Modification request was filed by Hogan Edgcomb Consulting representing the property owner. The request was filed under Section 1.4 of the Second Addendum to the 1989 Settlement Agreement, The Second Addendum, dated March 26, 2001, contemplates amendments to the Highland Hills project based upon the following criteria: Packet Pg.363 Hearing Date,04.15.15 Appeal 15-01—Appeal of Community Development Director Decision Page 3 Q "Minor modifications ("Minor Modification(s)") shall be deemed to be modifications which are requested by RSA [Rancho San Andreas Company Inc.] from time to time and which result in development which is equal to or less intense, from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan including, without limitation, (a)fewer residential units, (b) less gross leasable commercial space, (c ) changes in improvement o locations which are equal to or less intrusive than the location of improvements under the North Plan, (d) enhancement of architectural, o landscape and hardscape improvements, (e) more efficient mitigation z measures/conditions of approval resulting from advancement in scientific a knowledge, know how or improved technology, or(f) other modifications a CL which the Director determines are similar to the foregoing, or any < combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the modification is equal to or less intense from the standpoint of R environmental impacts under CEQA, than development of the Highland �► Hills Property pursuant to the North Plan)." ti LO co The table below briefly compares the originally approved Tentative Tract Map No. 15731 and the Modified Tentative Tract Map No. 15731 (Attachment 4). o HIGHLAND HILLS COMPARISON TABLE NO. 1 Ln 0 I Project Feature Approved TTM Modified TTM Percent Change C CL Total Dwelling Units 1,516 695 -54% Single family 463 270 -42% N Multi family 1,053 425 -60% a Commercial Acreage 1.5 ac. 0 -100% ti Park Acreage 6.6 ac. 9.3 ac. +41% Total Grading —10 million cubic yards —3.5 million cubic yards -65% Total Disturbed Area 345 ac. 193 ac. -44% Jurisdictional —1.7 ac. —1.3 ac. -24% a Streams Impacted Jurisdictional 15,887 sf. ---13,321 sf. -16% a Wetlands Impacted Traffic(avg.daily 12,212 5,760 -53% a trips) Q Stormwater Features Golf course solution I Engineered solution I n/a The companion document to the Modified Tentative Tract Map is the Modified North Plan, dated November 10,2014,(Attachment 5)which contains specific architectural and development standards that enact the TTM. As indicated in Table No. 1 above, the requested minor modifications reduce the overall project impact in all areas of environmental concern. Further, Packet Pg. 364 6.A.k Hearing Date: 04.15.15 Appeal 15-01—Appeal of Community Development Director Decision Page 4 the determination that the revised project meets the criteria in Section 1.4 of the Second Addendum and qualifies as a Minor Modification is outlined below: (a) fewer residential units: The approved Tentative Tract Map ("TTM") permits 1,516 dwelling units and the Modified TTM permits a maximum of 695 dwelling units. This is a 54% reduction in total units. The Modified TTM/North Plan meets this criterion. o LO T (b) less gross leasable commercial space: d z The approved TTM allowed 1.5 acres of commercial development. The Modified TTM and 0 d CL North Plan eliminates all commercial acreage.This criterion is met. a a N (c)changes in improvement locations which are equal to or less intrusive than the location of s improvements under the North Plan: _ By reducing the number of units and reducing the total grading by approximately 65%, the overall footprint and corresponding environmental impacts have been significantly reduced. Development and grading have been confined to the lower slopes. Therefore, the infrastructure n necessary to serve the project has been reduced and less intrusive. This criterion has been satisfied. LO CD N (d) enhancement of architectural, landscape and hardscape improvements: r 0 The original TTM and North Plan required approval of architectural guidelines prior to issuance o� of building permits. The updated conditions of approval for the Modified TTM and North Plan C also requires approval of design guidelines. Additionally, the original TTM and North Plan and the Modified TTM and North Plan require approval of landscape and hardscape plans. This N criterion has been met. v A (e) more efficient mitigation measures/conditions of approval resulting from advancement in w scientific knowledge,know how or improved technology: E State regulations, such as those for energy efficiency and management of storm water runoff, a require more efficient mitigation measures and improved technology overall. The Modified a TTM and North Plan will include water quality control basins, building energy requirements as prescribed in the latest building code, and will meet all other requirements imposed by State and E Federal agencies, such as the Regional Water Quality Control Board, California Department of Fish and Wildlife and the Army Corps of Engineers. Because of these performance standards, a many of which did not exist at the time of development of the original approval, the Modified TTM and North Plan meets this criterion. (f) other modifications which the Director determines are similar to the foregoing, or any combination of the same(even if, in such combination,some elements intensify and other elements deintensify,but in the aggregate the modification is equal to or less intense from the standpoint of environmental impacts under CEQA,than development of the Highland Hills Property pursuant to the North Plan): Packet Pg. 365' 6.A.k Hearing Date:04.15.15 Appeal 15-01--Appeal of Community Development Director Decision Page 5 The one component of the Modified TTM and North Plan which has a potential negative effect is the elimination of the golf course. Although the golf course was in a floodplain, it also acted as a buffer between the proposed higher density project components, primarily apartments, and the single-family residential units to the east. Under the Modified TTM and North PIan, the golf course has been eliminated and this change is considered to represent a net loss to the project and community. However, when considered in the context of the whole project,this change is offset by four important benefits resulting from the Modified TTM and North Plan. First,the Modified c North Plan/TTM will incorporate positive flood control solutions. Second, the northern portion LO of the project site will remain undeveloped under the Modified North Plan/TTM because the o residential development footprint has been reduced in size and shifted to the lower portions of Z the project site. Third, the development proposed for the golf course area under the Modified a TTM and North Plan is proposed to be medium density single-family residential development, Q which will be compatible with the adjacent single-family residential development. Fourth, the Modified TTM and North Plan contain a park on Arroyo Vista Drive, providing a substantial community benefit to the existing homes to the east as well as providing some buffer. In accordance with this criterion,the Modified TTM and North Plan,in the aggregate, is equal to or less intense from the standpoint of impacts under CEQA, than the Approved TTM and North a, Plan. Therefore the criterion has been met. ti LO The request for Minor Modification was circulated internally to the relevant City departments for °; review and comment. Departments were asked to update their respective conditions to reflect ,r, changes in State or federal law and to be consistent with the approved Minor Modifications. An o updated set of conditions of approval has been incorporated into the Operating Memorandum. 0 In addition to the analysis above, a thorough review of the Minor Modifications was prepared by of Tom Dodson & Associates (Attachment 6). The document contains an analysis of the C environmental issues related to the Modified TTM 15731 and the Modified North Plan. It concludes that the Modified project has a significantly reduced impact on the environment than y the original project. o. Based upon the above analysis, the Modified TTM and North Plan submitted to the Director of Community Development qualifies as a"Minor Modification" of the Approved TTM and North Plan within the meaning of Section 1.4 of the Second Addendum to the 1989 Settlement s Agreement. Additionally, the approval was granted through an Operating Memorandum, dated Y December 30,2014, (Attachment 7)as specified. a c CALIFORNIA ENVIRONMENTAL QUALITY ACT (CE 0A) Approval of the Minor Modification is exempt from review under the California Environmental Quality Act. Pursuant to Public Resources Code Section 21080 (b)(1) and CEQA Guidelines Q Section 15268, CEQA only applies to discretionary projects. Section R "Intent of Second Addendum" states that the property may be developed "without any further discretionary approvals." Furthermore, if the conditions described in Section 1.4 exist, approval of the Minor Modifications is prescribed by the Director, which means that modifications are also ministerial actions. Packet Pg.366' Hearing Date: 04.15.15 Appeal 15-01--Appeal of Community Development Director Decision Page 6 The originally adopted Mitigation Measures were reviewed and updated to reflect changes in State or Federal law and to be consistent with the approved Minor Modifications. An updated set of Mitigation Measures and Mitigation Monitoring and Reporting Program (MMRP) have been incorporated into the approval. A Notice of Exemption was filed and posted with the San Bernardino County Clerk's Office on December 30,2014. N O ANALYSIS OF APPEAL 6 On January 8, 2015, an appeal was filed by Briggs Law Corporation on behalf of James Nunn Z and the Highland Hills Homeowners, pursuant to San Bernardino Municipal Code Section a 19.52.100. a The appellant specified three grounds for the appeal: 1. The approval is not authorized by the Settlement Agreement dated March 26,2001; _ 2. The approval violates the Planning and Zoning Law, and the San Bernardino Municipal Code,among other laws; 3. The approval is not exempt from environmental review under CEQA. _ ti LO Point l —Approval is not authorized by Settlement Agreement Ln Staff finds this to be an invalid basis for appeal. The detailed analysis in the section above N "Analysis of Request for Minor Modification" clearly shows that the modifications sought by LO Hogan Edgcomb, on behalf of the property owner, qualify as a "Minor Modification" under of Section 1.4 of the Second Addendum. Staff recommends that the Planning Commission reject o this point as the basis for an appeal. L Point 2 —Approval violates Planning and Zoning Law, the San Bernardino Municipal Code and other laws. U a Staff finds this to be an invalid basis for appeal. The Second Addendum to the July 3, 1989, Highland Hills Homeowners Settlement Agreement,Approved by Superior Court Judge Ben T. d Kayashima, San Bernardino County Superior Court Case No. 241464, dated March 26, 2001, E validates and clarifies the 1989 approval and the First Addendum approved in 1993. w a As specifically stated in Sections Q and R the intent of the Second Addendum is: CD "Q. Subject to the limitations set forth in this Second Addendum,RSA is entitled to develop the Highland Hills Property pursuant to the North Plan and all applicable rights and entitlements including, without limitation, the rights and Q entitlements which are more particularly described in Highland Hills Specific Plan 82-1,the Highland Hills EIR,the 1989 General Plan,the 1989 General Plan EIR. the 1989 Settlement Agreement, the First Addendum, the Supplement, the Highland Hills Area N/S ERMP 1603 Agreement and related documents, all as clarified by this Second Addendum (the foregoing documents and this Second Addendum are collectively referred to as the"Entitlement(s)". Following approval of the Project Tentative Map, all references to Entitlements shall also be deemed Packet Pg.367 Hearing Date: 04.15,15 Appeal 15-01—Appeal of Community Development Director Decision P ect Tentative Map). 7 to include the Project ). RSA is also entitled under applicable law to include within the development density permitted by the North Plan, up to 200 senior citizen (resort) dwelling units for sale to senior citizens ("Senior Citizen (Resort) Dwelling Units"). A detailed description of the North Plan, including the Senior Citizen (Resort) Dwelling Units, as well as the application RSA has filed with the City to implement approval of the Project Tentative Map pursuant to the North Plan, is attached as Exhibit "F" and incorporated by this reference. All references in this Second Addendum to the North Plan shall be deemed to be o references to the North Plan, including such Senior Citizen (Resort) Dwelling Ln Units. o Z R. In reliance on the covenants of the City in this Second Addendum, RSA will a continue to incur substantial costs in order to implement the Entitlements by a development of the Highland Hills Property pursuant to the North Plan. v, Therefore, by entering into this Second Addendum,the Common Council intends to clarify the intent of the Entitlements,to clarify to RSA that the Entitlements are = vested and that RSA may develop the Highland Hills Property pursuant to the North Plan without any further discretionary approvals being required other than as set forth in this Second Addendum. In addition, by entering into this Second Addendum and in order to carry out the intent of the Entitlements, the Common LO Council also intends to clarify that the grandfathering of development of the M Highland Hills Property pursuant to the North Plan (as provided in the 1989 Ln Settlement Agreement and the 1989 General Plan) means that the Highland Hills N Property maybe developed pursuant to the North Plan just as if such development LO had occurred pursuant to the governing ordinances, rules, regulations and policies of which existed in 1989." 0 0 The Highland Hills Project is fully vested "without any further discretionary approvals being required." The Second Addendum effectively supersedes City regulations and Ordinances and 1 State Planning and Zoning law relative to the local review and approval of projects. The Minor Modification approved on December 30, 2014, is fully compliant with the Second Addendum, a State law and City Ordinances. Staff recommends that the Planning Commission reject this point r as the basis for an appeal. Point 3—Approval is not exempt from environmental review under CEQA o a Staff finds this to be an invalid basis for appeal. CEQA only applies to discretionary projects pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. The Community Development Director is authorized under Section 1.4 to make minor modifications to the existing approved project. As stated in Point 2 above no further r discretionary actions are required to implement the project. Actions taken by the Director are a non-discretionary:they are prescribed by the Second Addendum. Based upon the Second Addendum approval of a Minor Modification to TTM 15731 and the North Plan is a ministerial action. Staff recommends that the Planning Commission reject this point as the basis for an appeal. Packet Pg.368 6Ak Hearing Date:04.15.15 Appeal 15-01—Appeal of Community Development Director Decision Page 8 CONCLUSION Elimination of the golf course is an intensification of one component of the project. However, when all components of the project are considered — a 54% reduction in dwelling units, a complete elimination of commercial acreage, a 65% reduction in grading, a 53% reduction in traffic, a 44%reduction in the total disturbed area, a 16%reduction in impacts to wetlands and a 24% reduction in impacts to stream —the modified project is significantly less intense than the _ original project. N 0 i LO Based upon the totality of the changes proposed through the Modified Tentative Tract Map o 15731 dated August 21, 2014, and the Modified North Plan dated November 10, 2014, the Z Community Development Director determined the requested changes fully comply with Section CL 1.4 of the Second Addendum to the 1989 Settlement Agreement. Therefore an Operating CL Memorandum of Approval was issued on December 30,2014. Staff finds that the three points raised by the appellant are invalid. The approval of the Minor Modification is permitted under Section 1.4 of the Second-Addendum. Approval of the Minor Modification is consistent with State law and the City of San Bernardino Ordinances and laws. a� Approval of the Minor Modification is exempt from the requirements of CEQA as a Ministerial = act. Staff finds there is no basis for the appeal filed on January 8,2015. LO co M FINDINGS OF FACT U) 1. The Minor Modifications are permitted under Section 1.4 of the Second Addendum to the LO 1989 Settlement Agreement. Section 1.4 contains specific criteria in determining if the o request is a "Minor Modification." The criteria are as follows "(a) fewer residential units, of (b) less gross leasable commercial space, (c) changes in improvement locations which are C equal to or less intrusive than the location of improvements under the North Plan (d) enhancement of architectural, landscape and hardscape improvements, (e) more efficient M mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications which the a Director determines are similar to the foregoing,or any combination of the same" ti r c 2. The Minor Modifications approved by the Community Development Director permit a E project that is less intense from the standpoint of CEQA. The number of dwelling units is reduced from 1,516 to 695 a 54% reduction. The commercial acreage has been completely a eliminated. The amount of grading has been reduced from approximately 10,000,000 cubic yards to 3,500,000 cubic yards a 65% reduction. The amount of disturbed area has been reduced from 345 acres to 193 acres a 44% reduction. The total traffic has been reduced from 12,212 average daily trips to 5,760 average daily trips a 53%reduction.. Q 3. Elimination of the golf course is an intensification of one component of the project, however, when all components of the project are considered, the modified project is significantly less intense than the original project. 4. The Highland Hills project is vested under the Second Addendum and may be developed without any further discretionary actions. Approval of Minor Modifications is prescribed by Section 1.4 of the Second Addendum and is therefore non-discretionary. The Minor Packet Pg.369 Hearing Date: 04.15.15 Appeal 15-01—Appeal of Community Development Director Decision Page 9 Modifications are exempt from review under the California Environmental Quality Act (CEQA)as a Ministerial action pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. 5. There is no basis for the appeal filed by James Nunn and the Highland Hills Homeowners. The three points contained in the appeal: a)the approval is not authorized by the Settlement Agreement dated March 26, 2001, b) the approval violates the Planning and Zoning Law, and the San Bernardino Municipal Code, among other laws, and c) the approval is not o exempt from environmental review under CEQA,are without merit. LO 6 Z RECOMMENDATION Based upon the Findings of Fact, staff recommends that the Planning Commission uphold the a CL December 30,2014,decision of the Community Development Director and deny Appeal No. 15- N O1. �v Respectfully Submitted, �+ :F LO Mark H. Persico,AICP N a I'm Nap Community Development Director Ln le 0 I O Q Attachment 1 Notice of Official Action,dated December 30,2014 Attachment 2 Application for Appeal, dated January 8,2015 N Attachment 3 Second Addendum to the July 3, 1989 Highland Hills Homeowners U Settlement Agreement(Case No. 241464), dated March 26,2001 a Attachment 4 Modified Tentative Tract Map No. 15731,dated August 21,2014 Attachment 5 Modified North Plan,dated November 10,2014 d Attachment 6 Highland Hills Evaluation of Minor Modifications Criteria and Environmental Impacts for the Modified North Plan/TTM, dated September 2014 c Attachment 7 Operating Memorandum — Approval of Minor Modifications to Tentative Q Tract Map No. 15731 and the North Plan for the "Highland Hills Project," dated December 30,2014 a Y Y Q Packet Pg.370 Ekab Eldiab,489 N,Waterman Ave,,spoke in opposition. Warren Roberson,24199 5"'St.,spoke in opposition. Ennil Marzullo,28446 Carriage Hill,spoke in opposition. Earnest Elurnn,409 E,Rialto Ave. Apt 11;spoke in favor. cv 0 Robert Green Jr.,380 San Felipe Rd.;•spoke in oppo ' on. T_ 6 Ezra Gaudette,4821/2 San Felipe Rd.,spoke ' opposition. Z CL Convnissioners had additional questi s and comments. Q N Commissioner Machen ma a motion to approve Conditional Use Peinnit 15-02 with Type 20 ABC License(Off-sal eer&Wine)based on the Findings of Fact contained in the Staff c Report and subject t ie Conditions of Approval. s 21 Commissio •Durr seconded the inotion. ti to The otion carried by the following vote: Ayes: Machen, Dun-, Heasley, Thomas and ViIyatt. °° ays: Lopez and Eble. Abstain:None.Excused: Paxton and Dailey.Absent: Barnhardt. LO T 0 LO r 8. RECONSIDERATION OF APPEAL 15-01 -Appeal of the Conununity Development o� Director's approval of Minor Modification 14-34 to Tentative Tract Map 15731 dated November 21,2014 and the North Plan for the"Highland Hills Project"dated November 10, 2014. E Address: East of the City Creek and North of Highland Avenue in the Highland a Hills Specific Plan. ao Zone: Highland Hills Specific Plan Environmental Determination: Ministerial Act exealpt from the California E Environmental Quality Act (CEQA) per Public Resources Code Section 23080 (b) (1) and the Q CEDQA Guidelines Section 15268 Appellant: Jim Numn and Highland Hills Homeowners m c/o Briggs Law Corporation, E APN: Various Parcels ca Ward: 4 Q Recommended Motion: Staff recommends that the Planning Commission uphold the December 30, 2014, decision of the Community Development Director and deny Appeal 15-01. Mark Persico, Community Development Director gave a presentation of the project. Page 5 of 8 04/1512015 Packet Pg.371 Henry Enapeiio, Jr.. Senior Deputy City Attorney added comments regarding the matter and presented an entail that was written by Mr. Cory Briggs. The Commissioners had questions regarding the project. Mark Ostoich, Gresham Savage, 550 E. Hospitality.U., representing the applicant, gave 2t short presentation. N Ken Meddock, Project Manager for Highland Hills, 4654 Barranca Pkwy., gave a show t UI) T presentation. 6 Z LJ Edgcornb,First American Title,20201 SW Bristol,gave a short presentation. a� I a James Dunn, 28695 Arroyo Vista Dr., Attorney representing the Highland Hills Hoare Q Owners Association,gave a short presentation. Commission announced a 5 minute break at 7:40 pm. Denise Dvorak;6690 Orangewood Lane,spoke in opposition. _ LO Mr.Johnson,28540 E,Highland Ave.,spoke in apposition. 00 Steven Purper,28649 Arroyo Vista Dr.,spoke in opposition. c N LO r Susan Hodges,28663 Arroyo Vista Dr.,spoke in opposition. o� N Donita Remington 28663 Arroyo Vista Dr.,spoke in opposition. c Debbie Carter,6576 Orangewood Rd.,spoke in opposition. E U . a Shellrae Hoehn,6592 Orangewood Rd.,spoke in opposition. � c m Marlene Davis, 28634 Terrace Dr,,spoke in opposition. E v Sesario Perez,5624 Wadsworth Ave.,spoke in favor. a Gary Lee, 28571 Arroyo Vista Dr.,spoke in opposition. Ann Strawn,6683 Fairway Lane,spoke in opposition. r a Glenn Drewcs,6683 Fairway Lane,spoke in opposition. David Hoehn,6592 Orangewood Rd.,spoke in opposition. Mark Ostoich answered more questions from the Commissioners. Page 6 of 8 04/1512015 Packet Pg.372 6.A.1 The Commissioners had other questions and comments. Commissioner Machen made a motion to reverse the December 30, 2014 decision of the Conununity Development Director and Approve Appeal 15-01. Motion failed for lack of a second. Commissioner Darr made a motion to uphold the December 303 2014, decision of the Community Development Director and deny Appeal 15-01. T- 6 Commissioner Machen had several more questions regarding the project. Z m CL Commissioner Eble seconded the motion. ° a N The motion carried by the following vote: Ayes: Durr,Eble,Heasley,Lopez and Thomas . Nays: Machen. Abstain:Wyatt. Excused:Paxton and Dailey.Absent: Barnhardt. c cn NON-PUBLIC HEARING ITEMS ti LO None 00 M LO PLANNING COMMISSION REPORTS/ANNOUNCEMENTS N LO T None of N DIRECTOR'S REPORT _ E 1. Status Report on Development Code Update Project U a 2. Annual Report for 2014 3. Third Thursday Food Fest 00 4. Quarterly Newsletter ADJOURNII'IENT d Comtnissioner Machen made a motion which was animously carried,to adjourn the Plamling m Commission meeting at 9:12 p.m. The next re lar meeting was scheduled for Wednesday, E May 20, 2015 at 6:00 pan. in the Council nambers, First Floor, 300 North "D" Street, San Bernardino,California. Q Minutes Adopted by Plannin ommissioners: Date Approved: Minutes Prepared b . Page 7 of 8 04/1512015 Packet Pg.373 Stephanie Sanchez 1Cxecutive Assistant N O LO T O Z at d Q Q. Q N 2 'a G 2 ti LO 00 M LO T O N to T O N I d c E U rL co c d E t U Q c E t U t0 r+ a } Page 8 of 8 04/1512015 Packet Pg.374 Sa ' A CITY OF SAN BERNARDINO � sr D IN STATEMENT OF OFFICIAL PLANNING COMMISSION ACTION PROJECT Number: RECONSIDERATION OF APPEAL 15-01 Applicant: Jim Nunn and Highland Hills Homeowners c/o Briggs Law Corporation Description: Appeal of the Community Development Director's approval of Minor c Modification 14-34 to Tentative Tract Map 15731 dated Nov. 21, 2014 and the North Plan for the "Highland Hills Project" dated November 10, 2014. o Z d ACTION: DENIED a N 2 Meeting Date: April 15, 2015 = rn The Planning Commission upheld the December 30, 2014 decision of the Community Development Director and denied the Appeal 15-01. M r VOTE N Ayes: Heasley, Durr, Eble, Lopez and Thomas Nays: Machen =i Abstain: Wyatt 0 w Absent: Barnhardt m Excused: Paxton and Dailey a 4- 0 m U The decision of the Planning Commission is final unless a written appeal is filed, with the 0 appropriate fee, within 15 days of the Planning Commission action, pursuant to Section 19.52.100 of the Municipal (Development) Code. C' c E v 0 w Q c a� E _ 0 Mark Persico, Community Development Director Date cc: Case File,Department File,Plan Check S:\PLANNINWIanning Secretary\PC\PC Stmts of Action\2015 Packet Pg:375 ONNAL CITY OF SAN BERNARDINO Community Development Department,Pdanning Division ' 300 North"D" Street,3`d Floor San Bernardino,CA 92418 Phone(909)384-5057 • Fax(909)384-5080 a rnat' l�Q Web address. www,sbeity.org APPLICATION FOR APPEAL N 9 Appeal From A Decision Of The(check one) V_ 6 ❑ Community Development Director z ❑ Development/Environmental Review Committee Q M. Planning Commission Q CaseNumber(s): Appeal. 15-01 (Reconsideration) a Project Address: Located generally east of City Creek and north of Highland Avenue tw Appellant's Name: James Nunn and Highland Hills Homeowners _ Appellant's Address: c/o Briggs Law Corporation,99 East"C Street,Suite 111 Upland,CA 91786 LO M Appellant's Phone: 909-949-7115 E-mail Address: cory@briggslawcorp.com 0 N Contact Person's Name: Cory J.Briggs N v 0 Contact Person's Address: Briggs Law Corp.,99 East T"street,Suite 111,Upland,CA 91786 NI 0 Contact Person's Phone: (909)949-7115 E-mail Address: cory@briggslawcorp.com r CL a Pursuant to Section 19.52.100 of the Development Code, an appeal must be filed on a City application form ° within 15 Days following the final date of action,accompanied by the appropriate appeal filing fee, m E Appeals are normally scheduled for a determination by the Planning Commission or Mayor and Common 0 Council within 30 days of the filing date of the appeal. You will be notified, in writing, of the specific date and a time of the appeal hearing. u c d E w a OFFICE USE ONLY Ua,e��Nnu. r��t�+5 3•U3•l� Date Filed: 0.r . a. (5 .Receipt Issued By: rkLAV is Mxkriw Receipt No.: _ R I S(g)19-1() Receipt Amount: $ 801,3L Application For Appeal 1 07/12 Packet Pg.376 V .. Required Information For An Appeal Specific Action Being Appealed and the Date of That Action; Planning Commission's April 15,2015 upholding of its February 18, 2015 decision to approve Minor Modification 14-34 to Tentative Tract Map 15731 dated November 21,2014 and the North Plan for the"Highland Hills Project"dated November 10,2014,located east of the City Creek and north of Highland Avenue in the Highland Hills Specific Plan. N O Specific Grounds for the Appeal; please see attachment r 0 z a� :a sz d s cc t Invalidation,reversal,and rescission of the approval and the determination of exemption under CEQA. _ Action Sought: .. LO O Cl) LO r O N CO N d' • O I N O Additional Information:The appeal fee Is being paid under protest. To the extent the approval is being made under the Settlement Agreement,that T a contract provides no authority for charging an appeal fee of any kind. Furthermore,Appellants are entitled to appeal at no cost to the City's highest elected Q 0 declsion-making body pursuant to Public Resources Code section 21151(c). r c E L) Q c m E U (4 a.+ a Signature of Appellant: Anthony N.Kim,Attorney for Appellant Date: Aril 28 2015 Application For Appeal 2 07112 Packet Pg. 377 Attachment to Appeal Application Specific grounds for appeal 1. The Planning Commission prejudicially abused its discretion under the California Environmental Quality Act("CEQA")by approving the Project using a CEQA exemption because the Project does not qualify as a"minor"modification under the Second Addendum. N In this respect,the approval is not ministerial and does not qualify for a CEQA exemption. 9 LO Furthermore,the Project as proposed will have environmental impacts andrequire mitigation that was not analyzed in any environmental document. Z 2. The Planning Commission abused its discretion under Municipal Code Chapter 19.66.150 CL because there is no support for the findings that the tract map is consistent with the General a Plan,any applicable specific plan,and all provisions of the Municipal Code. Alternatively, N no such findings were made. _ c 3. The Planning Commission abused its discretion under the Subdivision Map Act because it did not make the findings required by Government Code Sections 66473.5 and 66474. z Alternatively,any such findings were not supported by substantial evidence. 00 4. Assuming the approval is a minor amendment to a tract map, the Planning Commission abused its discretion by upholding the amendment because there is no substantial evidence o to support that(1)no lots,units,or buildings are being added,(2)changes are consistent with 00 the intent of the original tentative map approval,and(3)there are no resulting violations of o the Map Act,or this Development Code. i N O LO 5. Appellant is entitled to appeal to the City Council pursuant to Public Resources Code Section o. 21151 without having to pay an unreasonable appeal fee or having to satisfy other a unreasonable requirements. The fee being charged and other requirements for having this appeal submitted,accepted,and processed are unreasonable. E r w a c d E U Ri a+ a Page 1 of 1 Packet Pg.378 J OE�tNARp�k �GN�ED IN�,o CITY OF SAN BERNARDINO DEPARTMENT OF DEVELOPMENT SERVICES RECEIPT Activity#:AP15-02 Appeal. to T SITE ADDRESS: PARCEL: 0288-151-06-0000 z Z RECEIVED FROM: BRIGGS LAW CORPORATION R RECEIPT NUMBER: R15001220 Copy Reprinted on 04-28-2015 at 14:14:30 Q Q a TRANSACTION DATE: 03/03/2015 TOTAL PAYMENT: 1,801.32 N TOTAL PAID FROM TRUST: .00 = TOTAL PAID FROM CURRENCY: 1,801.32 a C t TRANSACTIONS: 2 Type Method Description Amount ti Payment Check 66479 1, 801.32 M TOTAL: 1,801.32 v- r O N co N ACCOUNT ITEMS: o� N Description Account Code Current Pmts 9 ------------------------------ ---------------- ------------ r PROCESSING FEE 001-180-4731 1,801.32 (- TOTAL: 1,801.32 a 0 RECEIPT ISSUED BY: MGW INITIALS: TM ENTERED DATE: 03/03/2015 TIME. 03.09 PM s U R r r-. Q .i+ C d V l4 a+ a+ a Packet Pg.W§ N 1 RESOLUTION NO. o 2 6 Z 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DENYING APPEAL NO. 15-02 AND UPHOLDING THE PLANNING a 4 COMMISSION DECISION DENYING APPEAL NO. 15-01; THEREBY AFFIRMING a THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF MINOR 5 MODIFICATIONS TO TENTATIVE TRACT MAP NO. 15731 AND THE NORTH = v PLAN (HIGHLAND HILLS PROJECT) GENERALLY LOCATED EAST OF = 6 `� FREEWAY 330 AND NORTH OF HIGHLAND AVENUE �, 7 _ ti 8 WHEREAS, on December 20, 1982 the Mayor and Common Council ("MCC") M approved the Highland Hills Specific Plan 82-1 ("HHSP 82-1") and certified the Environmental 9 Impact Report; 0 10 WHEREAS, on July 1, 1985 the MCC amended HHSP 82-1 to allow construction of 11 low and moderate income housing units within the HHSP; 0 12 WHEREAS, on January 14, 1988 the Highland Hills Homeowners filed suit against the City seeking to stop the low and moderate income, multi-family housing project; 13 0 14 WHEREAS, on July 3, 1989 a settlement was reached allowing for construction of up o to 1,730 dwelling units and a Championship "Links" Golf Range; _ 15 r WHEREAS, on February 5, 1993 the First Addendum to the 1989 Settlement 16 Agreement was executed. Among other things, the First Addendum reduced the multi-family a dwellings from 1,200 to 566 units; N 17 18 WHEREAS, on March 26, 2001 a Second Addendum to the 1989 Settlement c CU Agreement was executed. Among other things, the Second Addendum was intended "to once 19 and for all clarify the terms and provisions of those previous agreements and documents..."; 0 20 WHEREAS, on April 17, 2001 the San Bernardino Planning Commission approved Tentative Tract Map No. 15731, which allows for the development of 1,516 dwelling units N 21 including a commercial pad and golf course; 22 U WHEREAS, on July 28, 2014 a request for Minor Modifications pursuant Section 1.4 g 23 of the Second Addendum to the 1989 Settlement Agreement was filed by Hogan Edgcomb Consulting representing the current property owner, First American Title Insurance Company; r 24 a=i WHEREAS, on December 30, 2014 the Community Development Director approved C 25 Minor Modifications to Tentative Tract Map No. 15731 and the North Plan for the Highland 0 w 26 Hills Project through an Operating Memorandum; Q c a� 27 E ca 28 Q 1 Packet Pg.380 6.A.o 1 WHEREAS, on January 8, 2015 an appeal (Appeal No. 15-01) was filed by Cory o Briggs on behalf of James Nunn and the Highland Hills Homeowners Association challenging 2 the Community Development Director's approval of the Minor Modifications; Z 3 WHEREAS, on February 18, 2015 the Planning Commission conducted a public a 4 hearing on Appeal No. 15-01 and upheld the approval of the Minor Modifications to the Highland Hills Project approved by the Community Development Director; A 5 _ WHEREAS, on March 3, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs 6 challenging the Planning Commission decision upholding the Community Development 7 Director approval of the Minor Modifications; i ti 8 WHEREAS, on March 19, 2015 Cory Briggs alleged Brown Act violations due to the M posted agenda being removed and therefore not available for 72 hours in advance of the 9 February 18, 2015 meeting; _ 0 10 WHEREAS, on April 15, 2015 the Planning Commission voted to reconsider all items > 11 heard at the February 18, 2015 meeting including Appeal No. 15-01 for the Highland Hills Project; o 12 WHEREAS, on April 15, 2015 the Planning Commission conducted a de novo public 13 hearing on Appeal No. 15-01 and upheld the Minor Modifications to the Highland Hills Project 0 14 approved by the Community Development Director on December 30, 2014; o 15 WHEREAS, on April 28, 2015 an appeal (Appeal No. 15-02) was filed by Cory Briggs challenging the April 15, 2015 Planning Commission decision upholding the Community 0 16 Development Director's approval of the Minor Modifications; and, a 0 17 WHEREAS, a notice of the June 1, 2015 public hearing before the Mayor and x 18 Common Council regarding Appeal No. 15-02 was published in The Sun newspaper on May 15, 2015 and, was mailed to property owners within a 500 foot radius of the project site in = 19 accordance with Development Code Chapter 19.52. c 20 0 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON c 21 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 22 v 23 SECTION 1. The Mayor and Common Council find that the above-stated Recitals are IL true and hereby adopt and incorporate them herein. 24 m SECTION 2. Findings of Fact. 25 w 26 1. The Minor Modifications are permitted under Section 1.4 of the Second Addendum to a the 1989 Settlement Agreement. Section 1.4 contains specific criteria in determining if d 27 the request is a "Minor Modification." The criteria are as follows "(a) fewer residential 28 Q 2 Packet Pg.381 1 units, (b) less gross leasable commercial space, (c ) changes in improvement locations o Ln which are equal to or less intrusive than the location of improvements under the North 2 Plan (d) enhancement of architectural, landscape and hardscape improvements, (e) more z° 3 efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications Q 4 which the Director determines are similar to the foregoing, or any combination of the Q same." 5 = 2. The Minor Modifications approved by the Community Development Director permit a 6 project that is less intense from the standpoint of CEQA. The number of dwelling units 7 is reduced from 1,516 to 695 a 54% reduction. The commercial acreage has been completely eliminated. The amount of grading has been reduced from approximately Ln 8 10,000,000 cubic yards to 3,500,000 cubic yards a 65% reduction. The amount of CO disturbed area has been reduced from 345 acres to 193 acres a 44% reduction. The total C 9 traffic has been reduced from 12,212 average daily trips to 5,760 average daily trips a 53% reduction. 2 10 11 3. Elimination of the golf course is an intensification of one component of the project, however, when all components of the project are considered, the modified project is o 12 significantly less intense than the original project. 13 4. The Highland Hills project is vested under the Second Addendum and may be o 14 developed without any further discretionary actions. Approval of Minor Modifications o is prescribed by Section 1.4 of the Second Addendum and is therefore non- C: 15 discretionary. The Minor Modifications are exempt from review under the California Environmental Quality Act (CEQA) as a Ministerial action pursuant to Public 16 Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268. L- L A 17 5. There is no basis for the appeal filed by James Nunn and the Highland Hills i 18 Homeowners. The five points contained in the appeal: a) the Planning Commission prejudicially abused its discretion under the California Environmental Quality Act; b) s 19 the Planning Commission abused its discretion under Municipal Code Section 19.66.150; c) the Planning Commission abused its discretion under the Subdivision o 20 Map Act; d) assuming the approval is a minor amendment to a tract map, the Planning 2 Commission abused its discretion because there is a lack of evidence; and e) appellant is N 21 entitled to appeal to the City Council pursuant to Public Resources Code Section 21151 22 without having to pay an unreasonable appeal fee, are without merit. v 23 6. There are no occurrences of substantial changes with respect to the circumstances under which the project is being undertaken which would require major revisions in the 24 previously approved environmental impact report due to the involvement of new significant environmental effects or a substantial increase in the severity of previously 25 identified significant effects. 26 a 7. There is no new information of substantial importance, which was not known and could 27 not have been known at the time the previously approved environmental impact report E U 28 Q 3 Packet Pg.382 6.A.o 1 was certified as complete, which has become available. o th 2 8. There is no new information that the project will have significant effects previously z° 3 examined which will be substantially more severe than shown in the previously 7i approved environmental impact report. CL 4 9. There is no new information that mitigation measures or alternatives previously found 5 not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project and the project proponents declined to adopt the 6 mitigation measure or alternative. a, 7 10. There is no new information that mitigation measures or alternatives which are LO 8 considerably different from those analyzed in the previously approved environmental c, impact report would substantially reduce one or more significant effects on the 9 environment and the project proponents declined to adopt the mitigation measure or = alternative. 2 10 W 5 0 11 11. The site is physically suitable for this type of development, and design of the proposed subdivision is consistent with the 2005 San Bernardino General Plan and the Highland o 12 Hills Specific Plan. 13 12. The design of the subdivision and the proposed improvements are not likely to cause 0 14 substantial environmental damage or substantially and avoidably injure fish or wildlife o or their habitat. _ 15 r 13. The design of the subdivision or type of improvements is not likely to cause serious 0 16 public health problems. a N 17 14. The changes contained within the Modified TTM and the North Plan are consistent with x 18 the intent of the original tentative tract map approval. 19 15. The appeal fee in the amount of $1,801.32 is a reasonable appeal fee that offsets the costs of processing the appeal. o 20 21 SECTION 3. Compliance with the California Environmental Quality 22 v U Approval of the Minor Modification is exempt from review under the California 23 Environmental Quality Act. Pursuant to Public Resources Code Section 21080 (b)(1) and CEQA 24 Guidelines Section 15268, CEQA only applies to discretionary projects. The Second Addendum at Section R"Intent of Second Addendum," states that the property may be developed "without any = 25 further discretionary approvals." Furthermore, if the conditions described in Section 1.4 exist, approval of the Minor Modifications is prescribed by the Director,which means that modifications Q 26 are also ministerial actions. 27 s 28 Q 4 Packet Pg. 383 1 The appellants contend that "the Project as proposed will have environmental impacts c Lh and require mitigation that was not analyzed in any environmental document." However, as 2 indicated, CEQA mandates that the opposite conclusion be reached. z° 3 R "[A]n agency is required to prepare a subsequent or supplemental EIR only where the Q 4 agency grants a `discretionary' approval" (San Diego Navy Broadway Complex Coalition v. Q City of San Diego (2010) 185 Cal.App.4th 924, 935-36) [Emphasis added] and only if certain 5 findings are made by the agency not present here. (Pub. Res. Code § 21166 and CEQA = Guidelines § 15162). 6 = as 7 In the absence of the authority for such discretion, the agency has no jurisdiction to prepare a subsequent or supplemental EIR. (Cucamongans United for Reasonable Expansion LO 8 v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479, see also CEQA Guidelines § M 15162(c) stating, "[o]nce a project has been approved, the lead agency's role in project 9 approval is completed, unless further discretionary approval on that project is required" and 10 [I]nformation appearing after an approval does not require reopening of that approval.") N as 11 Given that CEQA only applies to discretionary actions (Pub. Res. Code § 21080(b)(1) and CEQA Guidelines § 15268), there is no mechanism to permit supplemental or subsequent o 12 environmental review. Notably, a thorough environmental review of the Minor Modifications was prepared by Tom Dodson & Associates, which contained an analysis of the environmental -- 13 issues related to Modified TTM 15731 and the Modified North Plan and determined that the o 14 Modified project has a significantly reduced impact on the environment as compared to the o original project. r- 5 15 Y The record before the City demonstrates the following: 16 a a) There are no substantial changes proposed by the project which would require N 17 major revisions of the previously approved environmental impact report due to 18 the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. 19 b) There are no occurrences of substantial changes with respect to the o 20 circumstances under which the project is being undertaken which would require 2 major revisions in the previously approved environmental impact report due to 6 21 the involvement of new significant environmental effects or a substantial 22 increase in the severity of previously identified significant effects. v 23 c) There is no new information of substantial importance, which was not known and could not have been known at the time the previously approved 24 environmental impact report was certified as complete, which has become available. 25 r w d) There is no new information that the project will have one or more significant a 26 effects not discussed in the previously approved environmental impact report 27 E t ca 28 Q 5 Packet.Pg.384 6 A.o 1 e) There is no new information that the project will have significant effects c previously examined which will be substantially more severe than shown in the V 2 previously approved environmental impact report. z 3 f) There is no new information that mitigation measures or alternatives previously Q 4 found not to be feasible would in fact be feasible and would substantially reduce Q one or more significant effects of the project and the project proponents declined N 5 to adopt the mitigation measure or alternative. _ _ 6 g) There is no new information that mitigation measures or alternatives which are 7 considerably different from those analyzed in the previously approved environmental impact report would substantially reduce one or more significant LO 8 effects on the environment and the project proponents declined to adopt the M mitigation measure or alternative. `7 9 c h) The Minor Modifications to the project will result in a project that is less intense 10 from the standpoint of CEQA. > a� i) The Minor Modifications to the project do not cause any new significant o 12 environmental effect. 13 j) The Minor Modifications to the project result in either the deletion of or a 0 14 substantial decrease in the severity of environmental impacts. o 15 SECTION 4. The Mayor and Common Council hereby deny Appeal No. 15-02 and uphold the April 15, 2015 decision of the Planning Commission; thereby affirming the decision 16 of the Community Development Director approving Minor Modifications to Tentative Tract L Map 15731 and the North Plan for the Highland Hills project, based upon the Findings of Fact N 17 stated in this Resolution. 18 SECTION 5. Notice of Exemption The Community Development Department is s 19 hereby directed to file a Notice of Exemption with the County Clerk of the County of San a' Bernardino certifying the City's compliance with California Environmental Quality Act. o 20 r SECTION 6. Severability: If any section, subsection, subdivision, sentence, or clause o 21 or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, 22 invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the v validity or effectiveness of the remaining portions of this Resolution or any part thereof. The 23 Mayor and Common Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or 24 phrases be declared unconstitutional, invalid, or ineffective. 25 26 Q 27 E� 28 Q 6 Packet Pg.385 6.A.o 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN c BERNARDINO DENYING APPEAL NO. 15-02 AND UPHOLDING THE PLANNING 2 COMMISSION DECISION DENYING APPEAL NO. 15-01; THEREBY AFFIRMING z 3 THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF MINOR MODIFICATIONS TO TENTATIVE TRACT MAP NO. 15731 AND THE NORTH c. 4 PLAN (HIGHLAND HILLS PROJECT) GENERALLY LOCATED EAST OF a FREEWAY 330 AND NORTH OF HIGHLAND AVENUE 5 = c 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 7 and Common Council of the City of San Bernardino at a meeting thereof, i held on the day of , 2015,by the following vote to wit: LO 8 M AYES NAYS ABSTAIN ABSENT ` 9 Council Members: °- 10 A d 11 MARQUEZ 0 12 BARRIOS 13 VALDIVIA 0 L 14 SHORETT � 15 r NICKEL a 16 ° a JOHNSON 0 17 18 MULVIHILL 19 20 Georgeann Hanna, City Clerk 0 0 0 21 The foregoing Resolution is hereby approved this day of , 2015. 22 U U 23 R. CAREY DAVIS, Mayor r 24 Approved as to form: City of San Bernardino Gary D. Saenz, E 25 City Attorney a 26 By: c aD 27 E s 28 r Q 7 Packet Pg,. 86 ORM'M BRIGGS LAW CORPORATION San Diego Office: Inland Empire Office: 814 9Korera Blvd.,Suite 107 99 East "C"Street,Suite 111 San Diego, CA 92110 Vpland,CA 91786 Telephone:619-497-0021 Telephone:909-949-7115 Facsimile:619-515-6410 Facsimile:909-949-7121 Please respond to:Inland Empire Office BLC File(s):1807.00 1 June 2015 Mayor and Common Council City of San Bernardino 300 North"D' Street San Bernardino, CA 92418 Re: Appeal of Planning Commission's April 15,2015 Upholding of its February 18, 2015 Decision to Approve Minor Modification 14-34 to Tentative Tract Map 15731 (Highland Hills Project) Dear Mayor and Common Council: On behalf of my clients,James Nunn and Highland Hills Homeowners,I am writing to urge you to grant my clients'appeal and ultimately deny the above-referenced Project. The Project should be denied because its approval would violate the California Environmental Quality Act("CEQA"), the Water Code, and your own agency's ordinances and policies (among many other laws). The specific reasons for denying the Project are set forth on Attachment 1 to this letter and supported by evidence in the administrative record for the Project and by other evidence on the DVD accompanying this letter. Not only does this evidence trigger the need for new CEQA review because of the discretionary nature of the underlying decision,but it also supports the conclusion that subsequent review is required under Public Resources Code Section 21166. Due to a last-minute family emergency, I cannot attend in person and am having this letter and attachments delivered by courier. I would appreciate it if you would continue this appeal until after July 10, 2015. Please provide me with written notice of your decision and of any future public hearings on this matter. Thank you for your prompt attention to this important matter. Sincerely, BRIGGS LAW CORPORATION Cory J. Briggs Effeied Into Rec. at MCC Mtg. by: &L U V Attachments Agenda Rom No: 64 J. Be Good to the Garth:Reduce, Reuse, R`City Clerk City of San Bernardino Attachment 1 (p. 2 of 5) I. CEQA 1.01 The use of a CEQA exemption is inappropriate for this Project because, as further elaborated below,the Project will have significant environmental impacts and,at any rate, was not ministerially approved. If a project is not exempt from CEQA requirements—either because it does not fall within an exempt category or because an exception makes the exemption unavailable—then the agency must conduct an initial study to choose between preparing a negative declaration or an environmental impact report. Specifically, you erroneously claim the Project is exempt as a ministerial project under Public Resources Code Section 21080(b)(1). However,the Second Addendum on which you rely is clear that when a modification to the existing entitlements is sought,the Director of Development Services or the Planning Commission must first make a determination on whether the modification qualifies as a "minor" modification. In other words the City is exercising discretion in determining whether a modification is "minor," subjecting the approval to CEQA review. Furthermore, you are making a determination that "in the aggregate,"the modification is equal to or less intense from a CEQA standpoint. That determination evidences discretion on your part. Finally,even if the approval is ministerial in some respect, CEQA Guidelines Section 15268 is clear that where a project involves elements of both a ministerial and a discretionary action,the project will be deemed discretionary. II. Traffic 2.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant traffic impacts. For example,the staff report states that the Project will eliminate a golf course that acted as a buffer between the residential component of the Project to the east and will instead be replaced by single-family residential units. As a result,the residences to the east will no longer be adjoined by a golf course producing minimal traffic, but by single- family residences guaranteed to impact traffic circulation in the area. Furthermore, removing the golf course and replacing it with residences will result in a change in the area's circulation plans. III. Noise 3.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant noise impacts. Current residences to the east will now be subject to construction of single-family residences,along with operational noise impacts once the homes are built. Exs. N1-N5. IV. Public Services 4.01 There is not substantial evidence supporting the use of a CEQA exemption for the Attachment 1 (p. 3 of 5) Project because the Project will have significant environmental impacts on the delivery ofpublic services. Changing the circulation plan and replacing a golf course with single-family residences will have a significant impact on traffic and consequently,the delivery of public services--i.e.,police protection,fire protection, etc.--to the residents of this area. Prompt emergency response time is absolutely critical in protecting the health and safety of the City's residents. In some instances, a delay of mere seconds in emergency response time can be the difference between a person living or dying. See Exs. PSI-PS4. V. H dy rology/Water Quality/Flood Control 5.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on hydrology/water quality/flood control. A golf course is beneficial for flood control purposes because of its large permeable surface. Exs.WQ 1. Construction of single- family residences in place of the golf course will result in an increase in runoff because of the change from permeable to impermeable surfaces. Exs. WQ2-WQ3. Furthermore, when stormwater runs off impermeable surfaces,it picks up pollutants as it flows into storm drains.The contaminated water then flows directly into rivers, lakes, wetlands and oceans, generating problems for biodiversity as well as public health. Id. The newly proposed mitigation measures (Dec. 1, 2014) also portend potential serious impacts from flooding, which were not previously addressed through CEQA review. 5.02 The Project does not include a water supply assessment as required by Water Code Section 10910 et seq.,with some of the applicable provisions taking effect after the settlement was made; in other words,the Project did not previously receive a water supply assessment. The Project's parameters confirm that it meets the definition of a project under Water Code Section 10912(a), for example, because of the number of dwelling units(in excess of 500)and because it would demand an amount of water that is at least equivalent to the demand created by more than 500 dwelling units. 5.03 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on water supply. The shortage of water in California is well known as is evident from Governor Jerry Brown's April 1,2015 Executive Order mandating a statewide 25% water reduction. Your decision to not consider the Executive Order in connection with the Project is not supported by substantial evidence. VL Air Quality 6.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on air quality. For one,replacing the golf course with residences will subject the adjoining Be Good to the Earth:earth:reduce,Reuse,recycle Attachment 1 (p. 4 of 5) residences to greater pollution from the increased traffic. Furthermore,the California Legislature enacted AB32 in 2006,requiring California to reduce its GHG emissions to 1990 levels by 2020. Your decision to not consider AB32 in connection with the Project is not supported by substantial evidence. VII. Biological Resources 7.01 The project will have biological impacts that were not previously analyzed under CEQA. The need for additional biological-impact mitigation measures confirms that there is the potential for previously unconsidered biological impacts. VIII. Earth Resources 8.01 The substantial additional mitigation measures proposed in the updated Mitigation Monitoring and Reporting Program dated December 1, 2014, portend very serious landslide,earthquake,and other geological/geotechnical hazards. The staff report to the planning commission admitted that the site is "very complicated from a geotechnical hazards standpoint." The measures also require future study, but postponing the analysis for purposes of determining appropriate mitigation measures today is not allowed by CEQA,as deferral of mitigation is prohibited;this comment applies not just to this section but to each of the mitigation categories in the updated program that rely on future studies. 8.02 The potential for seismic settlement has now become moderate, according to the updated mitigation program,and requires excavation of 15 to 20 feet in some areas. That impact is potentially significant but was not previously considered under CEQA. 8.03 The potential impacts to major slopes were not identified and analyzed to the extent described in the updated mitigation program, which recognizes several slopes as "grossly unstable as designed." These impacts must be evaluated through CEQA review. 8.04 The potential impacts to natural slopes and their mud/debris potential were not identified and analyzed to the extent described in the updated mitigation program, which recognizes that these features may result in"significant damage to downslope improvements." These impacts must be evaluated through CEQA review. 8.05 Other new mitigation measures portend equally significant earth-resource impacts that were not previously considered through CEQA review. IX. Necessary Findings and Sufficiency of the Evidence 9.01 To the extent that you have attempted to make all findings required under CEQA, Be Good to the Eanh:Reduce,Reese, Recycle Attachment 1 (p. 5 of 5) such findings have not been supported by substantial evidence in the record. 9.02 To the extent that you have attempted to make all findings under the Second Addendum, such findings have not been supported by substantial evidence in the record. 9.03 Additional evidence supporting the need for CEQA review is provided by the updated Mitigation Monitoring and Reporting Program dated December 1, 2014. The fact that such mitigation measures are necessary confirms that the project has the potential for significant impacts that were not previously considered under CEQA. Each of the impacts to be mitigated (even if not covered above) — by virtue of the need for mitigation in the December 1 document—requires thorough, current study and public input through CEQA review. r, BRIGGS LAW CORPORATION San Diego Office: InlandEmpire Office: 814 94orena Blvd,Suite 107 99 East "C"Street,Suite 111 San Diego, CA 92110 upland,CA 91786 Telephone: 619-497-0021 Telephone.909-949-7115 facsimile. 619-515-6410 'Facsimile.909-949-7121 'lease respond to:Inland Empire Office BLC file(s�- 1807.00 1 June 2015 Mayor and Common Council City of San Bernardino 300 North"D" Street San Bernardino, CA 92418 Re: Appeal of Planning Commission's April 15, 2015 Upholding of its February 18, 2015 Decision to Approve Minor Modification 14-34 to Tentative Tract Map 15731 (Highland Hills Project) Dear Mayor and Common Council: On behalf of my clients,James Nunn and Highland Hills Homeowners,I am writing to urge you to grant my clients'appeal and ultimately deny the above-referenced Project. The Project should be denied because its approval would violate the California Environmental Quality Act("CEQA"), the Water Code, and your own agency's ordinances and policies (among many other laws). The specific reasons for denying the Project are set forth on Attachment 1 to this letter and supported by evidence in the administrative record for the Project and by other evidence on the DVD accompanying this letter. Not only does this evidence trigger the need for new CEQA review because of the discretionary nature of the underlying decision,but it also supports the conclusion that subsequent review is required under Public Resources Code Section 21166. Due to a last-minute family emergency, I cannot attend in person and am having this letter and attachments delivered by courier. I would appreciate it if you would continue this appeal until after July 10,2015. Please provide me with written notice of your decision and of any future public hearings on this matter. Thank you for your prompt attention to this important matter. Sincerely, BRIGGS LAW CORPORATION Cory J. Briggs Attachments Be Good to the Earth:Reduce, Reuse,Recycle W1 { Attachment 1 (p. 2 of 5) 1. CEQA 1.01 The use of a CEQA exemption is inappropriate for this Project because, as further elaborated below,the Project will have significant environmental impacts and,at any rate, was not ministerially approved. If a project is not exempt from CEQA requirements—either because it does not fall within an exempt category or because an exception makes the exemption unavailable—then the agency must conduct an initial study to choose between preparing a negative declaration or an environmental impact report. Specifically, you erroneously claim the Project is exempt as a ministerial project under Public Resources Code Section 21080(b)(1). However,the Second Addendum on which you rely is clear that when a modification to the existing entitlements is sought,the Director of Development Services or the Planning Commission must first make a determination on whether the modification qualifies as a "minor" modification. In other words the City is exercising discretion in determining whether a modification is "minor," subjecting the approval to CEQA review. Furthermore, you are making a determination that"in the aggregate," the modification is equal to or less intense from a CEQA standpoint. That determination evidences discretion on your part. Finally,even if the approval is ministerial in some respect, CEQA Guidelines Section 15268 is clear that where a project involves elements of both a ministerial and a discretionary action,the project will be deemed discretionary. II. Traffic 2.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant traffic impacts. For example, the staff report states that the Project will eliminate a golf course that acted as a buffer between the residential component of the Project to the east and will instead be replaced by single-family residential units. As a result,the residences to the east will no longer be adjoined by a golf course producing minimal traffic, but by single- family residences guaranteed to impact traffic circulation in the area. Furthermore, removing the golf course and replacing it with residences will result in a change in the area's circulation plans. III. Noise 3.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant noise impacts. Current residences to the east will now be subject to construction of single-family residences,along with operational noise impacts once the homes are built. Exs. N1-N5. IV. Public Services 4.01 There is not substantial evidence supporting the use of a CEQA exemption for the Be Good to the Earth:Reduce, Reuse,Recycle 0 i Attachment 1 (p. 3 of 5) Project because the Project will have significant environmental impacts on the delivery ofpublic services. Changing the circulation plan and replacing a golf course with single-family residences will have a significant impact on traffic and consequently,the delivery of public services--i.e.,police protection, fire protection, etc.--to the residents of this area. Prompt emergency response time is absolutely critical in protecting the health and safety of the City's residents. In some instances, a delay of mere seconds in emergency response time can be the difference between a person living or dying. See Exs. PSI-PS4. V. Hydrology/Water Quality/Flood Control 5.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on hydrology/water quality/flood control. A golf course is beneficial for flood control purposes because of its large permeable surface. Exs.WQ 1. Construction of single- family residences in place of the golf course will result in an increase in runoff because of the change from permeable to impermeable surfaces. Exs. WQ2-WQ3. Furthermore, when stormwater runs off impermeable surfaces,it picks up pollutants as it flows into storm drains.The contaminated water then flows directly into rivers, lakes, wetlands and oceans, generating problems for biodiversity as well as public health. Id. The newly proposed mitigation measures (Dec. 1, 2014) also portend potential serious impacts from flooding, which were not previously addressed through CEQA review. 5.02 The Project does not include a water supply assessment as required by Water Code Section 10910 et seq.,with some of the applicable provisions taking effect after the settlement was made; in other words,the Project did not previously receive a water supply assessment. The Project's parameters confirm that it meets the definition of a project under Water Code Section 10912(a), for example, because of the number of dwelling units(in excess of 500)and because it would demand an amount of water that is at least equivalent to the demand created by more than 500 dwelling units. 5.03 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on water supply. The shortage of water in California is well known as is evident from Governor Jerry Brown's April 1,2015 Executive Order mandating a statewide 25% water reduction. Your decision to not consider the Executive Order in connection with the Project is not supported by substantial evidence. VI. Air Quality 6.01 There is not substantial evidence supporting the use of a CEQA exemption for the Project because the Project will have significant environmental impacts on air quality. For one,replacing the golf course with residences will subject the adjoining Be Good to the Barth:Reduce, Reuse,Recycle 0 a Attachment 1 (p. 4 of 5) residences to greater pollution from the increased traffic. Furthermore,the California Legislature enacted AB32 in 2006,requiring California to reduce its GHG emissions to 1990 levels by 2020. Your decision to not consider AB32 in connection with the Project is not supported by substantial evidence. VII. Biological Resources 7.01 The project will have biological impacts that were not previously analyzed under CEQA. The need for additional biological-impact mitigation measures confirms that there is the potential for previously unconsidered biological impacts. VIII. Earth Resources 8.01 The substantial additional mitigation measures proposed in the updated Mitigation Monitoring and Reporting Program dated December 1, 2014, portend very serious landslide,earthquake,and other geological/geotechnical hazards. The staff report to the planning commission admitted that the site is "very complicated from a geotechnical hazards standpoint." The measures also require future study, but postponing the analysis for purposes of determining appropriate mitigation measures today is not allowed by CEQA,as deferral of mitigation is prohibited;this comment applies not just to this section but to each of the mitigation categories in the updated program that rely on future studies. 8.02 The potential for seismic settlement has now become moderate, according to the updated mitigation program,and requires excavation of 15 to 20 feet in some areas. That impact is potentially significant but was not previously considered under CEQA. 8.03 The potential impacts to major slopes were not identified and analyzed to the extent described in the updated mitigation program, which recognizes several slopes as "grossly unstable as designed." These impacts must be evaluated through CEQA review. 8.04 The potential impacts to natural slopes and their mud/debris potential were not identified and analyzed to the extent described in the updated mitigation program, which recognizes that these features may result in"significant damage to downslope improvements." These impacts must be evaluated through CEQA review. 8.05 Other new mitigation measures portend equally significant earth-resource impacts that were not previously considered through CEQA review. IX. Necessary Findings and Sufficiency of the Evidence 9.01 To the extent that you have attempted to make all findings required under CEQA, Be Good to the Earth:Reduce, Reuse, Recycle Attachment 1 (p. 5 of 5) such findings have not been supported by substantial evidence in the record. 9.02 To the extent that you have attempted to make all findings under the Second Addendum, such findings have not been supported by substantial evidence in the record. 9.03 Additional evidence supporting the need for CEQA review is provided by the updated Mitigation Monitoring and Reporting Program dated December 1, 2014. The fact that such mitigation measures are necessary confirms that the project has the potential for significant impacts that were not previously considered under CEQA. Each of the impacts to be mitigated (even if not covered above) — by virtue of the need for mitigation in the December 1 document—requires thorough, current study and public input through CEQA review. Be Good to the Earth:Reduce, Reuse,Recycle 0 INDEX OF EXHIBITS Exhibit Description DATE Noise N 1 Construction Noise: Exposure Effects, and the 2002 Potential for Remediation; A Review and Analysis N2 Construction Industry Noise Exposures: Construction 2004 Workers N3 The U.S. Lags Behind in Global Noise Pollution July 25, 2012 Standards N4 Controlling Noise on Construction Sites Undated N5 Limit Noise Rights to Protect Right of Quiet June 2010 Enjoyment for Center Tenants Water WQ1 Executive Order B-29-15 April 1, 2015 WQ2 Permeable v. Impermeable Surfaces January 2009 WQ3 Why is this House Wearing Stilts? May 2015 Public Services Psi USA Today, "The Price of Just a Few Seconds Lost: March 2005 People Die" PS2 American Dream Coalition, "Deaths Expected from April 1997 Delayed Emergency Response Due to Neighborhood Traffic Mitigation" PS3 Princeton University Industrial Relations Section, May 2008 "Do Response Times Matter? The Impact of EMS Response Times on Health Outcomes" PS4 KCOY News, "Faster Emergency Response Time for July 2012 SLO Residents" WORKING PAPER#527 PRINCETON UNIVERSITY INDUSTRIAL RELATIONS SECTION MAY 2008 http://www.irs.princeton.edu/pubs/pdfs/527.pdf Do Response Times Matter? The Impact of EMS Response Times on Health Outcomes Elizabeth Ty Wilde Columbia University *I am grateful to Orley Ashenfelter, Anne Case, Bryan Chamberlain, Angus Deaton, Hank Farber, Suzanne Gray, Jon Guryan, Rob Hollister, Bo Honore, Alan Krueger, Ilyana Kuziemko, David Lee, Joshua Legler, Molly Fifer McIntosh, Anna Wilde Mathews, Adriana Lleras Muney, Kevin ONeil, Christina Paxson, Irene Petrogeorge, Sam Picard, Uwe Reinhardt, Jesse Rothstein, Ceci Rouse, Analia Schlosser, Wangyal Shawa, Sam Schulhofer-Wohl, Courtney Stoddard, Betsy Tannahill, Iona Thraen, Vinayak Tripathi,Nick Virgen, Mark Watson, Don Wood, and Wu Xu. I would like to thank the Illinois Department of Public Health, Mississippi Department of Health,New York Department of Health, Utah Bureau of Emergency Medical Services, Utah Department of Health, Utah Department of Transportation, and the National Climactic Data Center(U.S. Department of Commerce) for allowing me to access their data. This work benefited from presentations to the Princeton Labor Lunch, the Princeton Public Finance Working Group, the Princeton Department of Economics and the Illinois Department of Public Health. This project was approved by the Princeton University Institutional Review Board, as well as the Human Subjects Committee of the Utah Department of Health and the Illinois Department of Health. Financial support was provided by the Princeton University Industrial Relations Section, a National Science Foundation Graduate Research Fellowship, and the Princeton University Center for Health and Wellbeing. ABSTRACT The introduction of technology aimed at reducing the response times of emergency medical services has been one of the principal innovations in crisis care over the last several decades. These substantial investments have typically been justified by an assumed link between shorter response times and improved health outcomes. But, current medical research does not actually show a significant relationship between response time and mortality. In this study, I explain the discrepancy between conventional wisdom and current medical research; existing research fails to account for the endogeneity of incident severity and response time. Analyzing detailed call-level information from the state of Utah's Bureau of Emergency Medical Services, I measure the impact of response time on mortality and hospital utilization using the distance of the incident from the nearest EMS agency headquarters as an instrument for response time. I find that response times significantly affect mortality,but not hospital utilization. A cost benefit analysis suggests that the anticipated benefits of a response time reduction exceed the costs and I discuss free-rider problems that might be responsible for the inefficiently high response times I observe. JEL: I12,I18,I10 Key Words: Emergency Medical Services,response time, mortality,cost-benefit analysis, free-rider Elizabeth Ty Wilde Health Policy and Management Mailman School of Public Health Columbia University New York,NY 10027 I INTRODUCTION Emergency Medical Services (EMS) experienced dramatic technological change over the last several decades. In the 1960's and 1970's, ambulance services primarily offered basic transportation to medical care. Frequently, funeral home directors doubled as emergency-services providers, using their hearses to haul patients. These volunteers typically had little, if any, knowledge of first aid.' Since the 1980s, though, ambu- lances have become sophisticated mobile intensive-care units that are staffed by licensed and trained professional paramedics and emergency medical technicians (Office of Rural Health Care Policy 2006). Technological advances, such as computer-aided dispatch ser- vices and mobile Geographic Information System (GIS) units on ambulances, allowed ambulances to reach patients far more quickly (see Athey and Stern 2000 for an evalu- ation of one such technology, enhanced 911). The push to reduce response times is predicated on the widely-held belief that faster responses will improve health outcomes. Response time is a commonly-used measure of EMS quality (Pons, Haukoos, Bludworth, Cribley, Pons, and Markovchick 2005, Bailey and Sweeney 2003). One of the goals of Healthy People 2010, a broad federal initiative aimed at alleviating the major preventable threats to Americans' health, is to "increase the proportion of people who can be reached by EMS within 5 minutes in urban areas and within 10 minutes in rural areas" (Emergency Medical Services 2001). The National Fire Protection Association (NFPA) recommends that, for at least 90 percent of EMS calls, Basic Life Support (BLS) services should get to the scene of a medical incident within four minutes. The association says that Advanced Life Support (ALS) providers should arrive within eight minutes for all EMS calls (Ludwig 2005, Pons and Markovchick 'University of Southern Alabama 2004,Blackwell and Kaufman 2002,Reines and Bartlett and Chudy and Kiragu and McKnew 1988,Emergency Medical Services: At the Crossroads 2006,Emergency Med- ical Services in Frontier Areas 2006. 1 2002, Blackwell and Kaufman 2002, Pons et al. 2005). Despite the assumption that response times matter, and the substantial investments that have been made to reduce them, very little is actually known about the impact of response times on the mortality and morbidity of patients. In the words of two med- ical researchers, "justification of specific time criteria for specific medical or traumatic emergencies is lacking" (Pons and Markovchick 2002). There are several reasons for this knowledge gap. One problem is the scarcity of good data: few states maintain data- bases that can be used to link response times to patient outcomes. Another challenge lies in the endogeneity of response times. EMS dispatchers collect important informa- tion about each incident that produces a call, and they can take actions that result in lower response times for the most critical cases. Such triage makes it difficult to obtain unbiased estimates of the benefits of lower response times, even when data are available. In this paper, I take advantage of comprehensive EMS records from the state of Utah, which include detailed patient and provider information, to identify the impact of response times on patient outcomes. I examine the direct impact of distance— mea- sured as the length between the agency garage and the "incident," or the location where a patient needs to be picked up — on response times. Then, using distance to closest authorized EMS agency headquarters as an instrument for response time, I measure the extent to which shorter response times affect health outcomes, including mortality and hospital utilization. I also examine whether the impact of response times varies de- pending on a patient's medical condition (i.e., strokes, falls, or fainting) and population subgroup (for example, age and/or gender). Section two provides a basic background on Emergency Medical Services. Section three reviews prior research on the impact of emergency response times on health and other outcomes. Section four describes the data. Section five introduces the econometric strategy. Section six presents the main results and results for various subgroups. Section seven explores potential mechanisms through which response times affect outcomes. 2 Section eight provides a cost-benefit analysis for reducing response times, explains why response times may be inefficiently high and provides potential policy recommendations. Section nine concludes. 2 EMERGENCY MEDICAL SERVICES BACKGROUND Emergency Medical Services are structured and funded in a variety of ways. Services are operated locally, generally at the town or county governmental level, although EMS jurisdictions may not perfectly match political boundaries (Emergency Medical Services, 2001). EMS agencies are typically operated by fire departments, police forces, hospitals, private ambulance companies (for-profit and not-for-profit), or special administrative districts. Emergency medical systems may be "one-tier," offering either advanced life support (ALS) or basic life support (BLS) ambulances,or "two-tier," providing both BLS and ALS. In 1996, approximately 75 percent of urban areas in the U.S. were served by two-tier systems (Nichol, Detsky, Stiell, O'Rourke, Wells, and Laupacis 1996). In urban areas, Emergency Medical Technicians (EMTs) and paramedics are typically full-time professionals,while rural agencies are generally staffed by trained volunteers. Emergency Medical Services are funded through a combination of municipal taxes, cell phone and telephone taxes, user fees, private donations, intergovernmental grants, and subscription fees. State-level regulators typically oversee local EMS agencies by monitoring EMT and paramedic training and licensing, but they are not involved in day-to-day agency operations (Emergency Medical Services, 2001).2 Despite variation in the administrative structure of local EMS agencies, most follow similar protocols when responding to calls. Typically, a caller reporting a medical emer- gency will call 911 or a seven-digit number and reach a dispatcher. The dispatcher may begin by providing medical advice over the phone, but most likely he or she will only 2For a more thorough introduction to Emergency Medical Services,see Nichol et al(1996),Emergency Medical Services at the Crossroads (2006), Emergency Medical Services in Frontier Areas (2006) or Braun, McCallion, and Fazackerley (1990). 3 assess the severity of the situation, determine the patient's address and then dispatch relevant medical resources to the scene. If there are no ambulance units available for this answering agency, then the dispatcher will contact another nearby community or agency to request mutual aid. The type of service dispatched depends on what is reported in the call. The dis- patcher might activate a first responder (FR) unit of police or firefighters; BLS units that are staffed by EMTs; or ALS ambulances that are staffed by paramedics. EMTs provide basic first aid, but they can only offer a limited number of other treatments to patients. Paramedics can treat severe trauma and also provide more advanced care, in- cluding "administering drugs, inserting intravenous lines, and opening airways through endotracheal intubation" (Emergency Medical Services 2001). After driving to the scene and finding the patient, the EMTs or paramedics provide medical care. Sometimes, they aim only to stabilize the patient before transporting him or her to a higher-order care facility. Other times, they provide life-saving treatments immediately, under the stand- ing orders of a physician. In most cases, the patient is transported to a hospital or other medical facility where he or she can receive more advanced care. Then, after filling out paperwork, the EMS personnel return to service (Emergency Medical Services 2001). Emergency medical services in Utah, the state examined in this paper, are typical of the services offered in most states. Within Utah, there are 201 licenses for EMS. Some agencies have multiple licenses, covering a number of territories or service levels, but these generally do not cover territories that precisely match up with political boundaries. Excluding air ambulances, there are 137 unique providers of ambulance services in Utah, including both ALS and BLS providers. In Utah, EMS is primarily funded through user fees (personal conversations with agency directors and Utah Bureau of EMS, 2006). All EMS agencies in the state follow the same protocol in treating patients. Calls are answered in the order in which they are received, and dispatchers follow cue cards in as- certaining the severity of the condition. By state law, EMS agencies cannot discriminate 4 on the basis of race or ability to pay (Emergency Medical Services 2001). 3 RELEVANT LITERATURE The current evidence on the effectiveness of reduced response times is extremely limited. It was largely drawn from observational studies of patients suffering from a few very specific medical conditions—most commonly cardiac arrest, which accounts for just one percent of EMS calls. These studies, which often had very small samples, typically found a negative correlation between cardiac-arrest response times and survival. A meta-analysis of studies which reported mean response times and survivorship showed that, on average, shorter response times were associated with higher survival likelihood (Nichol et al. 1996). In that meta-analysis, a one-minute decrease in mean response time was associated with an increase in survival in a one-tier system of 0.4 percentage points (mean survival rate: 5.2 percent). In a two-tier system, the increase was 0.7 percentage points (mean survival rate: 10.4 percent) (Nichol et al. 1996). Only a handful of studies have examined the relationship between response times and outcomes for people suffering from conditions other than cardiac arrest, even though these patients generate the vast majority of EMS calls. These studies have generally found no association between response times and survival. One of them analyzed out- comes for trauma patients who were transported to one particular trauma center over a two-year period. It found that, after controlling for the trauma category, age group, and other factors, there was no difference in survival based on response times (Pons and Markovchick 2002). Patients who might have been most affected by response times– specifically, those who were dead on arrival–were excluded from the study.3 Pons and Markovchick also found that ambulance drivers who take longer to arrive at the scene 3Other studies of trauma patients have found no association between total out-of-hospital time and survival(Pepe,Wyatt,Bickell,Bailey,and Mattox 1987). However,this evidence is difficult to interpret, since out-of-hospital time includes both response time to the scene and time spent treating the patient at the scene. 5 take longer to get from the scene to the hospital. This evidence is consistent with discretion on the part of ambulance drivers, which I discuss below. Just two studies have looked at the impact of response times on a broad selection of EMS calls, rather than examining only incidents involving trauma or cardiac arrest (Pons et al. 2005, Blackwell and Kaufman 2002). Like the examination of trauma patients discussed above, these studies find no association between response times and patient survival. However, both studies suffer from significant weaknesses. One is that they examine only patients who were admitted to hospitals. Blackwell and Kaufman focus solely on patients experiencing "emergencies" who were transported to a particular trauma hospital. Both studies exclude patients who were dead on arrival. Pons et al. (2005) do not control for incident location or any characteristics of the incident location; Blackwell and Kaufman (2002) do not control for any community or individual characteristics – such as illness or demographic indicators – that might have influenced both response times and outcomes. Despite these methodological shortcomings, Pons et al. conclude that "there is no effect of paramedic response time on patient outcomes.i4 Blackwell and Kaufman state that "there is little evidence to support reducing the current adopted emergency response times," although they did detect a slight benefit when response times are less than five minutes None of these studies account for a key factor that almost certainly impacts response times: EMS personnel may respond more quickly to the most serious and life-threatening situations. If this endogeneity of response time is ignored, then estimates of the "ef- fects" of response times on patient outcomes will be biased downwards. There are many reasons to think that endogeneity of response times is a very real problem in doing such analyses. Even detailed call reports cannot capture all of the information communicated by dispatchers to ambulance drivers—communication which may be as subtle as the dis- 4 Pons et al. find no survival benefit from a paramedic response time of less than 8 minutes, but do find a survival benefit for response times of less than four minutes for a subset of patients (those considered to be of "intermediate" or "high" risk of mortality, as defined by the study authors). 6 patcher's tone of voice. Dispatchers tell drivers and paramedics the basic circumstances of incidents, including information which allows drivers to determine whether or not to rush to the scene. Because riding "hot" can carry significant risks for EMS personnel, the decision about whether to activate lights and sirens and travel quickly to the scene is almost always at the discretion of the paramedics. A study of one community supports the idea that EMS personnel do adjust their response times in response to the severity of the incident. After this community instituted a priority dispatch system, response times for more severe calls dramatically decreased, but they increased significantly for less severe calls (Slovis, Carruth, Seitz, and Elsea 1985). One way to account for endogeneity of response times is to examine how technolog- ical changes that affected response times altered patients' outcomes. This approach is taken by Athey and Stern, who examine how 911 and enhanced 911 services influence the outcomes of heart patients (Athey and Stern 1998, 2000, 2002). The adoption of 911 capacities may improve outcomes by reducing response times. One paper's results indicate that enhanced 911 services significantly reduce average response time but, in the reduced form, do not significantly affect mortality (Athey and Stern 1998, Table 6 and Table 9). The most recent Athey and Stern paper, which uses a somewhat different specification, indicates that 911 services do improve outcomes for heart patients (Athey and Stern 2002). However, this article does not present evidence on the effects of 911 on response times. One potential problem with this general identification strategy is that the expansion of 911 services reflects policy decisions and technological advances, and policy decisions could be influenced by factors correlated with patient health. In addition, as discussed above, heart incidents represent only a small fraction of EMS calls. I contribute to the existing literature in several ways. First, I resolve an empirical puzzle. Despite the widespread belief that response times matter, existing medical re- search shows no significant impact from response times on outcomes except in a few 7 very special cases. I explain why this is so. Second, I introduce a new way of handling the endogeneity of response times which does not rely upon policy changes which might themselves be endogenous. I instrument for response times with the distance from the incident location to the provider. Third, I provide more accurate estimates of the impact of response times for all conditions, not only cardiac incidents, by controlling for covari- ates including census block group characteristics not previously available to researchers. I also look at the impact of response times for particular population subgroups, as well as for many health outcomes never previously studied. Fourth, I suggest a mechanism through which response times affect health outcomes. Finally, I provide an explanation for the inefficiently high response times which I observe in the data. 4 THE DATA The primary data in this study came from the 2001 Utah Prehospital Incident Dataset, a collection of all prehospital incident reports collected in Utah between January 1, 2001 and December 31, 2001 (Utah Prehospital Incident Data 1999-2005). In Utah, every dispatched ambulance is required to complete a detailed incident report which includes patient demographics (such as age, race, name, and birth date), the incident address, a description of the patient's major complaint, the medications and treatments administered, the patient's vital signs at the scene, and the outcome of the incident.5 I defined response time as the difference between the time that the ambulance is dispatched and the time that the ambulance arrives at the scene. This definition was consistent with the work of several other researchers (Athey and Stern 1998, Key et al. 2002, Lerner, Billittier, Moscati, and Adolf 2002, Cummins at al. 1991, Stueven, Waite, Troiano, and Mateer 1989, Grossman, Kim, Macdonald, Klein, Copass, and Maier 1997, Scott, Factor, and Gorry 1978). For a small proportion of the Prehospital Incident sample, I knew the time of the initial call, when the dispatcher was notified, and when 5Appendix A contains a more detailed description of this data. 8 the paramedic or EMT arrived at the patient's side (Utah Prehospital Incident Data). On average, as shown in Table 3, two of these three additional response-time components added 0 minutes or less to the total response time. The third additional response-time component (time from arrival at scene to arrival at patient's side) is measured for less than 300 patients and isn't from a representative population of patients. Therefore, it is likely that these unrecorded response-time components would increase total response times by a small amount, an assumption that makes sense because most homes and businesses in the Salt Lake City metropolitan area are not in densely populated areas or tall buildings.6 I used two sources of outcome data: the Utah Emergency Department Encounter Dataset (2001) and Utah mortality records (2001-2002). Utah law requires that all hospitals in the state provide reports of every Emergency Department (ED) admission to the state Department of Health. These reports contain the name, admission date, admission time, birthdate, mortality risk, condition severity, outcome, total charge, number of procedures, and primary diagnosis for each patient.? The Utah death data, which come from the state Office of Vital Statistics, include the name, age, race, time and location of death for all deaths of Utah residents that occur within the state. These death records allowed me to capture mortality outcomes for all patients, not just those who died within hospitals, so that my analysis includes patients who were dead when EMS arrived. I merged the Utah Emergency Department data and mortality records with the pre- hospital records using probabilistic linking software LinkPlus (Utah Prehospital Incident Data 1999-2005, Utah Death Data 1999-2005). I include complete details of this merging 6Morrison et al. documented a median scene-to-patient time of 1.43 minutes in a study of ambulance response times for high-priority patients in an area with high population density and a high density of high-rise buildings, suggesting that even if there were many calls to tall buildings, the additional cost in response time would not be very high (Morrison, Angelini, Vermeulen, and Schwartz 2005). Other studies have found similar results (Campbell, Gratton, Salomone, and Watson 1993). 7The Utah Department of Health is currently merging records from Emergency Department data with Utah Ambulatory Surgery and Hospital Discharge data records, so that I can look at other outcomes. 9 process in Appendix B. To construct the instrument for response time, I standardized and geocoded each incident, provider and hospital address using ARCMap Version 9.1. 1 used the latitude and longitude of each of these locations to calculate the distance between the patient and the provider and the patient and the hospital (if admitted). Using ARCMap, I also identified the census block group for each incident, and merged census 2000 demographic summary data with incident information (Census 2000 Summary File 3 2000). I identified weather, traffic and daylight conditions for each incident. To capture weather conditions, I merged hourly weather readings from the Utah weather station closest to each incident (Integrated Surface Hourly Database 2001). To capture local traffic conditions, I linked hourly measures of traffic congestion (volume) from the clos- est Utah Department of Transportation traffic station (Utah Automatic Traffic Counter Data 1990-2005). I identified whether an incident occurred before or after sunrise and sunset using the latitude and longitude of the county of each incident and daily sun- rise and sunset data provided by the Canadian government (Sunrise/Sunset/Sun Angle Calculator 2007). I restricted the regression sample in several ways. I excluded cancelled and standby calls, and I dropped duplicated prehospital reports. In some cases, EMTs and para- medics from more than one ambulance may provide care to the patient. When this occurred, there were multiple reports for the same patient from the same incident. I included only the report from the first EMS on scene, following Nichol et al (1996), and Fischer, O'Halloran, Littlejohns, Kennedy, and Butson (2000). However, using different individual incident reports for cases in which there were multiple reports did not affect the results of my analysis.$ In some cases, multiple individuals were involved in one incident, i.e. a traffic acci- 8My results are not sensitive to using other reports taken at the scene, including the report with the longest measured time at scene, longest time to arrival at scene, and the report with fewest missing values. 10 dent. In such cases,there would be even greater reason for concern about the endogeneity of response times. If there were ten people at the scene, presumably the EMS would first help the patient who was most severely injured. Even though I measured response times from dispatch to arrival at scene (and not arrival at the patient), this might still be a concern for my analysis. However, regressions which excluded patients involved in incidents with multiple patients produced results very similar to the original regressions. Finally, I observed all patients who used any EMS in Utah in 2001. I saw some patients more than once. If patient outcomes within individual are correlated across time, then by treating each incident as an independent event, I may be overstating the true variation in the dataset. As a specification check, I excluded individuals who appeared in the dataset more than once (in different incidents) and my results were unaffected.9 I excluded calls which did not have descriptions of the patients' major complaints, the response times, or geocoded incident addresses. For reasons discussed below, I ex- cluded patients outside of the Salt Lake City metropolitan area, defined by the following counties: Weber, Morgan, Davis, Salt Lake, Summit, Utah, and Toelle. These repre- sented 86 percent of the calls in the prehospital database. Appendix Table 9A contains a count of the number of observations lost due to each of these restrictions. Figure 1 provides a visual representation of a typical community in the Salt Lake City metropolitan area; census block groups are outlined with a thin line, EMS incidents are identified with diamonds, circles identify hospitals, and EMS agency headquarters are represented with squares. The boundary for each EMS territory is identified with a thick line. 9I also clustered the observations along the following dimensions: individual ID; incident ID; emer- gency medical technician id; block group; tract; zip code; and county. In these cases when I clustered along a single dimension, the results were similar to the current regression specification, which does not involve clustering. In addition, I experimented with clustering on multiple dimensions (Cameron, Gelbach, and Miller 2006). And in all cases, the variance estimate had negative elements on the diago- nal, which according to Cameron et al., "primarily occurs when there is actually no need to cluster in more than one dimension" (Cameron et al. 2006). For this reason, all results are reported using robust standard errors. 11 Table 1 shows demographic characteristics for the Utah Prehospital Regression Sam- ple. Patients using EMS are much more likely to be over age 65 and slightly more likely to be white and female than the general population of Utah. Utah is considerably younger, more homogenous, and more white than the rest of the United States. Table 2 presents the distribution of patient complaints and shows how I combine these descriptions into larger categories of complaints, as well as the 1-year mortality rates for each complaint. The most common patient complaints are traffic accidents (16 percent of all calls) and transfers between hospitals (nine percent of calls). It may not be obvious why I include transfers in the analysis. In fact, EMS are often used to transport trauma patients (or patients who are otherwise very ill) from hospitals or clinics to trauma centers, and not just for scheduled "non emergency" transfers.10 Heart and breathing problems, fainting, and trauma are also quite common. Table 3 provides summary statistics on response time, the distance from the closest provider agency to the incident, and the distance from the incident to the intake hospital. Patients admitted to hospital emergency departments (EDs) are, on average, closer to their EMS providers than to their hospitals. In general, paramedics and EMTs spend more than twice as much time (18 minutes) at the scene as they do getting to the scene (eight minutes); it also takes longer to arrive at the final destination than it did to arrive at the scene (12.9 minutes, on average). Table 4 supplies summary statistics for several outcome variables. First, I report mortality within one, two, 30, and 90 days and 1 year and four years of the incident. Approximately two percent of EMS patients die within two days; four percent die within 30 days, and around 10 percent die within one year. Next, I provide summary statistics for two intermediate health indices constructed using information gathered at the scene (Athey and Stern 2000). I constructed the first index by regressing an indicator for two- day survival on four Glasgow trauma score categories, four respiration-rate categories, 10My results are robust to the exclusion or inclusion of transfers (please see appendix Table 5A). 12 four blood-pressure categories, and an indicator for whether the patient's pulse is greater than 40; these coefficients are multiplied on the patient's own characteristics and used to predict two-day survival. I constructed the second index by regressing an indicator for two-day survival on five revised trauma score categories; I again used these coefficients to predict the likelihood of 48-hour survival. A higher score represents a higher survival probability for both indices.11 Finally, Table 4 also shows the average number of ED procedures, the total charge for ED care, and the probability, conditional on being admitted to the ED, of being at high risk of mortality or of having a severe injury, as assessed by the hospital. Table lA in the appendix contains definitions and sources for each of the variables used in the basic specification. 5 ECONOMETRIC FRAMEWORK In the standard econometric framework in the medical literature, outcomes are modeled as a function of response times12: Yi = a+RTJ+Xi/ +Ei (5.1) Where: Y = Outcome for individual-incident i RTi= Response Time for individual-incident i measured from time of dispatch to time at scene, first responder at scene Xi = A vector of individual incident characteristics (i.e. age, gender, dispatch code, 'When I restrict the sample to only heart patients,the coefficients in both probit regressions are very similar to those reported by Athey and Stern (2000). 121 present the standard model as a linear probability model rather than a logistic regression for ease of presentation. 13 i local demographics, traffic and weather conditions). ei= error I propose that ei can be decomposed into two terms: 'i = µi +Oi (5.2) where: Oi= a residual component of severity that is not observed by the ambulance driver or the researcher and µi= a measure of severity which is observed by the ambulance driver, but unobserved by the researcher. Because the ambulance driver knows pi, response time may depend in part on it, and E(eiRTi) # O.As long as E(eiRTi) < 0, then ordinary least squares (OLS) estimates of mortality on RT will be negatively biased. This may explain why ordinary least squares (or logistic regressions) which fail to account for the endogeneity of response times often find no significant relationship between mortality and response times. To address this endogeneity, I used an instrumental variable (IV) — distance from incident address to address of closest assigned provider agency—which is correlated with response time, but uncorrelated with severity. This instrument allowed me to estimate the true effect of response times on outcomes. I also controlled for a wide variety of factors which might affect both outcomes and response time, including weather, month, weekend interacted with hour-of-day fixed effects, and primary complaint indicator vari- ables. I also included census block group characteristics: area, total population, density, the proportion of community members living below the poverty line, the proportion of the population not receiving government assistance, the median income, the proportion of the block group that is rural, and the proportions of the population that are,respectively, 14 younger than five, between 16 and 65, and older than 65.13 I exclude any variables that might be considered endogenous to response time, in- cluding time at scene, distance to hospital, and treatments and medications which might potentially be affected by time to scene. I explore these intermediate outcome variables in a later section, as I try to determine the mechanism through which response time affects outcomes. Instrument validity One concern with the instrument is that it may identify patients who live in exurban areas, and who are different in ways which may be correlated with both response times and outcomes. For example, "distance" may identify patients who live very far away and only call EMS when they are very sick.14 For this reason, I identified response times from the variation in distance to providers within census block groups within the Salt Lake City metropolitan area. In my basic regression specification, I included census block group characteristics, so that I could identify and control for health variations between block groups. Block groups are the smallest census unit for which summary data are readily available; they fall within census tracts which are already "designed to be homogeneous with respect to population characteristics, economic status, and living conditions" (Geographic Area Description: Census Block Groups 2000, Geographic Area Description: Census'Facts 2000). In the Salt Lake City metropolitan area, block groups have a mean area of 5.36 square miles with an average population of 1,631. Within block groups, the variation in distance from incident to closest agency comes from two sources: differences in the distance to the provider when only one provider covers the entire the block group, and variation in the distance to the provider when 13I tried specifications including fixed effects for ambulance ID, EMT ID, individual patient ID and incident ID fixed effects, but these variables did not do a good job explaining outcomes and had little effect on the coefficient of interest. 14 One study, using Veterans' Administration (VA) patients, identified a correlation between distance and mortality; "Patients living more than 20 miles from their admitting hospital were more likely to die independent of their likelihood of receiving VA outpatient follow-up" (Piette and Moos 1996). Piette and Moos suggest that these differences in mortality were due to the quality of the follow-up care, but they cannot rule out the possibility that people who live farther away from medical facilities are sicker. 15 more than one provider covers territory within the block group.15 To test whether sicker individuals intentionally locate near ambulance agencies within block groups, I explored whether the distance to the provider differs significantly by observable patient characteristics.16 I regressed indicators for individual age categories, race, and gender on the dis- tance to closest provider agency, and I find that these observable characteristics are significantly correlated with distance to agency. Neither the first stage nor the IV es- timates in regressions which include race, gender, or age as right-hand-side variables differ appreciably from the regressions which do not include these variables, suggesting that even though these observed characteristics are correlated with distance, unobserved severity is not significantly correlated with these variables. I also regress years of ed- ucation (available only for those in the mortality dataset) on distance to closest EMS agency and find that there is no significant relationship within this subsample between education (a proxy for SES) and distance. Finally, it is possible that when agencies divide block groups into separate jurisdictions, they do so to avoid (or to capture) sicker patients. My informal conversations with EMS agency directors suggested that these agency borders largely follow natural boundaries (mountains/rivers), railroad tracks, community/township lines, county lines, and major roads. Of course, this does not rule out endogeneity. But because there are few census block groups that contain multiple provider jurisdictions, this appears to be a minor threat to the validity of my instru- ment.17 1580 percent of the variation in distance is between block group variation and 20 percent is absorbed by block group fixed effects. 16 Conversely, agencies might locate near areas where many sick people live. 171 interpreted the coefficient on response time in the instrumental variables estimate as an average treatment effect rather than a local average treatment effect. In this context,the marginal patient whose average treatment effect is measured by the IV is actually the representative patient using prehospital care-and not a member of a unique subset of prehospital patients. Although distance might appear to be a more relevant predictor of response time for the patients with the highest unobserved severity,this does not change the interpretation of S which represents the average treatment effect of response time on outcomes, equivalent to that measured if response time were randomly assigned within the population. 16 6 RESULTS FOR RESPONSE TIME AND MORTALITY I first present results for the impact of response times on mortality, measured within one day, two days, 30 days, 90 days, 1 year and 4 years of the incident. Row 1 of Table 5 contains the reduced form estimates of the impact of distance to closest non-mutual aid EMS agency on mortality. Row 2 of Table 5 contains ordinary least squares estimates of the impact of response times on mortality, where mortality is an indicator equal to 100 for all of those who were identified in the mortality records within the allotted calendar amount after the prehospital incident. Finally, Row 3 of Table 5 contains the instrumental variables estimates of the impact of response time on mortality, measured at different intervals. Row 4 contains the first stage: the estimated impact of distance on response time. All specifications include month, weekend, hour of day, and weekend by hour of day fixed effects, as well as weather indicators and block group characteristics. In all regressions I also include indicators for the primary patient complaint.18 All results are reported with robust standard errors. Table 5 shows that response times matter. I consider six outcome measures, and I present OLS and IV estimates, the latter shown both as the reduced-form effect of distance on outcomes and as the implied effect of response times. Reduced-form coeffi- cients of the impact of distance on mortality show that incidents that occur farther from agencies are more likely to result in deaths. The coefficients are positive and, for all but one-day mortality, statistically significant. An extra one-tenth of a mile is estimated to increase the probability of mortality within 365 days by more than two-tenths of a percentage point. The first-stage estimates show that distance predicts response time. The marginal impact of a mile on response time is approximately a tenth of a minute, and this re- lationship is highly significant with a t statistic>10, indicating that I do not need to 18For a small proportion of calls (less than 1%), the patient is listed as Dead upon Arrival at the scene by EMS (DOA);these patients are included in the analysis, although the results are not sensitive to their exclusion. 17 worry about weak instruments.19 Response times differ considerably by complaint: for example, all else equal, the average response time for cardiac arrests calls is almost two minutes less than the omitted category (abdominal pain); electrocution and chok- ing also had considerably shorter average response times, along with a number of other complaints. The OLS estimate of the impact of response time one-day mortality is nega- tive. The OLS estimates for mortality measured over longer periods are mostly positive, but are never statistically significant. These point estimates imply that a one-minute in- crease in response time affects mortality by less than three-tenths of a percentage point. Overall, these results are consistent with the limited previous research in the medical literature, though these earlier analyses do not account for the endogeneity of response times. Finally, the instrumental variables impact of response time on mortality is positive and significant in all but the first day after the incident, and increasing over time. The coefficients on indicators for stab and gunshot wounds, strokes, breathing problems, cardiac arrest incidents were particularly noteworthy; all are positive and significant. In the reduced-form regression of mortality on distance, the coefficient on distance is also positive and significant for all but one-day mortality, and it increases when mortality is measured over longer periods. The marginal impact of a response-time increase of one minute on mortality at 365 days is approximately 1.26 percentage points (which, given a mean mortality rate of 9.8 percent, represents an approximately 13 percent change). Note that if the instrument was correcting for classical measurement error, I would expect the coefficient on response time in the IV regression to increase in absolute value in the same direction as the OLS coefficient. This is not what I find. Therefore, these results are consistent with the presence of an omitted variable, "severity," which is negatively correlated with response time, and missing from the OLS equation. 1917or a small subset of the sample, I have odometer measures of the actual distance travelled by the ambulance enroute to the call; in the first stage for this subsample, the coefficient on distance is approximately .19 with a standard error of.09. 18 My estimates are larger than the estimates from the only article in the medical research which attempts to measure the impact of response times on overall patient survival, Pons et al (2005),which finds no significant impact of response times on patient outcomes except for response times less than four minutes.20 My measured impact of response times on mortality (13 percent) is also higher in percentage terms than results found in observational studies in the cardiac literature, which suggest a three- to seven- percent decrease in mortality following a one-minute decrease in response times (Athey and Stern 2000, Larsen et al. 1993 ). I have explored a variety of other specifications which I discuss here. One specifica- tion check involved investigating functional form. For ease of interpretation, I estimated all models using linear probability models, but the results are equivalent using both logistic and probit models. The significance and direction of the coefficients are also ro- bust to using the logarithm of response time (Table 3A). I also ran specification checks where I excluded particular groups which I thought might be particularly influential. None of the results are significantly affected by any of the following actions: excluding transfers; excluding mutual aid calls; excluding those labeled as DOA; excluding pa- tients (incidents) outside of Utah; and restricting the sample to incidents with only one report or one patient. Including temperature, indicators for daylight savings time, or indicators for the incident occurring before or after sunset or sunrise also did not affect the main results. I thought that other covariates may be significantly correlated with response times and outcomes - such that omitting these covariates would significantly bias my results. But my results are not affected by including different permutations of hour-of-day or day-of-week interactions; excluding weekend, month or day fixed ef- fects; excluding weather variables; including indicators for patient location and incident location (playground, home, etc.); including traffic measures; including indicators for Olympic location or tourist location; including hourly EMS call congestion numbers; 2013lackwell and Kaufman limit their sample to "emergencies." 19 not controlling for the primary complaint; or including dispatch codes instead of the primary complaint. Nor does including race, gender and age covariates, or character- istics of tracts, places, zip codes, or counties on the right hand side. As an additional robustness check on the identification strategy, I also ran additional specifications where I control for block group fixed effects. The F statistic on the first stage is slightly less strong in the specifications which include block group fixed effects, but the IV results are similar to those reported in Table 5, as can be seen in appendix Table 2A. The IV coefficients and standard errors increase in size with the inclusion of block group fixed effects. Including the distance to the closest hospital as a covariate does not affect the main results either, as Table 4A shows. Heterogeneous Treatment Effects The effects of response times for outcomes may vary across different types of in- cidents. To examine whether this is the case, I divided the primary complaints into the six categories listed in Table 2: transfers, traffic accidents, strokes/falls/fainting, heart problems/breathing problems/cardiac arrests, ear/eye/psychiatric problems, and trauma (electrocution, gunshot wound, etc.). These groups are of similar sizes. Each type of complaint is interacted with response time. I created the distance instrument similarly. In Table 6, I report the Cragg Donald Test statistic (equivalent to the first stage F statistic used to determine whether instruments are weak, but used with multi- ple endogenous regressors), and the complete instrumental variables results.21 Distance is highly significant in the first-stage equation with a Cragg Donald test statistic of 15. In the OLS results not reported here, more than one-third of the response-time coeffi- cients are negative. In only one instance are the response-time coefficients consistently positive and significant (traffic accidents). The IV estimates shown in Table 6 are quite different from the OLS estimates and 21 Rather than estimate the effect of response time separately for each condition or major category, I constrain the impact of other covariates to be the same and estimate the effects jointly. Splitting the sample by condition pushes too hard on the data - given the number of covariates in the basic specification and the frequency of some of the conditions. 20 generally indicate that lower response times reduce mortality across all incident types, with the possible exception of trauma. In the instrumental variables regressions, the rel- evance of response times to outcomes generally increases as mortality is measured over a longer time period. For four of the complaint categories, response times positively and significantly affect mortality measured at 30 days and 1 year and for five out of six complaint groupings, instrumented response time is significant for mortality at 90 days and mortality measured at 4 years. For all specifications, the impact of response time on mortality differs significantly between complaint categories. In general, the in- strumental variables estimates for the impact of response times on mortality are more positive for transfers and other issues than the overall IV estimates and less positive than the overall IV results for other categories, including cardiac issues. It may seem somewhat surprising that the effect of response times on mortality is high for transfers and other issues, and relatively small for heart problems and trauma. But transfers in- clude transfers between, for example, airports and nursing homes to secondary hospitals (and therefore populations which may be very sick), and other issues include a wide variety of complaints (such as fever and diarrhea) for which prompt intervention may be especially important.22 To see whether the impact of response times differs across gender and age, I also ran IV regressions for various demographic groups separately. In Table 7, I include regression results from separate regressions for men and women, and for major age categories (<15, 15-25, 25-65, and over 65). I find little difference in results between men and women, but great variation by age;very young and middle-aged patients appear to benefit substantially less from response time improvements than do young adults and older people.23 Because Utah's population is more than 89% non-Hispanic white, there 22 Almost 80 percent of transfers and transports are to hospitals. More than one third of these transfers to hospitals are between hospitals. These transfers are almost entirely from urban hospitals with less beds and lower case mix indices, which are less likely to be teaching, hospitals to more sophisticated urban hospitals. The remaining transfers to hospitals are from long term care facilities, mental health facilities, airports, the scene, homes, and other locations. 23 Base mortality rates for men and women are similar,but average mortality rates differ considerably 21 are not enough calls by nonwhites to estimate treatment effects separately by race (U.S. Census Bureau Census 2000). 7 THE MECHANISM There are several potential mechanisms through which EMS response times could affect patient outcomes. One is that earlier EMS arrivals stop the deterioration and limit the extent of dam- age to patients' internal organs. The sooner the paramedics arrive, the less the damage, and the smaller the later chance of death. This explanation is consistent with the find- ing that the probability of death is increasing over longer time periods. Some existing literature supports this mechanism. An article comparing survivorship between systems with EMTs versus systems with paramedics found that "intravenous medication and intubation has survival benefits" (Cummins et al. 1991). This evidence suggests that the timing of treatments matters: presumably patients served by EMTs would have ac- cess to any of these treatments after reaching the hospital.24 More recently, randomized controlled trials have supported existing evidence on "the importance of early access to defibrillation for improved survival in out-of-hospital cardiac arrest" (Callans 2004). Re- searchers who placed defibrillators in random locations throughout a community found that reducing the time to defibrillation significantly increased survival (Callans 2004). This mechanism would explain why the probability of dying at any point is higher for patients with longer response times. These patients, with more "damage," may or may not have worse vital signs, as measured at the scene, because vital signs may not capture "damage." But they should have higher hospital admission rates, and should by age: over 39 percent of those over 65 who call EMS die within one year, but less than 7 percent of those between 25 and 65,less than 2 percent of those between 15 and 25 and less than 2 percent of those under age 15. 24 By contrast,a review of 13 randomized controlled or cohort studies examining the impact of pharma- cological interventions by paramedics found "no evidence that any medication given by the prehospital care provider is beneficial or cannot safely be delayed until arrival at hospital" (Shuster and Chong 1989). 22 be, conditional on hospital admission, in worse shape in the emergency department. Fi- nally, EMTs and paramedics should choose hospitals which are closer for these patients, because they are in more danger of dying, which is also consistent with the data.25 This explanation does not suggest that the treatments or medications provided to patients experiencing longer response times will be any different from those provided to patients with shorter response times; nor would the time at the scene be any different, since the treatments and medications are equivalent. Rather, it is the timing of the medica- tions and treatments which is essential. That is what differentiates patients with longer and shorter response times, rather than any disparity in the substance of caregivers' interventions. In Table 8, I look at how response times affect ED admission, total ED-related charges (expressed in natural logs), the number of procedures within the hospital con- ditional on admission to the ED, the probability that a patient in the ED is assessed as having a very severe condition or being at high risk of mortality, the distance from the incident address to the hospital (for admitted patients), health index 1, health index 2, which are measured at the scene, and time at scene.26 It is not clear how response times should affect costs. Patients made sicker by longer response times might have higher costs, if they require more intensive treatment. Conversely they may result in lower costs because they are more likely to die (Dier, Yanez, Ash, Hornbrook, and Lin, 1999).27 21 One might also expect these patients to use overall more health resources in the years after the initial prehospital incident because they are in worse health. The Utah Department of Health is in the process of providing me with additional data including ambulatory surgery and hospital discharge records which I will use to evaluate this claim. 26I also regressed indicators for individual hospitals on response times. The response time to the scene does also seem to affect the choice of hospital by the EMS personnel. I do not look at the impact of response time on individual health status measures (blood pressure indicators,pulse,Glasgow coma score, or respiration) because individually these do not provide a reliable picture of the patient's condition at the scene. 27 According to Dier et al,because laboratory procedures and emergency department expenditures are distributions with many zeros and/or long right tails it is typical to transform them into the log scale. This "shortens the long right tail, lessens heteroscedasticity, and decreases the influence of outliers" and in practice, makes the distribution close to normal (Dier et al. 1999). If the dataset is sufficiently large, "OLS regression on the untransformed data... will provide unbiased estimates of the regression 23 Table 8 follows the same format as Table 7. The first row contains the reduced form of outcomes on distance, the second row contains the OLS estimates, the third row contains the IV estimates, and the final row contains the first stage. The basic specification is that of the mortality specification with month, weekend by hour-of- day fixed effects, primary complaint indicators, weather indicators, and block group characteristics. All results are reported with robust standard errors. The first regression includes the entire regression sample, but columns 2 through 6 only include patients admitted to the hospital. Columns 7 through 9 have smaller sample sizes because of missing data. These results show that response times affect the likelihood of being admitted to the ED. However, conditional on being admitted to the ED, response time does not signifi- cantly affect health care utilization: the IV estimates of the impact of response time on the number of ED procedures and total ED expenses are not significantly different from zero.28 Response times also significantly affect the condition of the patient as assessed in the ED. Patients with longer response times are more likely to be considered at high risk of mortality and to have more severe conditions, as Columns 4 and 5 show. It appears that response times also affect the choice of hospital; response time is negatively corre- lated with the distance from the incident to the hospital to which patients are admitted. The implication is that EMTs and paramedics take patients with longer response times to closer hospitals, while those patients who have shorter response times are transported to more distant facilities. This may be because paramedics grant patients less influence over the choice of hospital when they are in worse condition, or paramedics may sim- ply want to get patients to the closest possible hospital. It is not particularly surprising parameters" (Dier et al. 1999). In this project, I treat each patient incident as largely independent. I used the natural log of ED expenditures and the untransformed number of ED procedures as measures of health care utilization. 28 Unfortunately,I do not have a measure of each facility's"cost to charge"ratio. This ratio,produced by the Healthcare Cost and Utilization Project, allows researchers to convert hospital charges into actual hospital costs. Then,they can identify when providers are actually treating patients equally and "providing the same relative value," but have a different cost structure,and when, instead,discrepancies in charges truly represent differences in care (Dier et al. 1999). 24 that response times do not significantly affect either health index—suggesting that these health indices may not capture long-term "damage." Response times also do not affect the time that EMTs and paramedics spend at the incident scene. In regressions not reported here, I find that response time does not consistently predict medication usage or treatments. A complete list of the medications and treatments provided to EMS patients is included in Appendix Table 8.29 A second potential explanation for increasing mortality over time is that patients who experience initially longer response times are more likely to make additional calls to EMS and therefore experience longer response times again. I ruled out this mechanism. Because 39% of EMS calls occur at home, if an initially longer response time causes damage and also increases the likelihood of making additional EMS calls, then later EMS calls will likely compound this effect. This mechanism implies that patients with longer response times experience more subsequent EMS calls, and the hazard of death conditional on survival for those with initially long response times should be increasing over time, rather than constant. I provide evidence to evaluate these claims. First, I created individual identifiers for each person who ever appears in the prehospital data set (an individual could appear as a patient multiple times). Then, I calculated the average number of EMS calls following the initial call. I find that this number is zero for both patients above and below the mean of the distance from the incident to the provider, suggesting that a mass of so-called "additional" EMS calls are not responsible for causing increasing damage to patients farther from agency locations. Second, looking directly at the hazard of mortality for EMS patients who experienced initially longer response times, even after controlling for survival from initial periods, there appears to be a continued, but not increasing, 29 Given that outcomes for a given individual may be correlated, it is possible that by treating each regression as an independent test that I may over reject the null hypothesis. Kling and Liebman have suggested several options for overcoming this problem, including an adjusted Bonferroni procedure, a Westfall-Young procedure, or running seeming unrelated regressions which allow for errors between regressions to be correlated (Kling and Liebman 2004). 25 impact of longer response times on mortality.30 For example, The IV estimate for the hazard of mortality in day 2 conditional on survival to day 1 is .1803 (with standard errors of .0906). The hazard of mortality by day 30 conditional on survival to day two is .4236 (.1288), while the hazard of mortality by day 90 conditional on survival to day 30 is .3375 (.0952).31 If this explanation were true, the hazard of mortality should be increasing and the number of subsequent EMS calls for patients with distances to their providers above the mean should be greater than zero, which is not what I find. 8 COST BENEFIT ANALYSIS AND ONE POTENTIAL EXPLANATION FOR UNDERPROVISION In this section, I provide a cost-benefit analysis for reducing response times in the Salt Lake City metropolitan area. While there are clear advantages to reducing average response time, there are also costs. Unfortunately, I do not have cost data for the ambulance agencies within the Salt Lake City metropolitan area. Even if I did have such data, it is likely that differences in accounting and budgetary practices would make it very difficult for me to accurately determine per-agency ambulance costs (Peter Buchard, Naperville, IL, City Manager, personal communication, August 2006). The marginal cost of reducing response times between communities is likely to vary with a number of characteristics, including density, area, traffic, geography, weather and demographic characteristics.32 Lacking the actual cost data, I assume a constant marginal cost for ambulances within the Salt Lake City metropolitan area. I use $450,000 as the estimated cost per additional ambulance, 30What I call a hazard here is simply the IV estimate of the impact of the initial response time on mortality in this period conditional on survival to the previous period. "The hazard of mortality by day 365 conditional on survival to day 90 is.3320 (.1175) and the hazard of mortality by day 1460 conditional on survival to day 354 is 1.2389 (.2230). 32These differences in marginal costs (and response times) could also be used to estimate the value placed on life in different communities (as in Felder and Brinkmann, 2002). That is not the intent of this paper, however. 26 including crew. In the U.S., Pons estimates the cost of 24-hour staffing for an additional ambulance at $400,000 to $500,000 per year (Pons and Markovchick, 2002, Pons at al. 2005).33 I am interested in approximating the basic cost of adding additional ambulances that would be used to reduce the use of mutual aid by agencies. Mutual aid calls are common in Utah. The mutual aid system works as follows: when a provider runs out of ambulance units, that provider contacts a neighbor to answer the call, according to a previously-defined agreement. In 2001, the year for which I have data,I identified 10,887 mutual aid calls out of a total of 109,789 geocoded calls. Most mutual aid calls occurred in more densely populated parts of Utah around Salt Lake City and Washington County. Agencies with more ambulances were less likely to use mutual aid (Figures 2 and 3), and the proportion and number of mutual aid calls decrease in tandem with the number of ambulances. The response-time penalty for mutual aid calls is substantial. Mutual aid providers are much farther away from incidents. In Table 9, I provide summary statistics for the distribution of response times and distance for mutual aid and non-mutual aid calls. The average response time for mutual aid calls is 10.5 minutes, but it is only 8.9 minutes for non-mutual aid calls. The distance between the provider and the incident for mutual aid calls is also much greater than for non-mutual aid calls. In Figure 4, I show the distribution of response times for mutual aid calls and for non-mutual aid calls; the distribution of response times for mutual aid calls is clearly shifted to the right. Figure 5 also shows the distribution of distance between each incident and the provider answering the call, for both mutual aid calls and non-mutual aid calls. Again, 33 Fischer estimates the cost of an additional ambulance in Surrey to be £250,000 at 1999 levels, which in 2007 dollars is approximately $635,000 assuming a 2.061-dollars-per-pound exchange rate and a Consumer Price Index of 202.4 in 2007 and 164.3 in 1999. In an interesting cost-benefit analysis using data from Ontario, Canada,Nichol et al, used an alternate approach, estimating the impact of increasing unit hours, rather than the addition of an ambulance. Those results, unfortunately, were specific to either a one-tier or two-tier system and so are not relevant to my analysis (Nichol et al 1996b). 27 the distribution of distances is shifted substantially to the right for mutual aid calls. This is consistent with longer response times. I assumed that by increasing the total number of ambulances in Utah by approxi- mately 10% (because mutual aid calls constitute 10% of all calls) or 34 ambulances, I eliminated all mutual aid calls. Average response times can be expected to decrease by 9.5 seconds (10% of the difference in average response times between mutual aid and non mutual aid calls), at a total cost of$15,300,000 (34 * $450,000). Now, I directly estimate the survival benefit in years of a minute decrease in response times.34 I assume that there are no benefits to survival beyond four years after the initial incident and I decompose the impact of response time on survival into four different components. That is, E(S) = E(SIS < 4)P(S < 4) +E(SIS > 4)P(S > 4) which suggests that 8E(S) _ aE(SIS < 4)P(S < 4) +E(SIS < 4)aP(S < 4) aRT aRT aRT 8E(SIS > 4) aP(S > 4) + 49RT P(S > 4) + E(SIS > 4) 49RT I estimate aE(49RT 4) by regressing survival on response time instrumented with distance 34 Ideally,I would measure the benefit of reduced response times by gauging their impact on mortality, emergency department utilization, and morbidity. In particular, I would track the resulting reductions in later hospitalizations;days of restricted activity;lost days of productive work or productive life years; and overall patient and customer satisfaction (Pons and Markovchick 2002, Mann, Mullins, MacKenzie, Jurkovich, and Mock 1999, Bailey and Sweeney 2003). It is possible that reducing response time, and the total time before patients receive definitive care, might have additional effects which I have not captured here,such as reductions in the within-hospital death rate,rather than simply the overall death rate. Also, by preventing the "deterioration of condition of the patient," the reduced time-to-treatment may limit later complications, reduce temporary disability, prevent permanent disability, cut down on psychological trauma at the scene, and improve the chances of a full recovery. Unfortunately, these measures are not currently available. (Riediger and Fleischmann-Sperber 1990). In later analyses, I will incorporate inpatient hospital visits, ambulatory surgery and hospital discharge records. Following Cutler, Landrum, and Steward (2006), I will use medical utilization after an initial incident as an indicator for later disability. Unfortunately, I do not have access to subjective patient measures of pain and suffering, life satisfaction,or disability. 28 where survival is measured in years from the initial incident and the sample is restricted to those who survive less than four years after the initial incident.35 I estimate a(S<4 and aP by regressing an indicator for mortality at 4 years on response time in- strumented with distance. I observe P(S < 4),E(SIS < 4) and P(S > 4) directly in the data. I assume that a change in response time does not affect the length of sur- vival conditional on surviving to four years. Finally, because I cannot directly estimate E(SIS > 4) for my sample, I use life tables produced by the Utah Governor's Office of Planning and Budget to estimate future life expectancies for those patients who sur- vive more than four years from the initial incident (for whom I have gender and age information) (State of Utah 2005). Table 10 presents my results. I find that if I assume conservatively that those who survive "beyond" four years live for exactly 4 years (the minimum possible), an increase in response time of one minute reduces survival by 23.7 days (.065 years), and an increase in response times of 9.5 seconds reduces total survival by 3.8 days. This corresponds to a change of 758.8 life years, given a sample of over 70,000 patients. This suggests that the per life year cost of a 9.5 second reduction in response time is ($15,300,000/758.8) $20,169, which is far less than even the most conservative estimates of the value of a year of life.36 A less conservative estimate, that is one that assumes the average length of survival for those who live beyond four years is 43.7 years (based on Utah life tables), suggests a per life year cost of a 9.5 second reduction in response time of less than $1,390 (almost $20,000 less than the previous estimate). Either estimate of the benefit of reducing response times seem to suggest that ambulances are significantly underprovided within Utah. EMS agencies in Utah may underprovide ambulances for many reasons. I focus on 35The reliability of this estimate depends on the assumption that the error terms from this regression are nicely behaved. I estimate this regression using three different approaches (a regular instrumental variables regression which assumes normally distributed standard errors), an instrumented censored regression,and an instrumented tobit regression. For ease of presentation,I only present the first results here. However, there were no significant differences between the results for the three methods. 36Even assigning different values for a year of life for those above 65 and below 25, (approximately 52% of the sample), does not fundamentally affect this conclusion. 29 one potential explanation here. In Utah, as in many other states, EMS providers are required to provide mutual aid to other agencies (personal conversations with agency directors and Utah Bureau of EMS, 2006). Communities with available resources must answer mutual aid calls, regardless of the number and extent of these calls. This may lead to a free-rider problem. If the costs of using mutual aid (higher response times) are less than the benefits (lower costs), then providers will systematically underprovide ambulances. In a work in progress, I model the decision of communities to purchase ambulances. In that paper, I show that providers that behave strategically will choose to buy fewer ambulances than if mutual aid were not available. They will also choose to buy fewer ambulances than the socially efficient number of ambulances. Empirically, I cannot reject the hypotheses that communities behave strategically , and therefore underprovide ambulances. This finding has significant policy implications. It suggests that central planning of ambulance purchasing may produce welfare improvements, that state governments may want to subsidize the cost of ambulances, and also that Utah and other states may want to discourage mutual aid. The assumed value of mutual aid agreements, which are common in other local public-good contexts such as police and fire services, should be carefully reconsidered. Given the size of state and local expenditures on police, fire and Emergency Medical Services (over $105 billion in 2004-5), the financial significance of these mutual aid resource flows between communities is clearly sizable. The potential for underprovision is significant (Annual Survey of Government Finances, 2004-5). This issue warrants additional study. 9 CONCLUSION In this paper I have resolved an empirical puzzle within the previous literature, which found only mixed and limited evidence that shorter response times improve outcomes, 30 despite policy-makers' long-held assumption that this was true. This is the first paper to clearly demonstrate the importance of response times for patients suffering from non-cardiac conditions, as well as for any demographic subgroups. I propose several mechanisms through which response times may affect outcomes. I find that a mechanism in which response times determine the extent of damage to the internal organs, increasing the hazard of death, best explains the data. I provide a cost-benefit analysis for an estimated 9.5-second decrease in response times—and I find that the anticipated benefits far exceed the costs. Finally, I suggest one potential explanation for this underprovision— strategic behavior by communities in the presence of mandatory mutual aid agreements. 10 APPENDIX 10.1 APPENDIX A: CONSTRUCTION OF THE DATA Figure 3A summarizes the relevant data connections. I standardized prehospital incident address, city, and name records according to U.S. census conventions (Utah Prehospital Incident Data, 1999-2005). I used ArcMap 9.1 with the StreetMap USA (SDC) address locator, GCS North American 1983 Coordinate System, and default matching options to identify the latitude and longitude,census block group, tract, and census place for each incident, EMS agency, and hospital. To match prehospital incident reports to emergency department reports using proba- bilistic matching methods (Link Plus), I used these variables: sex, first name, last name, complete name, incident date, hospital number, race, sex, and birth date. I used the following elements to match prehospital incident reports to mortality records: sex, birth date, complete name, first name, last name, race, sex, injury county, and hospital. In a few cases, I filled in data which was missing from a prehospital report with emergency department or mortality data. The mortality data includes all deaths in the state of Utah between 1999 and 2005 by 31 I residents of Utah. Because of agreements with other states, deaths by non Utah residents within the state of Utah, and deaths by Utah residents outside the state of Utah cannot be disclosed to outside researchers (Utah Death data, 1999-2005). In appendix C, I explore the impact of this potential underreporting of deaths on my results. For the small proportion of prehospital incident reports for which patient zip code is included, I identify out-of-state residents. I also used the emergency room data which includes patient zip code to identify patients from outside of Utah (Utah Emergency Department Encounter Data, 1999-2005). The emergency room data includes a small number of patients who were subsequently admitted to the hospital as inpatients (15% of all emergency department admissions). My traffic data includes hourly vehicle counts from 97 automatic traffic counters located throughout Utah (Utah Automatic Traffic Counter Data, 1990-2005). Each traffic counter identifies the total vehicle flow every hour in two directions. To get an average measure of congestion, I combined traffic counts from both directions and calculated and means by counter-day-hour unit. A more precise measure of traffic would have identified the actual route of each ambulance, and the traffic counters which were along this route in the appropriate direction; however, without knowing the starting location of each ambulance, this would be impossible to do precisely. Such an analysis would also take me away from the central purpose of this paper. I matched each incident to the traffic counter which was closest in distance, during the hour which corresponded to the time when the call was dispatched. I did not fill in data when no traffic data was available. I gathered weather data from hourly data collected from 20 weather stations through- out the state of Utah (Integrated Surface Hourly Database, 2001). 1 collapsed over 100 descriptions of current weather into eight basic categories: rain, fog, snow, ice or hail, mist/haze, drizzle, thunderstorm, or other. I matched each incident to the weather reading which was geographically closest and which was closest in time after the instant 32 of dispatch. For each of the 29 counties in Utah, I used latitude and longitude coordinates to identify daily sunset and sunrise times in 2001 (Sunrise/Sunset/Sun Angle Calculator, 2007), which I subsequently merged by incident, county and date with the incident data. Because actual ambulance location prior to dispatch was unavailable, I used the agency address provided by the Bureau of EMS. In cases where the agency address was a post-office box, I used the latitude and longitude of the agency zip code as the agency location. I calculated distance using the spherical law of cosines: d = acos(sin(latl).sin(lat2)+cos(latl).cos(lat2).cos(long2-longl)).R. I identified tourist locations or Olympic locations using Utah Department of Tourism attendance rankings and Olympic information provided by the Utah Tourism Industry (Top 25 Tourist Attractions by Volume 2000, 2002 Winter Olympics 2007). I geocoded verbal descriptions of the jurisdiction of each valid EMS license as of fall 2006 which were given to me by the Utah Bureau of EMS.An example follows: Beginning at the Carbon/Utah/San Pete County line, south along the Carbon/San Pete County line to the Carbon/San Pete/Emery County line; south along the Carbon/Emery County line, then east along the Carbon/Emery County line to one mile west of Highway 6, then southeast to Woodside Highway 6 at mile marker 279, then northeast two miles; then northwest to one mile east of Highway 6 at the Carbon/Emery County line, then east along the Carbon/Emery County line to the Carbon/Uintah County line, then north two miles to the Carbon/Sunnyside license line,then west to one mile east of Highway 6, then northwest to one mile north of Junction SR 123 and Highway 6, then east to one mile west of East Carbon City limits, then north two miles to one mile northwest of Sunnyside City limits, then east to the Carbon/Uintah County line, then north along the Green River to the northeast corner of Carbon County, then west along the Carbon/Uintah County line and continuing west along the Carbon/Duchesne County line to one mile East of SR 191; then northeast to one mile east of the summit of Indian Canyon SR 191 33 i at mile marker 173; then west 2 miles to one mile west of SR 191, then southwest to Reservation Ridge road, then west along Reservation Ridge Road and White river road to Soldier Summit, then south from Soldier Summit to the Carbon/Utah County line; then west on the Carbon/Utah County line to point of beginning. According to the Utah Bureau of EMS, no areas should have more than one provider of a given level. Although there were likely to be some changes in agency boundaries between 1999 and 2006, conversations with a random sub-sample of agency directors suggested that agency boundaries were stable. I excluded prehospital reports from the primary analysis if they lacked patient names, dispatch codes, or addresses, or if they contained variations of"CANCELLED" in the incident addresses, names, or dispatch codes. I also excluded duplicated prehospital reports. Table 9A shows how many observations from the original sample were excluded from the main regression sample and why. 10.2 APPENDIX B: PROBABILISTIC MATCHING I used the program Link Plus, created by the National Program of Cancer Registries within the Centers for Disease Control and Prevention, to probabilistically match in- cident reports with mortality and emergency department reports using formal mathe- matical models based upon the framework of Fellegi and Sunter (Link Plus 2005, Fellegi 1969). Similar software is commonly used within epidemiology and has previously been used in economics to link administrative records (Hellerstein, Neumark, and McInerney 2007, Abowd and Vilhuber 2005). After I cleaned and standardized the elements in both data sets (first, for prehospital and mortality, and second, for prehospital and emergency department) so that the values of the variables were equivalent, I used the software to match on selected elements. For the match between the mortality and prehospital data set, these elements were: sex, birth date, complete name, first name, last name, race, sex, injury county, and 34 hospital. For the match between the emergency department and prehospital data sets, these elements were: sex, first name, last name, complete name, incident date, hospital number, race, sex, and birth date. I matched the mortality records to the EMS records and the emergency department (ED) records to the EMS records. Appendix Figures lA and 2A show the distribution of matching scores for the ED and mortality matches; in neither case is there an obvious cut-off point. Therefore, I follow the guidelines recommended by the CDC and choose a minimum match score between 10 and 15. 1 matched 13,103 of 64, 442 mortality records to EMS records (20%) and 66,556 of 668,888 ED records to EMS records (10%). The software can account for minor mistypings, misspellings, and even missing names (in the case of maiden versus married names, for example), missing or slightly inaccurate day or month values for dates. It can assign higher weights to matches of rare values and can also match on exact terms, equivalent to deterministic methods. Note that if a patient appeared more than once in the prehospital data, and he or she died, the mortality record would be matched multiple times. The emergency department record that is most relevant to each prehospital incident, according to the matching software, is the one that will be matched. This might mean that a particular emergency department record is matched to more than one prehospital incident, if the prehospital incidents were close enough in time and only one emergency department visit resulted from multiple prehospital incidents. Link Plus allowed me to customize the matching weight on each variable; to choose the number and type of variables for matching; and to set the score above which observational matches would be accepted, based on the strength of all of the variable matches. For a useful introduction and background on probabilistic matching methods, see Winkler 1995 or Winkler 1999. The m and u parameters and the direct link number used in these probabilistic matching procedures are available from the author. However, there may still be mismatches. Deterministic matching methods reduce the number of Type 1 Errors, or false positives, but these methods increase the number 35 �I of type 2 errors, or missed matches. Probabilistic matches reverse that pattern: they reduce the number of type 2 errors but increase the number of type 1 errors. I tried to minimize the number of false positives by standardizing the elements to be merged in each dataset. To check the quality of the matching algorithm, I visually inspected a random sample of matches. I refined the algorithm until the matches in this random subsample were satisfactory. I dropped all matched ED reports that bore an admission date more than one day prior to the incident date and also the small number of matched death reports that reported a death date more than one day prior to the incident date; approximately 11 percent of mortality and ED matches. Originally, I checked the num- ber of matched mortality records against the outcomes in the prehospital records that listed them as "dead on arrival." But I later found that prehospital "dead on arrival" re- ports (which represent less than 1 percent of the sample) were highly inaccurate. In fact, a large proportion of these patients were later found alive in the Emergency Department and also had recorded positive vital signs, both findings highly unlikely in people who were dead before they were brought to the hospital. I also interacted the score which LinkPlus assigned to each match, indicating its strength and reliability, with the mor- tality indicator variable (Table 7A). In no cases were the results sensitive to the quality of the match. For the sample of patients who were admitted to the hospital, I used the emergency department data match score as a weighting variable. Again, these results were similar to my original specification. Table 8A shows the impact of changing the minimum match score for the mortality records from 15 to 20, which did not affect the results substantially. Finally, I also compared the proportion of prehospital calls which listed a hospital admit as the call outcome and the proportion of calls that I successfully matched to ED records. There are many legitimate reasons why these would differ (for example, if a patient arrived at the hospital and was not admitted to the emergency room, or if a patient decided to go to the emergency room through other means later in 36 the day or the next day). However, these proportions are consistent.37 10.3 APPENDIX C: MEASUREMENT ERROR In this section, I discuss several potential sources of measurement error: mismatches from the probabilistic matching, missing mortality data, censored ED data, missing prehospital reports, missing variables within the prehospital reports, and misreporting. Utah non-residents who died in Utah were not included in the mortality data. Utah residents who died outside Utah were also excluded. To evaluate the size of the bias this introduced into the mortality outcomes, I estimated the hospital outcomes regressions excluding all patients identified as either being involved in incidents outside of Utah, or whose zip codes came from outside of Utah (less than 3 percent of the sample). The results did not change. Mortality regressions which excluded these same patients (a very small proportion of the total sample) did not differ from the base results, either, indicating that this is not a severe problem. Finally, the CDC reports the total number of deaths by residents of Utah by year; less than 2 percent of deaths by Utah residents in 2004, for example, (approximately 200 deaths) occurred outside the state of Utah (LCWK9 2004, Utah Death Data 2004). Therefore, given that only 20 percent of deaths in Utah are preceded by an EMS call, these missing deaths are unlikely to significantly affect my results. Current merged ED records only identify the first ED incident associated with each prehospital record (if there is one). I matched only emergency department visits from 2001 to prehospital incidents in 2001. If an incident occurred on December 31st, and the ED visit occurred on January 1st, I will not have records for it within this data set. But the average difference in days between ED admission and incident is less than one, 37 Note also that John Doe does not appear in mortality records (which only contain actual names) but does appear in ED and prehospital records. When I excluded patients identified as John Doe (and various equivalent anonymized names) from the mortality regressions, however, the main results are unaffected. 37 and less than 1% of prehospital incidents occurred on December 31st, so I am unlikely to miss many ED reports. The Utah Department of Health is currently constructing linked ED, Ambulatory Surgery, and Hospital Discharge records, which will allow me to identify all ED, AS and HD trips within two years for each prehospital incident. I will use these linked reports to estimate the total charges for all hospital medical care following each prehospital incident. Although Utah state law requires that all providers submit reports for each call, there is no system which audits agencies; there may be many missing prehospital re- ports. According to the Bureau of EMS, 2001 was a good reporting year. There is no reason to believe that misreporting or attrition is systematically correlated with incident characteristics, the agency says. There are also missing variables. In cases where there were multiple reports of the same individual at the same incident, I filled in details that were missing from other reports. In practice, these filled-in variables did not affect the results in any way. Response time may be measured with error: in some cases, responders will record a 10:57 response time as 10 minutes, and in other cases, 11 minutes. This is likely to be classical measurement error, and will bias the coefficients towards zero; the instrument should correct for this. The potential for incorrectly-measured influential observations is a possible concern; results from regressions which excluded response time outliers more than one standard deviation (or two or three) above the mean had effects stronger and in the same direction as the original specification. I excluded any reports which are missing values from the regression analysis. Partic- ularly in the case of outcomes measured at the scene, intermediate health status could possibly be missing because patients had already died; however, very few patients were actually dead on arrival. Also, intermediate health indices are available for 83 percent of patients coded as dead on arrival. This proportion is only slightly lower than that for the rest of the sample (92%). Around 15,000 addresses could not be geocoded due 38 to the limited information available in the administrative data. Only a small share of observations were missing weather or traffic station data due to equipment problems. Dispatch code, or the code given by the dispatcher to the paramedic when the call is dispatched, is only available for 50% of the sample. Injury/illness code is available for a much higher proportion of the sample, however. Response time is unavailable for a reasonably high proportion of the sample: Appendix Table 9A shows the impact of these missing values on the construction of the final regression sample. In addition to matching individual patient-level records, I matched particular inci- dent reports to hourly weather and traffic data, and sunset and sunrise times. It might have been possible to simulate weather and traffic at locations between traffic counters, or to identify the sunset and sunrise time for each day for each precise incident loca- tion, rather than for each county. These gains in precision, however, seem marginal and unlikely to affect my results. In addition, there is no doubt that some of the Utah Bureau of EMS agency bound- aries overstate or understate the true territory. But the measurement error in these descriptions is concentrated in the rural parts of Utah, where there are very few resi- dents and few calls, and so the likely impact of this error is minimal for my analysis. Most mutual aid calls are not close to the territory borders, so these slight variances are unlikely to bias my mutual aid estimates significantly. In the measurement of distance, the assumption of a spherical earth seems to be a reasonable one. Conveniently, Utah is not located at an extreme of the earth, where this approximation is likely to be most inaccurate. As a check on the quality of the distance measures, a small proportion of agencies reported distance from ambulance to incident and incident to hospital. Where the hospital was identified, the distance from incident to hospital measured using CIS technology could be directly compared to the distance measured using the ambulance odometer. This was reasonably accurate. The measure of the distance from the agency to the scene was positively correlated with the change 39 in the odometer of the ambulance that made the trip. Lastly, in addition to missing dispatch codes, there are a number of dispatch codes which differ from the injury or illness code identified at the scene. While this may be a sign that dispatch codes were improperly assigned, it may also indicate updating by the paramedics or EMTs. 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Accessed 6/9/2007. http://www.census.gov/srd/www/abstract/rr99-04.html. 52 Table 1: Utah Prehospital Sample Demographic Characteristics Utah 2001 US Census Prehospital Sample* Utah Census 2000 2000 (mean) (mean) (mean) Age Less than 15 0.085 0.266 0.214 15 to 24 0.169 0.198 0.139 25 to 64 0.473 0.451 0.523 65&over 0.273 0.085 0.124 N=62,982 Gender Female 0.515 0.499 0.509 N=73,556 Race White 0.913 0.892 0.751 Black 0.019 0.008 0.123 Native Am /Alaskan Native 0.009 0.013 0.009 Asian/ Pacific Islander 0.023 0.024 0.037 Other 0.056 0.063 0.079 N=45,164 *Regression sample as defined in Appendix Table 9A. Sample sizes very because of missing covariates. 53 Table 2:Distribution of Patient Complaints for 2001 Utah Prehospital Sample Complaint Category Proportion of Calls 1 Year Mortality Rate` Heart,Breathing Problems,Cardiac Arrest 0.159 16.558 Breathing problems 0.079 16.630 Cardiac,respiratory arrest 0.015 55.121 Chest pain 0.058 7.603 Heart problems 0.007 7.313 Stroke,Falls,Fainting 0.178 10.867 Convulsions,seizures 0.044 4.571 Falls 0.077 11.647 Stroke 0.014 23.235 Unconsciousness,fainting 0.043 11.887 Traffic Accident 0.160 1.453 Traffic injury accident 0.160 1.453 Transfer 0.093 15.786 Transfer 0.093 15.786 Trauma 0.133 4.095 Animal bites 0.004 7.395 Assault,rape 0.028 1.737 Burns 0.002 4.706 Carbon monoxide poisoning,inhalation 0.002 3.614 Drowning,diving accident 0.001 11.765 Electrocution 0.000 7.692 Hemorrhage 0.021 9.627 Industrial,machinery accidents 0.001 1.149 Overdose,poisoning,ingestion 0.039 2.512 Stab,gun shot wound 0.005 11.976 Traumatic injuries,specific 0.030 2.561 Other Issues 0.277 10.731 Abdominal pain or problems 0.037 8.960 Allergic reactions,hives,stings 0.006 3.081 Back pain 0.014 7.365 Choking 0.004 5.882 Diabetic problems 0.022 12.024 Eye problems 0.001 4.124 Headache 0.006 2.643 Heat,cold problems 0.001 5.236 Pregnancy,childbirth,miscarriage 0.008 1.040 Psychiatric,behavioral problems 0.038 3.397 Specific diagnosis,chief complaint 0.050 15.194 Unknown problem 0.035 7.668 Diarrhea 0.054 18.843 Ear Problems 0.000 12.500 Fever 0.001 23.077 N=73.706 'Mortality outcomes multiplied by 100. 54 Table 3: Incident Characteristics Standard Variable Mean Median Deviation N Time from Dispatch to Arrival at Scene(minutes) 8.46 7.00 6.64 73,706 Time from Contact at Scene to Departure from Scene(minutes) 18.27 16.00 11.14 66,813 Time from Departure from Scene to Arrival at Hospital, Home (minutes) 12.86 10.00 11.32 65,231 Time from Call to Dispatch Notified(minutes) 0.00 0.00 0.03 1,174 Time from Dispatch Notified to Ambulance Dispatched(minutes) 26.14 3.00 45.03 259 Time from Arrival at Scene to Arrival at Patient(minutes) 13.85 0.00 38.44 845 Distance to Closest Non Mutual Aid Agency(miles) 3.25 1.78 5.74 73,706 Distance to Closest Hospital with ED(miles) 2.01 1.49 2.40 73,706 Distance from Incident Location to Actual Hospital ED if Admitted (miles) 7.70 3.03 24.77 51,579 Note that the Closest Non Mutual Aid Agency is the closest agency which has territory including the incident. 55 Table 4: Outcome Summary Statistics Standard Outcome Mean Deviation N Mortality Death within One Day of Incident* 1.69 12.90 73,706 Death within Two Days of Incident* 1.97 13.91 73,706 Death within 30 Days of Incident* 4.28 20.25 73,706 Death within 90 Days of Incident* 5.95 23.66 73,706 Death within 1 Calendar Year of Incident* 9.77 29.69 73,706 Death within 4 Calendar Years of Incident* 19.01 39.24 73,706 Intermediate Health and Expenditure Measures Health Index 1* 98.30 6.44 67,510 Health Index 2* 98.33 6.83 67,510 Number of ED Procedures(For ED Patients)* 33.12 85.90 51,607 Total Hospital Expenses(For ED Patients) 2934.34 9841.07 51,607 Ln (Total Hospital Expenses) 6.83 1.43 51,607 Patient at High Mortality Risk(ED personnel)* 5.97 23.69 50,519 Patient Has Severe Injury or Illness (ED personnel)* 7.13 25.74 50,519 * Scaled by 100 for ease of interpretation. Sample size varies because not all patients are admitted to the hospital or have recorded vital signs. 56 Table 5: Main Regression Results Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0150 0.0342 0.0780 0.1112 0.1392 0.2443 (0.0083) (0.0123)* (0.0177)* (0.0200)* (0.0232)* (0.0283)* OLS(Coefficient on RT) -0.0077 -0.0058 0.0205 0.0276 0.0157 0.0030 (0.0063) (0.0069) (0.0124) (0.0149) (0.0176) (0.0221) IV(Coefficient on RT) 0.1363 0.3099 0.7080 1.0084 1.2617 2.2151 (0.0754) (0.1139)* (0.1648)* (0.1854)* (0.0209)* (0.2704)* Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1st Stage(Coefficient on Distance) 0.1103 0.1103 0.1103 0.1103 0.1103 0.1103 (0.0084)* (0.0084)* (0.0084)* (0.0084)* (0.0084)* (0.0084)* N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation.Robust standard errors in parentheses. See Appendix A for a discussion of the sample.*Indicates significant at 5%level. 57 Table 6: Heterogenous Treatment Effects (Varying by Condition) Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Coefficient on Interaction of Transfer and Response Times(IV)(N=6,848) 0.7674 0.3630 1.1501 3.0258 3.0368 6.4979 (0.5192) (0.4937) (0.9575) (1.4686)' (1.5861) (2.7461)' Coefficient on Interaction of Traffic Accident and Response Times(IV)(N=11,768) 0.1655 0.2075 0.3778 0.5820 0.7231 0.8476 (0.1386) (0.1405) (0.1762)' (0.2068)' (0.2262)' (0.2650)' Coefficient on Interaction of Stroke,Falls, Fainting and Response Times(IV)(N=13,161) 0.0597 0.2313 0.5723 0.8437 0.9205 1.8545 (0.1028) (0.1492) (0.2226)' (0.2752)' (0.3091)' (0.3963)' Coefficient on Interaction of Heart Problems, Breathing Problems,Cardiac Arrest,and Response Times(IV)(N=11,779) 0.2238 0.3954 0.8623 1.1369 1.8522 2.1875 (0.3162) (0.3198) (0.3895)' (0.4077)' (0.4792)' (0.5562)' Coefficient on Interaction of Other Issues and Response Times(IV)(N=20,352) 0.1156 0.5931 1.2905 1.4057 1.7610 3.5234 (0.1164) (0.3228) (0..4600)' (0.4903)' (0.5446)' (0.7089)' Coefficient on Interaction of Trauma and Response Times(IV)(N=9,798) -0.1095 -0.0247 -0.0144 0.0648 0.2305 0.2451 (0.0549) (0.0981) (0.1140) (0.1490) (0.1987) (0.2477) IV(Coefficient on RT for Base Regression (Table 5)) 0.1363 0.3099 0.7080 1.0084 1.2617 2.2151 (0.0754) (0.1139)' (0.1648)' (0.1854)' (0.0209)' (0.2704)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. See Appendix A for a discussion of the sample.'Indicates Significant at 5%level. First stage Cragg Donald F value equals 15.46. 58 Table 7: Heterogenous Treatment Effects(Varying by Gender,Age; Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality IV(Coefficient on RT)(Men Only) 0.0773 0.3208 0.5080 0.8478 1.0286 1.6626 (N=35,645) (0.1087) (0.1893) (0.2221)' (0.2499)' (0.2808)' (0.3338)' IV(Coefficient on RT)(Women Only) 0.1797 0.2829 0.8949 1.1610 1.5070 2.8183 (N=37,911) (0.0993) (0.1187)' (0.2416)' (0.2724)' (0.3098)' (0.4318)' IV(Coefficient on RT)(Age Less Than 15 Only) (N=5,328) 0.0831 0.0566 0.0201 0.1759 0.1528 0.1924 (0.1015) (0.1036) (0.1136) (0.1769) (0.1857) (0.2520) IV(Coefficient on RT)(Age 15-24 Only) (N=10,670) 0.0167 0.0261 0.1679 0.5778 0.5881 0.8041 (0.0774) (0.0759) (0.1459) (0.2345)' (0.2519)' (0.3112)' IV(Coefficient on RT)(Age 25-64 Only) (N=29,792) 0.0321 0.2895 0.3657 0.3687 0.4246 0.5579 (0.1247) (0.2397) (0.2648) (0.2730) (0.2990) (0.3356) IV(Coefficient on RT)(Age Over 65 Only)(N= 17,192) 0.2232 0.4848 1.0470 1.3183 1.2972 2.5113 (0.2332) (0.2869) (0.5421) (0.6068)' (0.6666)' (0.7035)' IV(Coefficient on RT for Base Regression (Table 5)) 0.1363 0.3099 0.7080 1.0084 1.2617 2.2151 (0.0754) (0.1139)' (0.1648)' (0.1854)' (0.0209)' (0.2704)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. See Appendix A for a discussion of the sample.'Indicates Significant at 5%level. First stage Cragg Donald F value equals 15.46. 59 Table 8:Intermediate Outcomes Dependent Variable Severe Distance from Indicator for Natural Log of Total Number High Injury or Incident to Admitted to Total Hospital of Mortality Illness Hospital Health Health Time At ED'* Expenditures Procedures" Risk(ED)** (ED)** (miles) Index 1** Index 2** Scene Reduced Form Regression of Dependent Variable on Distance(Coefficient on Distance) 0.1622 0.0008 0.0217 0.0627 0.0528 -0.1111 0.6973 0.3796 -0.0077 (0.0358)' (0.0011) (0.0672) (0.0226)' (0.0239)' (0.0273)* (0.4663) (0.6397) (0.0102) OLS(Coefficient on RT) -0.1568 -0.0027 -0.2332 0.0041 -0.0043 0.0252 0.4957 0.3040 -0.2403 (0.0274)' (0.0010)' (0.0571)' (0.0166) (0.0174) (0.0197) (0.3027) (0.3362) (0.0118)* IV(Coefficient on RT) 1.4709 0.0067 0.1722 0.4966 0.4182 -0.8843 5.9665 3.2486 -0.0677 (0.3038)* (0.0091) (0.5334) (0.1816)* (0.1904)' (0.2165)* (3.9095) (5.4281) (0.0889) Dependent Variable Response Response Response Response Response Response Response Response Response Time Time Time Time Time Time Time Time Time 1st Stage(Coefficient on Distance) 0.1103 0.1258 0.1258 0.1263 0.1263 0.1256 0.1169 0.1169 0.1140 (0.0083)' (0.0108)* (0.0108)* (0.0110)' (0.0110)' (0.0108)' (0.0094)* (0.0094)* (0.0088)* N 73,706 51,607 51,607 50,519 51,607 51,579 67,519 67,519 66,813 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects."indicates dependent variables are multipled by 100 for ease of coefficient interpretation.Robust standard errors in parentheses. See Appendix A for a discussion of the sample.*Indicates Significant at 5%level. 60 Table 9: Response Time Statistics Standard Variable Mean Median Deviation p10 p90 Average Response Time to Non Mutual Aid Calls 8.9 7.0 8.3 3.0 16.0 Average Response Time to Mutual Aid Calls 10.5 7.0 11.9 3.0 19.0 Average Distance from Incident to Answering Agency for Non Mutual Aid Calls 6.7 2.5 22.8 0.5 8.8 Average Distance from Incident to Answering Agency for Mutual Aid Calls 10.1 4.9 24.0 1.0 14.5 Providers with only 1 Ambulance(N=84). Providers with more than 1 Ambulance(N=53). Note: All Calculations are made from Utah Prehospital Data (2001)(sample including calls outside of Salt Lake City).Note: There are 10,887 mutual aid calls identified and 98,902 non mutual aid calls out of the 109,789 geocoded calls. 61 Table 10: Cost Benefit Analysis dE(SIS<4)/dR PR(S<4) E(SIS<4) dPR(S<4)/dR dE(SIS>4)/dR PR(S>4) E(SIS>4) dPR(S>4)/dR dE(S)/dR -0.025 0.190 1.304 0.022 0.00 0.810 4.0 -0.022 -0.065 -0.025 0.190 1.304 0.022 0.00 0.810 10.0 -0.022 -0.197 -0.025 0.190 1.304 0.022 0.00 0.810 15.0 -0.022 -0.308 -0.025 0.190 1.304 0.022 0.00 0.810 20.0 -0.022 -0.419 -0.025 0.190 1.304 0.022 0.00 0.810 25.0 -0.022 -0.530 -0.025 0.190 1.304 0.022 0.00 0.810 30.0 -0.022 -0.640 -0.025 0.190 1.304 0.022 0.00 0.810 43.7 -0.022 -0.943 Notes:Recall that E(S)=E(SjS<4)(PR(S<4))+E(SjS>4)PR(S>4).This implies that dE(S)/dR=dE(SjS<4)/dR(PR(S<4)+E(SIS<4)'dPR(S<4)/dR+dE(SjS>4)/dR(PR(S>4)+E(SIS>4)'dPR(S>4)/dR I assume that dE(SIS>4)/dR=O.Given that I don't directly observe E(SIS>4),I show the results for several potential values ranging from 4(all patients who survive 4 years die at exactly 4.01 years)to the expected life expectancy for the sample of patients who survive 4 years after the initial incident calculated from Utah model life tables(43.66). 62 Figure 1 : Selected EMS License Boundaries and Call Locations , h •j� ` r 5 -;1 S• 1 t t I t` r 15� r — Sc `�� � � .� r't, �,:_ ��k• .v y `"� lam♦ 1� 1 ..r . r a F • r t ^`—mss III •'-- S L � ...J- �- �• %� �.k W+ S 0 1.5 3 6 Miles 63 Figure 2: Probability of Being Stocked Out By Number of Ambulances 8 N • 0 1 2 3 4 In of amb Figure 3: Total Mutual Aid Calls By Number of Ambulances I I 0 1 2 3 4 In of amb I I 64 Figure 4: Distribution of RT For Mutual Aid Calls and Non Mutual Aid Calls N O � O 0 5 10 15 20 25 Mnutes: Dispatch to Arrival at Scene Non Mutual Aid ----Mutual Aid, 65 r ■ Figure 5: Distance from Incident to Provider for Mutual Aid Calls and Non Mutual Aid Calls N O \ \ --------————— 0 5 10 15 20 25 Distance from Incident to Answering Agency (miles) Non Mutual Aid ---Mutual Aid 66 Appendix Table 1A:Variable Definitions for Standard Regression Specification Variable Definition Data Source Outcome Variable 1 day mortality Equals 100 if death date-incident date is less than or equal to 1 Death Data 2 day mortality Equals 100 if death date-incident date is less than or equal to 2 Death Data 30 day mortality Equals 100 if death date-incident date is less than or equal to 30 Death Data 90 day mortality Equals 100 if death date-incident date is less than or equal to 90 Death Data 1 year mortality Equals 100 if death date-incident date is less than or equal to 1 year Death Data 4 year mortality Equals 100 if death date-incident date is less than or equal to 4 years Death Data Health Index 1' Intermediate Health Index From Scene:100=Good Health Prehospital Report Health Index 2' Intermediate Health Index From Scene:100=Good Health Prehospital Report Hospital number of procedures' Total number of procedures multiplied by 100 (from ED) ED Report Ln(Total Hospital Expenses) Natural Log of total Hospital Expenditures(from ED) ED Report High Mortality Risk(ED) Equals 100 if mortality risk by ED assessed at 3 or 4 where 4 is maximum. ED Report Equals 100 if ED personnel asssess condition severity as 3 or 4 where 4 is Severe Injury or Illness(ED) maximum. ED Report Weather characteristics Indicator for Rain during hour of incident at Weather Station which is closest to rain incident location Integrated Surface Hourly Database Indicator for Fog during hour of incident at Weather Station which is closest to fog incident location Integrated Surface Hourly Database Indicator for Snow during hour of incident at Weather Station which is closest to snow incident location Integrated Surface Hourly Database Indicator for Ice or Hail during hour of incident at Weather Station which is icehail closest to incident location Integrated Surface Hourly Database Indicator for Mist or Haze during hour of incident at Weather Station which is misthaze closest to incident location Integrated Surface Hourly Database Indicator for Drizzle during hour of incident at Weather Station which is closest drizzle to incident location Integrated Surface Hourly Database Indicator for Thunderstorm during hour of incident at Weather Station which is thunderstorm closest to incident location Integrated Surface Hourly Database Other Weather at Weather Station during hour of incident which is closest to other incident location Integrated Surface Hourly Database Block Characteristics Percentage of Population without Government Assistance Census Block Group Characteristics US Census 2000 Summary File 3 Poverty Rate Census Block Group Characteristics US Census 2000 Summary File 3 Total Area Census Block Group Characteristics US Census 2000 Summary File 3 Density Census Block Group Charactedstics US Census 2000 Summary File 3 Total Population Census Block Group Characteristics US Census 2000 Summary File 3 Percentage Rural Census Block Group Characteristics US Census 2000 Summary File 3 Proportion of Population Less than 5 Census Block Group Characteristics US Census 2000 Summary File 3 Proportion of Population 16-24 Census Block Group Characteristics US Census 2000 Summary File 3 Proportion of Population More than 65 Census Block Group Characteristics US Census 2000 Summary File 3 67 Incident Characteristics Minutes Dispatch to Scene Minutes from dispatch of ambulance to arrival at scene:response time Prehospital Report Distance to Closest Agency Distance from incident to closest eligible,non mutual aid agency(Miles) Prehospital Report/Utah Bureau of EM: Month of year indicators Month of incident Prehospital Report Hour of day indicators Hour of day of incident Prehospital Report Weekend indicator Equals 1 if incident occurred on weekend Prehospital Report Weekend indicator interacted with hour of day Interaction of hour of day and weekend Prehospital Report Injury or Illness Category Abdominal pain/problems Primary Injury Illness as Assessed by EMS Prehospital Report Allergies/hives/medicine reactions/stings Primary Injury Illness as Assessed by EMS Prehospital Report Animal bites Primary Injury Illness as Assessed by EMS Prehospital Report Assault/rape Primary Injury Illness as Assessed by EMS Prehospital Report Back pain Primary Injury Illness as Assessed by EMS Prehospital Report Breathing problems Primary Injury Illness as Assessed by EMS Prehospital Report Bums Primary Injury Illness as Assessed by EMS Prehospital Report Carbon monoxide poisoning/inhalation Primary Injury Illness as Assessed by EMS Prehospital Report Cardiac/respiratory arrest Primary Injury Illness as Assessed by EMS Prehospital Report Chest pain Primary Injury Illness as Assessed by EMS Prehospital Report Choking Primary Injury Illness as Assessed by EMS Prehospital Report Convulsions/seizures Primary Injury Illness as Assessed by EMS Prehospital Report Diabetic problems Primary Injury Illness as Assessed by EMS Prehospital Report Drowning/diving accident Primary Injury Illness as Assessed by EMS Prehospital Report Electrocution Primary Injury Illness as Assessed by EMS Prehospital Report Eye problems Primary Injury Illness as Assessed by EMS Prehospital Report Falls Primary Injury Illness as Assessed by EMS Prehospital Report Headache Primary Injury Illness as Assessed by EMS Prehospital Report Heart problems Primary Injury Illness as Assessed by EMS Prehospital Report Heat/cold problems Primary Injury Illness as Assessed by EMS Prehospital Report Hemorrhage Primary Injury Illness as Assessed by EMS Prehospital Report Industrial/machinery accidents Primary Injury Illness as Assessed by EMS Prehospital Report Overdose/poisoning/ingestion Primary Injury Illness as Assessed by EMS Prehospital Report Pregnancy/childbirth/miscarriage Primary Injury Illness as Assessed by EMS Prehospital Report Psychiatric/behavioral problems Primary Injury Illness as Assessed by EMS Prehospital Report Specific diagnosis/chief complaint Primary Injury Illness as Assessed by EMS Prehospital Report Stab/GSW Primary Injury Illness as Assessed by EMS Prehospital Report Stroke/CVA Primary Injury Illness as Assessed by EMS Prehospital Report Traffic injury accident Primary Injury Illness as Assessed by EMS Prehospital Report Traumatic injuries,specific Primary Injury Illness as Assessed by EMS Prehospital Report Unconsciousnesstfainting Primary Injury Illness as Assessed by EMS Prehospital Report Unknown problem Primary Injury Illness as Assessed by EMS Prehospital Report Diarrhea Primary Injury Illness as Assessed by EMS Prehospital Report Ear Problems Primary Injury Illness as Assessed by EMS Prehospital Report Fever Primary Injury Illness as Assessed by EMS Prehospital Report Transfer Primary Injury Illness as Assessed by EMS Prehospital Report 68 Appendix Table 2A: Basic Specification Controlling For Block Group Fixed Effects Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0381 0.0608 0.0942 0.0756 0.0364 0.1228 (0.0181)' (0.0281) (0.0364)' (0.0409) (0.0475) (0.0536)' OLS(Coefficient on RT) -0.0026 -0.0022 0.0236 0.0224 0.0126 0.0081 (0.0072) (0.0079) (0.0141) (0.0166) (0.0194) (0.0241) IV(Coefficient on RT) 0.9719 1.5489 2.4027 1.9262 0.9289 3.1319 (0.4355)' (0.7150)' (0.9283)' (1.0137) (1.1740) (1.4068)' Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1st Stage(Coefficient on Distance) 0.0392 0.0392 0.0392 0.0392 0.0392 0.0392 (0.0097)' (0.0097)' (0.0097)' (0.0097)' (0.0097)' (0.0097)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group fixed effects,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation.Robust standard errors in parentheses. See Appendix A for a discussion of the sample.'Indicates significant at 5%level. 69 Appendix Table 3A: Main Regression Specification -Ln (RT) Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0150 0.0342 0.0780 0.1112 0.1392 0.2443 (0.0083) (0.0123)' (0.0177)' (0.0200)' (0.0232)* (0.0284)* OLS(Coefficient on In(RT)) -0.0917 -0.0389 0.2465 0.3463 0.4487 0.6812 (0.0650) (0.0708) (0.1086)' (0.1299)' (0.1615)' (0.2130)' IV(Coefficient on In(RT)) 1.3577 3.0865 7.0474 10.0429 12.5659 22.0616 (0.7505) (1.1291)' (1.6220)' (1.8129)' (2.0415)' (2.5830)' Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1 st Stage(Coefficient on Distance) 0.0111 0.0111 0.0111 0.0111 0.0111 0.0111 (0.0007)' (0.0007)' (0.0007)' (0.0007)' (0.0007)' (0.0007)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. See Appendix A for a discussion of the sample.'Indicates significant at 5%level. 70 Appendix Table 4A: Basic Regression Specification Controlling for Distance to Closest Hospital Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0146 0.0340 0.0781 0.1106 0.1396 0.2417 (0.0084) (0.0125)' (0.0178)' (0.0202)* (0.0234)* (0.0286)* OILS(Coefficient on RT) -0.0080 -0.0061 0.0201 0.0268 0.0152 0.0005 (0.0063) (0.0069) (0.0124) 0.0149 (0.0176) (0.0222) IV(Coefficient on RT) 0.1399 0.3249 0.7462 1.0571 1.3345 2.3099 (0.0801) (0.1214)* (0.1756)' (0.1973)' (0.2226)' (0.2885)' Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1 st Stage(Coefficient on Distance) 0.1046 0.1046 0.1046 0.1046 0.1046 0.1046 (0.0082)' (0.0082)' (0.0082)' (0.0082)' (0.0082)' (0.0082)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects as well as distance to closest hospital.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. See Appendix A for a discussion of the sample.'Indicates significant at 5%level. 71 Appendix Table 5A: Basic Regression Specification Excluding Transfers Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0106 0.0375 0.0787 0.0984 0.1262 0.2092 (0.0092) (0.0147)* (0.0201)' (0.0221)* (0.0254)* (0.0308)* OLS(Coefficient on RT) -0.0070 -0.0047 0.0012 0.0104 0.0091 -0.0241 (0.0075) (0.0080) (0.0117) (0.0143) (0.0176) (0.0231) IV(Coefficient on RT) 0.0881 0.3121 0.6560 0.8202 1.0518 1.7438 (0.0769) (0.1254)' (0.1733)' (0.1882)' (0.2107)' (0.2589)' Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1st Stage(Coefficient on Distance) 0.1200 0.1200 0.1200 0.1200 0.1200 0.1200 (0.0103) (0.0103) (0.0103) (0.0103) (0.0103) (0.0103) N 66,858 66,858 66,858 66,858 66,858 66,858 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. Transfers are excluded.'Indicates significant at 5%level. 72 Appendix Table 6A: Basic Regression Specification-Outcomes Weighted by Quality of Match Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0041 0.0102 0.0217 0.0298 0.0331 0.0569 (0.0032) (0.0043)* (0.0061)* (0.0067)* (0.0072)* (0.0089)* OLS(Coefficient on RT) -0.0034 -0.0030 0.0039 0.0059 -0.0013 -0.0114 (0.0021) (0.0023) (0.0040) (0.0049) (0.0055) (0.0066) IV(Coefficient on RT) 0.0370 0.0929 0.1966 0.2703 0.3001 0.5156 (0.0295) (0.0401)* (0.0571)* (0.0620)* (0.0662)* (0.0885)* Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1 st Stage(Coefficient on Distance) 0.1103 0.1103 0.1103 0.1103 0.1103 0.1103 (0.0084)* (0.0084)* (0.0084)* (0.0084)* (0.0084)* (0.0084)* N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.MortaIity outcomes are multipled by 100 for ease of coefficient interpretation.Robust standard errors in parentheses. For discussion of the sample,see Appendix A.*Indicates significant at 5%level. 73 Appendix Table 7A: Basic Regression Specification -Mortality Match Scores Above 20 Dependent Variable 1 day 2 day 30 day 90 day 1 year 4 year mortality mortality mortality mortality mortality mortality Reduced Form Regression of Mortality on Distance(Coefficient on Distance) 0.0154 0.0348 0.0785 0.1134 0.1397 0.2433 (0.0084)* (0.0123)' (0.0177)* (0.0200)' (0.0230)* (0.0283)' OLS(Coefficient on RT) -0.0082 -0.0058 0.0217 0.0294 0.0174 0.0044 (0.0063) (0.0068) (0.0123) (0.0148)` (0.0175) (0.0220) IV(Coefficient on RT) 0.1394 0.3152 0.7115 1.0280 1.2667 2.2058 (0.0757) (.1141)* (0.1646)` (0.1852)' (0.2081)* (0.2694)` Dependent Variable Response Response Response Response Response Response Time Time Time Time Time Time 1st Stage(Coefficient on Distance) 0.1103 0.1103 0.1103 0.1103 0.1103 0.1103 (0.0084)* (0.0084)' (0.0084)' (0.0084)' (0.0084)' (0.0084)' N 73,706 73,706 73,706 73,706 73,706 73,706 Note:Sample includes report of shortest response time to scene;distance is that of closest non-mutual aid agency.All specifications include block group characteristics,hour,week,week by hour, month and injury illness fixed effects.Mortality outcomes are multipled by 100 for ease of coefficient interpretation. Robust standard errors in parentheses. For discussion of the sample,see Appendix A.'Indicates significant at 5%level. 74 Appendix Table 8A:Treatments and Medications Provided at the Scene Treatments: Airway Inserted Assisted Ventillation Bleeding Controlled Blood Tubes Drawn Cervical Immobilization CPR Defibrillation En d otrach e a I I ntu bation Esophageal Obturator Airway Extrication Equipment Heimlich Maneuver Intraosseous Infusion IV MAST Inflated MAST Not Inflated NG Tube OB Care Oxygen Mask Oxygen Cannula Pneumo Tube Spinal Immobilization Splinted Suctioned Turned on Side No Treatment Given Vitals Assessed Monitored Vitals Unobtainable Other Assessment/Monitoring Other Treatments Medications: Adenosine Albuterol Sulfate Aminophylline Atropine/Atropine sulfate Baby Aspirin Benadryl/Diphenhydramine Bretylol/Bretylium tosylate Calcium Chloride Charcoal Decad ron/Hexad ro I/Dexa methasone Demerol/meperidine Dextrose 5%(D5W) Dextrose 50%-Glucose(D50W) Epinephrine 1:1,000/Adrenalin Epinephrine 1:10,000/Adrenalin Haloperidol/Ha Idol Intropin-Dopamine HCL Ipecac Syrup Isuprel HCL-Isoproterenol Lactated Ringers Lasix-Furosemide Luminal-Phenobarbital Mark I Midazolam/Versed Morphine Sulfate Narcan-Naloxone HCL Nitrostat-Tri Nitroglycerine Normal Saline Nubain Oral Glucose Phenergan-Promethazine HCL Pitocin-Oxytocin Sodium Bicarbonate Thiamine Valium-Diazepam Xylocaine-Lidocaine-IV Drip Xylocaine-Lidocaine-Direct IV Xylocaine 1%-1%Lidocaine w/o Epinephrineaine Other Medications 75 Appendix Table 9A: Sample Construction Number of Observations Original Sample 145,764 Duplicates 113 Cancelled Calls Or Name Missing 25,546 Response Time Missing 19,294 Injury Illness Code Missing 4,285 Weather Missing 831 Agency Distance Missing 3,888 Not In Salt Lake City Area 11,024 Block group Characteristics Missing 133 Second or Third Etc. on Scene 6,944 Main Regression Sample: 73,706 Note: The final regression sample may differ by one or two observations depending on the specification. 76 Appendix Figure 1A: Distribution of Matching Scores for Mortality Records v M Z, C N O . .s 10 20 30 40 50 60 Matching Score .w Appendix Figure 2A: Distribution of Matching Scores for ED Records N . q, Ln . C k LO O 10 20 __ Q 40 50 Matching Score I 77 Appendix Figure 3A: Map of Data Connections EMS Provider Data Sunset/Sunrise Data Weather Data Traffic Data Census Data (ie.community, neighborhood characteristics) Prehospital Records ED Records Mortality Records 78 .s L > ma C O C 0 y N > C Q W N N y O d E ;a a¢ 3 v d A m _ c 3 a= aUi t D E ,M E H (n Y > U d�) w 'o d u Y �. . . • • . y� N`C a h C N J Y V d mLap 00 m m E d B PE N d) Q ar m N m O r t m _ Z DV o J�= a� d tl �- W 3 N W N m o G Q E U) C N °' E o O m o Q 6 Q C U C E 1O E a � d O p U t U s = a ID m n m y Im 1. o Y R m W O Y d N U d d N U U ME L 6 d t to t � d F U A E f0 a> C� T _ C O d Y O �`L O h U N d N N C H J U E > c N 5 'Sm U L w N 6 Y = H a I c d Z C E y w aE E c m u tp1 d J ww O d o o m m 2 °N O- c •" LL N N QV W U LL L C L E .L.. f0 N N H .N. O - C C w O T C C r > O E L N C 3 N o E d m VC p - 3 V j y YY•J y c Gl a o LL c'a c o c Od O3 t N_?u E O E N "' /a C :w s 0 m -m U i o J J N O aQ> � �1c aN�S J i C a N a 4) V o <n 2LLa _ OL > <n °u Ea (0 m ai 4 n Z C M U .p N C C '� N N O O O N �. m ►. ° aEi m 'm d 0o 0 N O N C oC Q W UJ n N y an d C w N U - N N « y rp N u n Z W g m o > c4 .o o y c o o Y W O R V ' (/J L N O N Y U1 (n E Q O C U +/ a A J N E L j� N C a d C - O E pl N m U ` E 5 U J Z rn E C 3 L J t0 C 3 N N d d f c O a �^ Q E N _ {L a° m (n LL c m C c L m a _ E Z N c F- m cc W V o N J � N 0) Q N LL co N 10 E � v c o n '^ ce o u U > C 0 N Y E 3 E 3 w y n J u° L ° m m M o m v c o r « t c c ■ O h N m o w n : Q • n m >. N V j$? o�v e m y `m m zm_._ «m o w e c O y E 0 d 0 v o m «a m E, o o IL v c j T « m p M R E E 0= a 0 a -Q.V p o c c d U) 3 O R ~ m tZ - E O g o t o a•C O y m e d a' i w Y f 3 O d n c o ° V L E ii O o 3 E S Q« l6 ++ m m af E N ; Q U a >, V Q O m Q.u, a s p a a>L U in 3 p d in OW Q° 2,m m 3 Q N�•O o y22 W '-s. U d ° M L?� om �' HF N;`a Nom. u`°irmmw 16 !?U m.o `° WO Nro� �� m oiZ m opt t of Z" °c �-- a� •d �Z m c5 C O Lii F-ca E d .^-L V1�o b C W V 0==a +' `� a 0 N U)N c r� 6 N 3 v o 9 M N I u c_m d N~ m o u' q '� c o E m y F a 0 o U �' m d o p p L D m v d ^o U d _ c d a w v 0 w m d N C d m y m mi0a Q0 � NOwNN d "' NN a0-:: °om c�OEmm I�. dNmOoo ■ Nmpuj {� � NU Ora m E d d� C ;°tai�m` rn N ro ,�p °D o °> n a ��tO d C C ^Ui�` 4m, IL r�U nc f0 N mi:< E�o O L d m y 3 C w ^ '^ ° E V A ^ro c c '° d C W c c a w m avi w 7 "a o a E O m 3 a o rn a 0 > » o m m I > y > MIL m y a U m w C m y i 0 d O y c L ` >O o v.a ` m o 'o M M w 'm �' ° d a m d d Z o Q9 R m `°. n M da M'dmZ oF- n M n « mm n Fa00 ,� V ► .oC7= aan t9 m mt °viy Off" � aZ win s 0 m Ora = 3Ec n LL �Jmcmn 10 `°O nE M d may C mF- '0m� n m m� m m v n ai.O ??a d `° n aa+ Q m >,Dn m O c Q m°'r d y J t a m U m o R O C Q o mo O d a Q t of �L ad Q p ` E o JO m d a Q m o ODJ V ��w mF YIQ N V Jcn`oaU V = �mw rnm Z �a�n-o m 222111 f J Jam« `�a IL� �U E U C _ r m C 69 m E N N��p CA U Y ; tm O Y 0 c c_ Y N r O O > O l6 N > C L C L U d p U1 f6 0 7 U —.0 c C 3 z d a 0 N U N N VI c fn °0 '� Ca 03 N J c a O c CL (6 U m N E 16 p l0 ` N U d (D a 0 p 0 CD N _ N Ol E N t • R y N l0 d o Of 3 C U C C N a 3 > E n o N C TI F E C A, Y b N K O M N aD E rn N •� C 0 O O n v � E V O V N V CT Y N E 3 LL L .r �d N N N Y L L N N O m Q �a �B � m R9 °v5— tea O Co >.m arc co O U m N N N >U N L � CL ma ° d Q d m J I O a E Z J u y m tt n L c rn m Q i O U Y a c m 3 0 o� D O N 3T N.T r O_ O � O N p .- O L N L � C T� Q� v E Q o N c Z o E ay+ N O N J � C � N C �p m N p -or R E f �p N VI C n lw O Y v c b � c E � v N M d co E rn o U rn o G Y w 3 d LL L AIHA Journal 63:768-789 (2002) Ms. 4306 Construction Noise: Exposure, AUTHOR Effects, and the Potential for Alice H. Suter Alice Suter and Associates,575 Rernediation; a Review and Dogwood Way,Ashland,OR 97520 analysis More than one-half million construction workers are exposed to potentially hazardous levels of noise, yet federal and state Occupational Safety and Health Administration (OSHA) programs provide little incentive to protect them against noise-induced hearing loss. Construction noise regulations lack the specificity of general industry noise regulations. In addition, problems that characterize the construction industry, such as worker mobility and the large proportion of small businesses, make implementing hearing conservation measures more difficult.The apparent severity of exposure depends greatly on the measurement method, with the 3-dB exchange rate almost always showing higher average exposure levels than the 5-dB (OSHA) rule. Construction workers demonstrate hearing threshold levels that generally conform to those expected in manufacturing.The prevalence of hearing protection device (HPD) use among U.S. construction workers is very poor, partly because of perceived difficulties in hearing and understanding speech communication and warning signals. In addition, masking by noise of necessary communication and warning signals is of particular concern in construction, where recent research demonstrated the association between fatalities and the failure to hear reverse alarms. Judicial use of HPDs is of the utmost importance, along with avoiding overattenuation, selecting HPDs with uniform attenuation, and using noise-attenuating communication systems when possible. A successful hearing conservation program in British Columbia can serve as a model for the United States, with a long-standing positive safety culture, a high percentage of HPD use, improvement in average hearing threshold levels over the last decade, and a centralized record-keeping procedure, which helps solve the problem of worker mobility. However, controlling construction noise at the source is the most reliable way to protect worker hearing. U.S. manufacturers and contractors should benefit from the activities of the European Community, where noise control and product labeling in construction has been carried out for more than 20 years. Keywords: construction workers, hearing conservation, noise exposure "Tfiis"ieork was supported he fact that U.S. construction workers about half a million to 75 0,000.(1,4)In 1988 the in part by the U.S. are exposed to hazardous levels of noise National Institute for Occupational Safety and Occupational Safety and Health Administration and sustain significant hearing impair- Health (NIOSH) recommended that the Oc- (OSHA) under contract Tinents is not news. That these impair- cupational Safety and Health Administration's #B9F83447.An`' merits are at least as great as would be expected (OSHA's) noise regulation,including the bear- opinions thf the author and expressed are those of from an industrial population became evident ing conservation provisions, be extended to os do not necessarily reflect during the 1960s and 1970s.11r" Estimated construction workers as well as to other occu- Ihe views of OSHA. numbers of construction workers exposed to pations not then covered.(-)A 1995 conference potentially hazardous levels of noise range from jointly sponsored by NIOSH and the National 768 ANA Journal (63) November/December 2002 Copyright 2002,American Industrial Hygiene Association TABLE I. Construction Employment Data (1995) and NIOSH Estimates (1981-1983) of Numbers Exposed at or Above 85 dBA (Adapted from Hattisl°I) 1995 NIOSH% 1000s Exposed SIC Industry Description Employees >85 dBA"e 152 Residential builders 609 12 154 Nonresidential builders 567 12 161 Highway and street construction 223 27 162 Other heavy construction 526 17 171 Plumbing, heating,and air conditioning 712 7 172 Painting and paper hanging 179 20 173 Electrical work 593 13 174 Masonry, stonework,and plastering 409 8 175 Carpentry and floor laying 219 32 176 Roofing,siding,and sheet metal 208 11 177 Concrete work 248 40 179 Miscellaneous special trade contractors 548 14 Total(in 1000s) 5041 ^Percentages were rounded to the nearest integer. 'Total number exposed>85 = 754,174.1 Hearing Conservation Association identified construction work- short periods of employment,and the consequent difficulty in ve- ers as an "underserved"population.(6) cord keeping and follow-up present daunting obstacles. This re- In the United States there are separate noise regulations for port attempts to address these issues and offer possible solutions. construction (29 CFR 1926.52 and 1926.101) and general in- dustry(29 CFR 1910.95).The permissible exposure limits(PEL) and requirements for noise control are essentially the same,an 8- NOISE EXPOSURE LEVELS OF hour time-weighted average exposure level(TWA)of 90 dBA with CONSTRUCTION WORKERS a 5-dB exchange rate between allowable duration and noise level. Engineering or administrative controls are required to be imple- Evidence of Overexposure mented above this level, and hearing protection devices (HPDs) must be issued and worn when exposures exceed the PEL. Both Several studies conducted in the 1960s and 1970s indicated that regulations require hearing conservation programs (HCPs) for construction workers were overexposed. In the early 1980s overexposed workers, but there are two essential differences: (1) NIOSH estimated the numbers of workers in various occupations, the noise regulation for general industry requires the initiation of including construction, exposed to noise levels above 85 dBA.(8) HCPs at an action level of 85 dBA,whereas the construction reg- Table I gives the estimated percentage of workers in various con- ulation does not use an action level;and (2)the general industry struction trades exposed to noise levels above 85 dBA.Although regulation gives detailed requirements for noise exposure moni- the percentages were derived in the early 1980s,the data on num- toring, audiometric testing, (HPDs),worker training and educa- bers of employees in the various trades has been updated to tion, and record keeping, whereas the construction regulation 1995.(4) (1926.52) has only a general requirement for"continuing effec- The highest percentages of overexposed workers occur in high- tive hearing conservation programs"above the PEL.Construction way and street construction,carpentry,and concrete work.Of the regulation 1926.101 merely mandates the use of hearing protec- approximately 5 million construction workers in 1995, the total tion above the PEL and requires insert devices to be fitted or. number exposed to noise levels of 85 dBA and above was about determined individually by"competent persons." 754,000. Because NIOSH sampled noise levels rather than ex- Current enforcement of these noise regulations is not rigorous, posures, these are not TWAs, and the actual numbers would be particularly in construction. Neither the noise reduction nor the somewhat lower when using TWA, but these numbers are useful hearing conservation provisions are well enforced in construction. for ranking the extent of the hazard by trade and to estimate the For example, of more than 18,000 federal construction inspec- upper bound of the total number exposed. tions during fiscal year 1998,only 63 inspections were conducted Studies of Noise Exposure in Construction Workers for the noise regulations,resulting in a total of 79 citations.(')Lack p of enforcement characterizes state as well as federal programs. Recent studies have supplemented the earlier ones with noise do- Even those states that have adopted the general industry noise simetry, providing a more precise and comprehensive picture of regulation for construction,such as the state of Washington,have construction workers'exposures.Table II,containing information failed to enforce the hearing conservation provisions. from Sinclair and Haflidson,(9)shows average daily noise exposures Part of the problem has been a perceived lack of information of construction workers by type of construction.The authors ob- about the noise exposures of construction workers,although sev- tained samples of up to 5 hours in 27 construction projects during eral studies have been conducted over recent decades in the Unit- 1991-1992,which,due to the repetitive nature of the work,they ed States and Canada.A more salient reason for the lack of activity considered representative of a full shift.They measured according in this area is the impracticality of the usual approaches to HCPs to the proposed Ontario Noise Regulation,which specifies a 3-dB in the construction arena. Mobility among construction workers, exchange rate.00)TWA sound levels using the 3-dB exchange rate AIHA Journal (63) November/December 2002 769 TABLE Il.Average Noise Exposure Levels (Daily Leq) by Type of TABLE IV.Average Daily Noise Exposure Levels (8-Hour TWA) of Construction (Adapted from Sinclair and Haflidson(9() Heavy Equipment Operators and Associated Laborers in dBA Type of Number Average Range (Adapted from Legris and Poulin(")) Construction Samples dBAF dBA1 Mean Residential 7 93 87-96 Operator or Task TWA SD Range Roads/bridges 16 93 84-100 Heavy-duty bulldozer 99 5 91-107 Shop workB 26 95 85-104 Vibrating road roller 97 4 91-104 Maintenance 2 95 91-97 Light-duty bulldozer 96 2 93-101 ICI° 23 96 81-108 Asphalt road roller 95 4 85-103 Sewer/water 17 99 85-108 Wheel loader 94 4 87-100 Plant work 6 101 87-106 Asphalt spreader 91 3 87-97 Power station 6 108 93-113 Light-duty grader 89 1 88-91 Total 103 99 81-113 Power shovel 88 3 80-93 "Rounded to the nearest integer Laborers 90 6 78-107 BShop work=work in a contractor's fabrication shop. Crawler crane>35 ton ICI =industrial,commercial,or institutional. Noninsulated cab 97 2 93-101 'Plant work=work in a construction contractor's plant. Crawler crane<35 ton Noninsulated cab 94 3 90-98 Insulated cab 84 3 80-89 are sometimes referred to as"equivalent continuous sound levels" Rubber tired cane>35 ton or L., Of the 103 workers sampled, the average noise exposure Noninsulated cab 84 5 78-90 level was approximately 99 dBA. Insulated cab 74 9 59-87 Table III,also from data gathered by Sinclair and Haflidson,(9) Rubber tired crane<35 ton shows daily average noise exposure levels by trade, activity, or Insulated cab 81 4 77-87 Truck-mounted crane 79 2 76-83 equipment. The authors caution that in many cases the samples Tower crane 74 2 70-76 are too small to state definitively which sectors of construction have the greatest risk,but,in their words,"the magnitude of the I problem is obvious.11(p,459) From Table III it is clear that boiler- makers and iron workers, at least those studied here, are heavily work shift was 9.5 hours with a range of 8-12 hours,and the data exposed, with average exposure levels of 108 and 105 dBA, re spectively.The authors concluded that pneumatic tools were large- Were normalized to an 8-hour shift.Of the 250 samples taken,65 ly responsible. were from laborers and 185 from heavy equipment operators. Table IV gives 8-hour average noise exposure levels for heavy In another Canadian study, Legris and Poulin(") reported on the noise exposure of heavy equipment operators and laborers. equipment operators and laborers according to Legris and Poulin. The data were collected in Quebec in the late 1980s and the mea- The authors explained the variations in exposures by such factors surements used a 5-dB exchange rate.The average duration of the as the location and type of muffler,amount of time the equipment was idling or under load,the power rating of the engine,and the nature of the task. Of particular importance were the presence or TABLE III.Average Noise Exposure Levels (Daily Leq) by Trade, absence of an insulated cab and the design of the equipment.Note Activity, or Equipment (Adapted from Sinclair and Haflidson(9)) the 10-dB difference between insulated and noninsulated cabs and Trade,Activity, Number of Average Range the 13-dB difference between crawler and rubber-tired cranes or Equipment Samples dBAA dBA^ weighing more than 35 tons with noninsulated cabs. The results of another,smaller study of operating engineers and Carpentter er 3 90 82-94 Install 2 89 88-90 laborers are in general agreement with those of Legris and Poulin. Mason 14 91 84-97 Greenspan et al.(12) found 8-hour TWAs ranging from about 68 Framer 7 93 87-96 to 103 dBA,with a mean TWA of 89 dBA, although five of the Sprinkler 6 94 86-97 eight samples were above 90 dBA.The study should not be con- Forming 5 94 87-97 sidered conclusive because of the small sample size(N=8)and the Refractory 2 95 91-97 wide range of exposures,but it gives a clear example of the benefits Sheet metal 17 96 85-104 of noise reduction in machinery design.The 68-dBA exposure was Ironworker 2 105 98-108 achieved in a Caterpillar 980 front-end loader with an enclosed, Boilermaker 6 108 93-113 sound insulated cab. Paver 6 90 84-92 Front-end loader 2 90 87-92 Data from the Worker Compensation Board of British Colum- Scraper 5 90 88-91 bia(13)are also in general agreement with the above data,although Curb machine 3 93 86-96 such factors as occupations, sample sizes, and the exchange rate Roller 2 98 93-100 vary from study to study. Crane 3 99 95-102 Several factors make it difficult to draw comparisons between Dozer 6 102 85-108 these kinds of studies. First,the exchange rate has an effect,with Heavy equipment 4 90 86-94 the 3-dB exchange rate almost always producing higher exposure Gravel plant 4 102 88-106 levels than the 5-dB exchange rate.Second,the length of the work Other 4 88 81-90 Total 103 99 81-113 shift,of course,increases the exposure level;and third,the amount ^Rounded to the nearest integer of time each worker spends on each piece of equipment also has an effect. 770 AIHA Journal (63) November/December 2002 110 TABLE V. Median 1-Min Sound Levels in L, by EquipmenVTool (Adapted from Neitzel et al.(") Using Additional Data Supplied by 100 Neitzel(tsl) Tool Drive Median SD Range 90 -T-rJ,- TL TT Tool Name Type Minutes dBA dBA dBA Air compressor pneumatic 255 96 11.2 70-114 80 tea Backhoe gasoline 1908 86 6.0 70-108 Bulldozer gasoline 494 89 8.2 70-104 Chipping gun pneumatic 1151 93 13.1 70-120 M 70 Chopsaw electric 631 80 8.6 70-106 Crane electric 3059 78 7.7 70-110 J 60 Forklift gasoline 3727 85 5.8 62-125 a MOSHA TWA Hand hammer mechanical 4443 85 8.0 56-110 o Jackhammer pneumatic 267 104 11.4 70-112 Z 5° un LSO-Slow TWA Lejeune N- w w � � .� "y 1 g pneumatic 390 89 8.4 70-120 Site Preparation Structural work Finish Work Truck gasoline 970 78 8.0 70-123 Welding torch other 1923 84 8.9 70-118 Stage of Construction FIGURE 1. Comparison of OSHA and NIOSHIISO TWAs by site stage of construction. Reprinted from Neitzel et aP") with dosimeters.t14,15> They found that using the 5-dB exchange rate permission of the first author. ("OSHA TWA"), 13%of their samples exceeded the 90-dBA cri- terion and 40% exceeded the 85-dBA criterion. Using the 3-dB exchange rate("ISO-slow TWA"),45%exceeded the 90-dBA cri- Effeet of the Exchange Rate terion and 80% exceeded the 85-dBA criterion. These large dif- ferences,according to stage of construction,are presented graph- Varying and intermittent noise environments are typical of the ically in Figure 1.(14) The boxes represent the range of noise construction industry, unlike many manufacturing industries in exposure between the 25th and 75th centiles, the brackets show which the noise is relatively continuous.Much of the construction the entire range of exposures,and the horizontal lines within the process takes place outdoors,without the reverberant buildup typ- boxes represent medians.One can see that the differences are larg- ical of factories, and it is often characterized by the high-level er in finish work than in site preparation and structural work.The short-duration sounds of hand tools. When noise from heavy authors found the differences to be statistically significant for both equipment predominates, however, the sound tends to be more finish work and structural work,although not for site preparation. continuous. Thus, the differences between measurements using Figure 2, also from Neitzel et al., compares noise exposure the 3- and the 5-dB exchange rate become more pronounced as levels using the 3-and 5-dB exchange rates by construction trade. the type of construction moves from site preparation, which in- The differences are smallest for the operating engineers and great- volves much use of heavy equipment,to finishing work involving est for carpenters,but they are also substantial for ironworkers and carpentry and the use of hand tools. laborers. In this case all of the differences were significant at the Neitzel,Seixas,and their colleagues at the University of Wash- 0.05 level. The authors found an overall difference between the ington measured the noise exposure levels of 133 carpenters,la- 3- and 5-dB exchange rates of about 7 dB. borers, ironworkers, and operating engineers with data-logging Relative Hazard of Construction Equipment 110 Because construction workers often use several different pieces of equipment,Neitzel and Seixas developed a method by which the 100 average noise contribution of the various tools and equipment could be assessed.Table V gives"1-min sound levels"ofconstruc- 90 lion equipment. This term represents an average of the 1-min dosimeter readings in L., (3-dB exchange rate) that came from so periods when workers reported using a particular piece of equip- ment. For example, there was a total of 255 min during which m workers reported using an air compressor,and the median sound a 70 level, integrated during each 1-min period, was 96 dBA, with a a range of 70 to 114 dBA and a standard deviation of 11.2 dBA. (u 60 E&sm r, The large standard deviations for most pieces of equipment reflect g so Osasaw ivw the variations of sound levels and conditions of use. N= 53 59 57 57 35 35 29 These 1-min average noise levels do not represent noise doses Carpenter Ironworker or 8-hour time-weighted exposures,but they do provide a means Laborer Operating Engineer for estimating the relative hazard of the various pieces of equip- Trade ment. The reason they may be somewhat lower than measure- ments taken with a sound level meter is that they tend to incor- porate some amount of time when the equipment is either idling FIGURE 2. Comparison of OSHA and permission IS f TWAT t trade. or actually turned off. Although it would be useful to have data Reprinted from Neitzel et al. with permission of the first author. on additional types of equipment,as well as various models of the AIHA Journal (63) November/December 2002 771 TABLE VI. Job Specialties Showing Incidence of Hearing Loss Average hearing threshold levels among all roofers compared to (Adapted from Ohlin(111) NIPTS predicted at 85 dBA No.with Percentage No.Audiograms Hearing wim"ea^n9 10 90h percemie Job Title in Specialty Loss, L—A Zo 0 some Crane operator 116 38 33 v 30 0[ percentile Welder 602 176 29 _ �� —� 40 Average of Roofers Carpenter 811 214 26 �+- Engineering 340 84 24 50 equipment operator 60 Wood worker 258 61 24 70 Motor vehicle 983 185 19 500 1000 2000 3000 4000 6000 operator Frequency,Hz Electrician 495 92 19 NIPT predicted for a 50 year old man after 20 yrs of dally TWA exao-re cf 85 d6A AHTLs greater than an average of 25 dB at 1000,2000,and 3000 Hz. FIGURE 3. Average hearing threshold levels among roofers compared with those of a hypothetical 50-year-old population exposed to 85 dBA for 20 years as predicted by ISO 1999 using same type of equipment, these data show that pneumatic tools, Annex B. Reprinted from Schneider and Tennenbaum(g') with such as jackhammers and chipping guns,pose a greater risk than permission of the first author. those powered by other means. Chemical and Combined Exposures analysis based on the combined data from the Public Health Ser- In recent years there has been a substantial increase in information vice and Health Examination Surveys of 1960-1961 and 1971— on the adverse auditory effects of chemicals,especially when com- 1975.The authors divided industrial workers into three categories: bined with high levels of noise.OSHA estimates nearly one million construction,manufacturing/mining,and other.They found that construction workers arc occupationally exposed to lead,tl7f a sub- the construction category showed the greatest amount of hearing stance known to be ototoxic.«$•19> Solvents, such as toluene and loss for all degrees of severity and at all ages, demonstrating the xylene, have been implicated as causes of occupational hearing magnitude of the problem in construction and indicating that the loss, and, particularly when combined with noise, appear to ex- onset of noise-induced hearing loss starts early. The relative risk acerbate the hazard to hearinl In a report on construction for blue-collar construction workers was three times that of white- laborers,Burkhart et al.(24)placed toluene and xylene high on the collar workers. In addition,white-collar construction workers also list of hazardous chemicals and physical agents in terms of esti- had more hearing loss than their counterparts in other industries. mated number of exposed workers. Until more details are known A recent study of hearing loss among 66 roofers was conducted about the combined exposures of construction workers,the exist- by Schneider and Tennenbaum.(27)Subjects completed a question- ing data in this area should be used as added incentive for diligence naire that included information on other hazards,such as exposure in protecting workers, both from noise and from potentially haz- to vibration, fuels,thinners/solvents,paints, glues,lead,extreme ardous chemicals. heat, and extreme cold, as well as information on hypertension and shooting habits. The average age was 48 years with 20 years on the job. Subjects reported that they generally worked slightly HEARING THRESHOLD LEVELS OF more than halftime and they wore hearing protection infrequently CONSTRUCTION WORKERS (2 always, 7 often, 11 sometimes, and 46 never). The only con- founding variables that showed an effect were hypertension and AIthough there is not nearly as much information on hearing shooting.The authors adjusted the data for shooting by using only threshold levels of construction workers as there is on noise the right ear of the 18 subjects that reported use of weapons. exposure levels,fortunately,some data do exist.Studies as early as Figure 3, from Schneider and Tennenbaum,271 shows the av- the 1960s and 1970s pointed out the problem. LaBenz et al.0) erage hearing threshold levels of roofers compared with the me- measured the hearing of 66 operators of earth-moving vehicles dian,90th,and 10th centiles predicted by ISO 1999 for the same and found considerably more hearing loss than in a population age group exposed for 20 years to average levels of 85 dBA.The not exposed to noise for all age groups. Kenney and Ayer,c2)with roofers'hearing threshold levels fall between the median and 10th more sophisticated audiometric equipment, measured hearing centiles of the ISO prediction. threshold levels of 33 sheet metal construction workers who reg- Two factors might cause these thresholds to be overestimates ularly used hand-held power tools. They found noise-induced of the true hearing thresholds of roofers. First, the audiometric threshold shifts that were significant for every age group and room was quiet but not soundproofed,which would be likely to greatly exceeded expected hearing threshold levels for the older produce elevated thresholds in the low and middle frequencies, age groups. although lack of soundproofing is unlikely to affect thresholds Ohlin(25)prepared an inventory of civilian job specialties giving above 1000 Hz,where the major differences manifest. Secondly, the number and percentage of workers in each specialty with hear- a self-selection bias could occur because these subjects were vol- ing loss, defined as hearing threshold levels (HTLs) greater than unteers at a convention.The bias could,however,work the other an average of 25 dB at 1000,2000,and 3000 Hz.The list,found way in that some roofers might not volunteer because they did in Table VI,includes several jobs that are associated with construc- not want to confront the fact of hearing loss. One factor that tion activity. would cause these thresholds to be underestimates is that they are Waitzman and Sml performed a multivariate regression part-time exposures that are compared with full-time exposures in 772 AIHA Journal (63) November/December 2002 Carpenters — — Frequency in Hz. Predicted vs Actual HTLs 80 500 1000 2000 3000 4000 6000 8000 H 0 , 60 — eo 40 c ir 10 .........................�•...\........................... ....... 20 m x v \ 0 c 25 35 45 55 a 20 ---------------- -------------- `�...... ` .. ..... �.... I Age of Carpenter _ ?� v n Predicted HTLs for non-noise exposed worker .A 30 -•o--Ftedcted(t•PfS+Ape)�...... ... .,..•.!p,. ................. � I ®Predicted HTLs from TWAs of 95 dBA � —k—tom —o--1897 ■Actual HILs of carpenters —.— 1150 i999mBase B 4D .----------.___...-- FIGURE 4. Predicted compared with actual hearing threshold FIGURE 5. Hearing threshold levels of British Columbia levels at 4000 Hz for carpenters. Reprinted from Stephenson(") carpenters(triangles,1988;open circles,1997)plotted against a with permission of the author. population not exposed to noise(closed circles)and predictions of expected hearing threshold levels due to average measured exposures of carpenters of L•,91.3 dBA(dashed line).Reprinted from Gillis and Harrison(A with permission of the first author. the ISO method.Thus,to the extent that other roofers work lon- ger hours their hearing losses could be more severe. Figure 4,from Stephenson'(28)shows predicted compared with dBA. Once again the 1988 HTLs are worse than those of the actual hearing threshold levels at 4000 Hz for carpenters.The data control population not exposed to noise and better than would were collected by NIOSH personnel at a convention, so once be predicted according to the ISO standard. HTLs of the 1997 again, self-selection may have introduced a bias, either to higher population, however, mimic the nonexposed curve and are sub- or lower hearing threshold levels.The results are interesting,how- stantially better than would be predicted by the average exposure ever,because the author compares mean hearing levels of carpen- level of a similar group of equipment operators. The reasons for ters with a control group not exposed to noise (Annex A of ISO these improvements are most likely attributable to the success of 1999 or ANSI S3.44,which comprises hearing threshold levels of HCPs,which will be discussed further in the following sections. an ontologically normal[highly screened]population)and to me- It is possible that some of the improvements may be due to the dian hearing levels predicted by ISO 1999 (or ANSI S3.44) of learning effect, an artifactual improvement in HTLs that occurs persons exposed to average daily levels of 95 dBA for the same when people take several audiometric tests over a period of time. age groups. One can see that the carpenters' hearing threshold However,one cannot dispute the large differences between HTLs levels are considerably greater than those of the subjects not ex- of these workers and the HTLs that would be predicted from their posed to noise in all age groups,and worse than the 95-dBA pop noise exposures. ulations in the older age groups. These data would indicate, to the extent that this is a representative sample, that the exposures of carpenters equal or exceed an average Lrq of 95 dBA. HEARING PROTECTOR USE AMONG Undoubtedly,the most comprehensive HCPs for construction CONSTRUCTION WORKERS workers are those of the Worker's Compensation Board (WCB) in British Columbia.Figure 5,supplied by the WCB,shows HTLs Prevalence of Use of carpenters dating from 1988 and 1997.(29) These HTLs are plotted against a population from ISO 1999 Annex B (hearing The use of HPDs by U.S. construction workers has been notori- threshold levels listed in Annex B of ISO 1999[and ANSI S3.44] ously poor,although it has improved slightly in recent years.For are for an unscreened population in an industrialized country)not example,a 1967 study of occupational health in California noted exposed to noise and predictions of expected hearing threshold that HPDs were not considered practical because of heat, dust, levels (noise-induced permanent threshold shift plus age) calcu- dirt,and lack of washing and fitting facilities on job sites.(30)This lated from the measured exposures of a group of 63 carpenters in attitude was probably typical of construction in the United States British Columbia. The carpenters' data are for the right ear and until fairly recently. Even today,the use of HPDs in construction Annex B data are for the better ear,although any effect caused by is not widespread. Greenspan et al.(12)found that only one indi- this difference should be minimal. The average exposure of the vidual out of the group of operating engineers and laborers they measured group was an Leq of 91.3 dBA. One can see that the studied used HPDs, and this individual reported that he already carpenters' HTLs were slightly worse than that of the population had a hearing loss.Most of the group was older than 50 years and not exposed to noise but somewhat better than the predictions most reported that HPDs interfered with communication. based on ISO 1999. Also,there is a slight improvement between Table VII gives estimated numbers of workers exposed to noise the measured thresholds in 1997 and those from 1988 in the levels of 85 dBA and above in various segments of the construc- 6000- and 8000-Hz frequencies. tion industry and the reported percentage using HPDs.The num- Figure 6 shows the same kind of data for equipment opera- bers of exposed workers are based on NIOSH estimates from tors.(29)The ISO 1999 estimates of HTL are based on the mea- 1981-1983, updated to reflect 1995 construction employment sured noise exposures of 46 workers with an average Leq of 91.6 data.(4)The percentages are based on NIOSH observations from AIHA Journal (63) November/December 2002 773 Equipment Operators compliance appeared to spread into other sectors at that time.The Frequency in Hz widespread use of HPDs by 1988 is likely to be the primary reason 500 1000 200o 3000 4000 6000 8000 for the better-than-expected hearing threshold levels of the car- 0 - penters and equipment operators shown in Figures 5 and 6. rte. Practical Considerations - The need for construction workers to communicate with each oth- er is as great or greater than in most manufacturing industries. 1k This is particularly true of personnel operating heavy and mobile 20 % equipment,such as loaders,dozers,and cranes,as well as person- m `�.__ nel on the ground or in structures who need to communicate with them. Unless these workers are fitted with effective two-way or 30 fl :_ multiwa communications stems HPDs are likely to be viewed D 1SMge) o Y Y Y -.-lees as a hindrance to communication and the perception of warning -.a.-'S" signals. This is especially true of workers who have already in- curred a noise-induced hearing loss. Most of these noise-induced hearing losses occur in the fre- FIGURE 6. Hearing threshold levels of British Columbia quencies above 1000 Hz,which is the area most critical for the equipment operators(triangles,1988;open circles,1997)plotted understanding of speech.Unfortunately,HPDs attenuate most ef- against a population not exposed to noise (closed circles)and predictions of expected hearing threshold levels due to average festively in this same frequency range.Consequently,spoken com- measured exposures of equipment operators of L,, 91.6 dBA munication and indeed many warning signals become more diffi- (dashed line). Reprinted from Gillis and Harrison'') with cult to perceive and understand when the person with permission of the first author. noise-induced hearing impairment wears HPDs. There is a con- siderable body of research indicating that persons with noise-in- duced hearing loss are at an increased disadvantage in the percep- 1981-1983. One should keep in mind that the numbers exposed tion of speech and warning signals when they wear HPDs.)34) include all of those exposed to levels,not TWAs,of 85 dBA and By contrast, a recent laboratory study of the effects of HPDs above.Even so,the percentage observed using HPDs is quite low, and hearing loss on the ability to perceive a common back-up and virtually nonexistent in certain trades. signal indicated that persons with fairly severe losses could still The information in Table VIII summarizes the prevalence of detect a common reverse alarm at a signal-to-noise ratio of 0 HPD use according to various studies.In their survey of operating 0.01) These results are not definitive, however, because of the engineers,carpenters,and plumbers/pipefitters,Lusk and her col- small size of the experimental population and because the subjects leagues found that overall, 24% of those surveyed never used had no additional demands on their attention.It does suggest that HPDs when exposed to high levels of noise,and only 5.3%always even hearing-impaired persons wearing HPDs are able to perceive wore them when exposed.(32) warning signals under certain favorable conditions. By contrast, the majority of British Columbia construction There is also a body of research on listeners with normal hear- workers regularly used HPDs, even in 1988,when hearing con- ing that shows that the use of HPDs can actually improve the servation efforts were formally initiated in construction.According perception of speech and warning signals in high-noise conditions. to Harrison,'") British Columbia has required the use of HPDs This is especially true when the noise is continuous. It appears since 1967, and a positive safety culture has existed there since that the point at which HPDs no longer provide an advantage for the early 1970s,when hard hats and HPDs were fairly widely ac- normal-hearing listeners is between about 80 and 90 dBA-(34) cepted. Enforcement of hearing conservation requirements was However,much of construction noise tends to be intermittent stepped up in the early 1970s,mainly in the forestry industry,but or varying. Intermittent noise, which is typical of carpentry and TABLE VII. Estimated Numbers of Workers Exposed at or Above 85 dBA and Percentage Using HPDs (NIOSH Percentage Estimates [1981- 1983] Using 1995 Construction Employment Data. Adapted from Hattisi"I) NIOSH Est. No.Exposed Reported%Using SIC Industry Description >85 dBA Hearing Protection 152 Residental builders 75,500 1 154 Nonresidental builders 66,300 15 161 Highway and street construction 60,400 11 162 Other heavy construction 90,500 44 171 Plumbing, heating,and air conditioning 52,700 16 172 Painting and paper hanging 35,100 0 173 Electrical work 74,100 0 174 Masonry,stonework,and plastering 33,500 11 175 Carpentry and floor laying 70,700 0 176 Roofing,siding,and sheet metal 22,300 3 177 Concrete work 98,500 19 179 Miscellaneous special trade contractors 74,500 35 Total 754,100 avg. 15% 77.1 AIHA Journal (63) November/December 2002 TABLE VIII. Summary of Prevalence of HPD Use According to Localization of the sound source can be very important in con- Various Studies struction. Workers need to be aware of warning signals, shouts NIOSH(NOES)(1981-1983)" from co-workers,and back-up alarms from moving vehicles.Both Highway and street construction,11% plugs and muffs degrade the ability to localize in the horizontal Carpentry and floor laying,0% plane (left-right) and muffs have a devastating effect on localiza- Plumbing,heating,and air conditioning,16% tion in the vertical plane.(34,40,41) This fact has particular implica- Overall average, 15% tions for the safety of iron workers and others who depend on Lusk et aU31) communication in the up-down dimension. Operating engineers,49% It is true that hearing loss itself degrades the ability to local- Carpenters,18% ize(42) and to perceive speech and warning signals,f341 and one of Plumberslpipefitters,32% the best ways to prevent hearing loss is the effective use of HPDs. Overall average,33% This resents a difficult paradox because one is reluctant to en- British Columbia WCB(29) 1988 1998 p p g Equipment operators 798 90% 98 erate safety problems in the effort to reduce an adverse effect on Carpenters 49% 77% both safety and health. Electricians 55% 87% The most recent noise regulation in British Columbia,which Laborers 64% 64% applies to construction as well as general industry, requires the Truck drivers 46% 73% posting of noise hazard areas when average exposure levels exceed Welders 76% 94% 85 dBA (L�q) or peak sound levels exceed 135 dBA. Employers Overall average 56% 75% must supply HPDs and workers must wear them in areas that have 'Examples from Table VII been posted.(43) This would presume that construction workers would be obliged to wear HPDs during the quiet periods and in noise levels between 80 and 90 dBA, even if they should pose a safety hazard. The regulation does state, however, that workers finishing operations,is characterized by large differences in sound must wear HPDs "in accordance with instructions provided by level and periodic interruptions at relatively low levels. Varying the employer." Hopefully, employers would see fit to allow,even noise, which is more typical of the heavy equipment noise gen- encourage workers to remove protectors when noise levels drop erated during site preparation, is characterized by ample differ- below about 85 dBA,but such flexibility on the part of both con- ences between maximum and minimum levels, but low-to-mod- tractors and workers may not be easy to achieve.Employers often erate levels in between are present for a considerable amount of have the idea that bigger is better, and seek out HPDs with the time.'36•37> Although HPDs may benefit communication during most attenuation,regardless of an employee's noise environment high noise periods,they are likely to be an impediment during the and job needs.This practice can lead to overprotection,when too periods of intermittency when noise is below 80-90 dBA,and yet much attenuation can prevent workers from hearing sounds that are necessary to their job performance and safety.HPDs with only construction workers need to communicate and hear warning sounds during these periods. mild or moderate levels of attenuation can be quite adequate,as This problem would suggest the need for HPD long as they are worn properly.s that can be The British Columbia noise regulation requires certain selec easily put on and taken off, such as muffs or semiaurals. There lion criteria for HPDs,which are based on the Canadian Standards are, however, drawbacks to both of these protectors in the con- struction environment. First, muffs are sometimes incompatible Association Standard,294.2-94,"Hearing Protectors"and its ap- pendix. These criteria include communication demands on the with hard hats and safety glasses. Some muffs can be worn with worker as well as the worker's hearing ability and daily noise ex- the headband under the chin, but this position may be awkward. posure.(43)The requirements should have the effect of encouraging Muffs that are actually attached to the helmet are a popular alter- employers not to overprotect. native,but the attenuation is not always as great as with standard In the United States the ANSI standard(S12.6)for estimating muffs because of difficulties in proper orientation and fit. The the attenuation of HPDs has recently been revised to include a temple bars of safety glasses will often break an earmuff's seal and subject-fit protocol (Method B)in addition to the traditional ex- attenuation will be reduced. Semiaurals may be useful as they are perimenter-fit method (Method A)(") Using the new subject-fit very easy to don and doff, but workers often find them uncom- procedure results in noise reduction ratings(NRRs)that are some- fortable and dislike the effects on the perception of their own what lower,but considerably more realistic than those derived by voices due to the "occlusion effect"they sometimes generate.(311) the earlier method,which is still printed on the HPD's package. Interestingly,most workers in the British Columbia program, U.S. employers should be encouraged to use the newer Method where the rate of use is highest, prefer to wear earplugs rather B values whenever available,and to understand that they are more than earmuffs or semiaurals. In 1997, 64% of the construction reflective of real-world use. In other words,employers should un- workers reported using plugs, 13% used muffs, 1% used a com- derstand that hearing protector attenuation needs to be adequate bination of plugs and muffs, and 22% used no HPD. The use of but not excessive,and that overkill is a bad idea. plugs in British Columbia has greatly increased since a previous Regardless of whether HPDs improve or interfere with the per- survey in 1981,and the use of muffs has decreased.(39) ception and identification of warning sounds in specific cases, Earplugs also have their disadvantages,aside from the fact that many construction workers believe that they will be a hindrance they require more time and effort to put on and take off than and therefore resist wearing them.A survey of carpenters'attitudes muffs or semiaurals. User-molded plugs,which have become by showed that nearly 50% believed they would be unable to hear far the most popular type of plug,require clean hands to roll down warning sounds when wearing HPDs,and an additional 17%was and insert. The dust and dirt typical of construction sites can be- unsure.(45)This problem calls not only for improved training,but come imbedded in the plug and therefore a possible hygiene an educated sensitivity on the part of those who dispense and problem. supervise the wearing of HPDs. AIHA Journal (63) November/December2002 775 Potential Solutions active noise reduction feature is activated by boosting attenuation in the low frequencies and they can also reduce the troublesome Over recent decades, certain HPDs have been developed with masking properties of low-frequency noise. As of 1989, at least speech communication and warning signal detection in mind. seven different companies had working models of active noise re- They may be classified as passive attenuators,attenuators aided by duction headsets using noise cancellation technology,(49)but that electronics,and communication systems.(For a comprehensive re- number is probably lower today. Cost is a drawback,with prices view of technology advances in HPDs,see Casali and Berger.(46)) ranging from $150 up to $1000 per set(46) Passive attenuation is characteristic of conventional plugs and It appears that there has been little laboratory or field testing muffs that do not use electronic systems.An example of a relatively of speech recognition with either type of electronically aided new passive device is the Ultra 9000 (Aearo Co. Indianapolis, muffs. These HPDs may indeed be of benefit to speech commu- Ind.), a level-dependent earmuff that uses a valve system to nication and warning signal detection, but further evaluation is achieve low levels of attenuation in low noise levels,with substan- indicated before they are relied on in situations when speech com- tial attenuation in impulsive noise conditions.(47) Although this munication is critical. muff provides somewhat less attenuation in the low frequencies Communication headsets,however,have been used successfully than in the middle and high frequencies,the slope between 500 over the years when communication at a distance is necessary.Al- and 8000 Hz is relatively flat (when worn correctly), which is though they cost anywhere from$200 to over$600,the expense desirable for speech communication. Other earmuffs without the can be more than offset by the benefits of clear and necessary level-dependent characteristic are currently being marketed for communication. Noise cancellation may be used in these devices their communication advantages.An example is the Bilsom NST as an added benefit in the reduction of low-frequency noise,as in (Bacou-Dalloz Inc.,Reading,Pa.),which has a relatively uniform the Aviation Headset X(Bose Corp.,Framingham,Mass.).Passive attenuation between 250 and 6000 Hz. attenuating muffs may be plugged into existing radio systems,or Another promising development in the passive category are the self-contained units are also available for communication at dis- ER-15 and the ER-25 plugs (Etymotic Research,Elk Grove Vil- tances of up to 2 miles. Several companies manufacture HPDs as lage, Ill.). The former provides a uniform attenuation of approx- communication headsets, with NRRs ranging from 21 to 29 imately 15 dB throughout nearly the entire frequency range,and dB.(so) the latter 25 dB of attenuation,although it rolls off slightly in the With the passage of the Americans with Disabilities Act in low frequencies.According to Killion et al.,(48)the acoustics of the 1990, it is within reason to speculate that employers, including ER-15 plug were developed to mirror the natural response of the construction contractors,may need to provide workers who have open ear while providing some amount of attenuation. It has be- hearing losses with HPDs that are suited to their communication come known as the"musician's earplug"because of its popularity needs,both in terms of spoken communication and the perception among musicians,who require spectral "fidelity." Because its of- of warning signals.(s') ficial NRR is only 7 dB,it is not appropriate for all occupational Clearly, the only practical, long-term solution to the many uses. The ER-25, however, does provide more attenuation,with problems of hearing protector use in construction is noise control, an NRR of 16. The major drawback to these HPDs is that they both in the design and manufacture of construction equipment must be custom molded to the user's ear,which adds considerably and at the construction work site. to the cost. There are some conventional earplugs that attempt to achieve a flat attenuation at much lower cost. For example,Aearo's Ul- AUDIOMETRIC MONITORING/ tratech plugs, with NRRs of 12 or 16 dB, are premolded plugs RECORD KEEPING that have a slope of only 10 dB between 125 and 8000 Hz when worn correctly. Even though the NRRs of these devices are not /� udiometric testing is of little value unless serial audiograms can as impressive as the 25-to-30 dB of many other HPDs,their at be compared,threshold shifts detected,and measures taken to tenuation would be sufficient for many construction activities,as halt the progression of noise-induced hearing loss. Single audio- long as they are inserted and worn properly. grams may indicate hearing loss,but unless a series of audiograms There are two types of earmuffs that employ electronics. One imply an occupational cause,the process is only one of documen- uses noise cancellation to achieve attenuation.The other uses am- tation rather than conservation of hearing. plification to permit the passage of low and moderate levels of sound, maintaining a constant level at the ear. It then acts as a Barriers to Successful Audiometric Monitoring and Record Keeping passive attenuator at high levels. An example of the latter is the There are several reasons why meaningful audiometric testing and Peltor Tactical 7-S (Aearo Co., Indianapolis, Ind.). This type of the proper keeping of records are difficult in the construction in- HPD offers promise of protection against high-level impulses su- dustry. These include (1) mobility of construction workers, (2) perimposed against a background of relative quiet.(-) the temporary and seasonal nature of employment, (3) the small Noise canceling earmuffs use electronics to generate an "an- size of construction companies, and (4) the prevalence of self- tinoise" signal that reduces incoming noise levels by 20 dB or so employment. in the low frequencies. An example of this HPD would be the The Center for the Protection of Workers Rights has compiled ProActive 3000 muff (Noise Cancellation Technologies Inc., a substantial amount of information about the construction in- Stamford, Conn.),with an NRR of 21 dB assessed in the passive dustry and its workers from the Bureau of Labor Statistics, the mode.These devices are useful mainly in environments character- Bureau of the Census, and other sources, which can illuminate ized by high levels of low-frequency noise,where C-weighted lev- these issues.(12) els exceed A-weighted levels by at least 10 dB. Because the elec- Mobility. Depending on the size and nature of the project, tronics take up considerable room in the earcup, they cannot construction workers may work for one company for only a mat- achieve as much passive attenuation as certain other protectors. ter of weeks or months, or up to many years. The average du- However, they can produce a flatter attenuation curve when the ration,however,is less than in the manufacturing industries.Job 776 AIHA Journal (63) November/December 2002 tenure in construction also depends on whether an employee compliance with the regulations is fairly good in heavy construc- belongs to a union. In 1993 the median job tenure in construc- tion, commercial building, and road construction, but poorer in tion for union employees was 5 years and for nonunion employ- housing construction and among small-business contractors ees, 3 years.(12,°'""20b) However,nearly 80%of construction em- (which is not surprising). Also, because the regulation requires ployees are not unionized.(s2,°ha«'4a) hearing tests "not later than 6 months after the start of employ- Temporary and Seasonal Nature of Employment.Temporary un- ment,"( 13.116)workers on short jobs are likely to be overlooked. employment is common among construction workers, and sea- European Programs. Bygghalsan, the Swedish Foundation for sonal breaks are particularly common in the northern states. Un- Industrial Safety and Health in the Construction Industry, was employment ranges from 5 to 10%higher in construction than in founded in 1968.Its support was generated by assessing contractors the general population(52,�hn 20c)and the rate of failure in construc- for fees based on hours worked, and, like the British Columbia tion companies has been consistently greater than in other indus- program, provided a central repository for hearing test data and I tries as a whole.(-12,ch—1.) other types of information. Its activities in recent years have been Small Size of Construction Companies.Small businesses are less severely curtailed because of government cutbacks. The CPWR likely to conduct audiometric testing,and those with 10 employees Chart Book, however, does contain data showing the decreased or fewer are generally exempt from record-keeping requirements, prevalence of"severe high-tone hearing loss"in Swedish construc- Nearly 82/0 of construction establishments have less than 10 em- tion workers between 1971-1974 and 1986-1990,(52,chart 40,) ployees and less than 1%have more than 100 employees.(52,cnans�) ' In Germany, Arbeitsmedizinischer Dienst, state-run occupa- Prevalence of Self-Employment. Construction workers who are tional health centers assist small companies with audiometric test- self-employed are less likely to be part of an employer's safety and ing and the retention of audiometric records.(54) health program,and are unlikely to have their own hearing tested. Requirements of Other OSHA Regulations.Welch and Roto ss) About 2 million of the estimated 5 million construction workers report that of the 21 OSHA regulations requiring medical mon- list themselves as self-employed, and 75% of these are unincor porated.(52,p,9,21) itoring, 13 apply to construction. Both lead and asbestos have their own construction versions, although lead is, at this time, a Potential Solutions final interim rule. The lead standard, 29 CFR 1926.62, requires Centralized Systems a full medical examination when blood-lead or air sampling levels exceed certain criteria.The asbestos standard,29 CFR 1926.1101, British Columbia. The most successful HCP for construction requires medical monitoring for all employees who are exposed workers is the program conducted by the Worker Compensation above the PEL or an "excursion limit" for a combined total of Board(WCB)of British Columbia.One measure of its success can 30 days or more per year.A medical exam must be given at least be seen in the better-than-expected hearing threshold levels of annually. It should include pulmonary function tests and may in- construction workers and the improvements between the thresh- clude a chest X-ray at the discretion of the physician.An exam is olds in 1988 and those measured in 1997.The examples given in not required if records show that an employee has been examined Figures 5 and 6 are representative of all of the trades measured.(29) within the past year. This program has the advantage of being centralized in the WCB, The general industry regulation for hazardous waste opera- which is supported from fees taken out of the worker compensa- tions,29 CFR 1910.120,also requires medical examinations,and tion premiums of British Columbia employers. the revised respirator standard,1910.134,requires physician clear- The program has been in effect for construction workers since ante for workers to wear continuous-flow respirators.These stan- 1987,when audiometric tests were initiated,and since then tests dards also apply to construction. have been conducted annually.An updated noise regulation spec- Employers,including construction contractors,are required to ifies a PEL of 85 dBA, a 3-dB exchange rate, a peak sound level ensure that these tests are performed and must a for them.T limit of 135 dBA, and engineering controls above these limits p pay The problem is that the many complex characteristics of construction whenever practicable.(43) Noise exposure monitoring and training mentioned above(mobility,seasonal and short-term nature of the and education are required at an action level of 0.5 (an L,of 82 cork, prevalence of self-employment, etc.)work against efficient dBA),but these latter requirements are not rigorously enforced in the construction industry!") medical monitoring programs, especially the keeping of records. OSHA's record-keeping rules,which have the same provisions for The WCB trains and certifies all technicians, who then pro vide audiometric testing, training, and counseling to construc- construction as for general industry, limit the requirements for tion workers.Audiometric information,including a medical his- tory,is collected by the technicians on an optical-read form and ployees,except in cases of fatalities or multiple hospitalization ac- scanned onto a WCB mainframe.In addition,workers carry with cidents. Clearly,great numbers of construction workers are falling them a "WorkSafe" card,which contains a record of their hear- through the cracks. ing test, the date of the test,and boxes in which the technician Even for those companies that would be responsible for keep- may check whether the worker has received an explanation of the ing records of medical monitoring, the question remains as to results, a fit test of hearing protection, or whether the require- what to do when employees move on.The construction regulation ment to wear HPDs has been discussed. Workers are advised to for access to medical records(29 CFR 1926.33),which is identical show the card at the next test in one year. The regulation re- to the general industry regulation (29 CFR 1910.1020), states quires also that the employer maintain, "in a manner acceptable that employers need not retain records after an employee's ter- to the board,"(­­ 13.120) a record of the hearing tests for each mination, but may simply give the records to the employee,pro- worker as long as the worker is employed by that employer.(43) vided that the employee has not worked there for more than 1 Information about noise control and other aspects of hearing year. conservation is made available to employers through a WCB news- But the question of effective follow-up remains open,especially letter as well as through the technicians. Roberts(53)reports that in the case of audiometric testing,which is so dependent on the AIHA Journal (63) November/December 2002 777 comparison of serial audiograms. There appears to be little expe- epidemiological purposes,but in some cases for individual follow- rience with effective records management for construction em- up.In New York,for example,all blood lead levels are sent to the ployees for any health hazard outside of British Columbia. The State Department of Health and high levels can trigger follow-up one exception may be joint labor-management programs. phone calls to lead-exposed individuals.(58)In addition,some states Joint Programs.Several of the unions whose members perform have cancer or silicosis registries. construction work have negotiated medical monitoring, testing, Although a state-run program is likely to be the most efficient and training programs through the collective bargaining process. solution for HCP elements such as audiometric testing and record Examples of these are ironworkers,painters, carpenters,laborers, keeping, these programs are always susceptible to the whims of and sheet metal workers.All of these unions have centralized funds state legislatures or federal funding sources. The perfect solution used mainly for training,but that also pay for some medical test- is elusive. ing,such as asbestos exams,lead,and clearance for working with Credit-Card Type Storage Devices hazardous waste.056> A good example of this type of program is the MOST (Mo- Contemporary technology could make the problem of construc- bilization Optimization,Stabilization,and Training)program run tion worker mobility somewhat more tractable.These devices,like by the boilermakers union.(57)The program covers drug,pulmo- optical cards, may be carried in one's wallet and are capable of nary function, and respirator fit testing, as well as safety glasses storing considerable amounts of information. Evidently they are and safety training for some 20,000 boilermakers at this time,and already being used for documenting safety training.According to it will soon involve 26,000 construction workers in Michigan.In Stephenson,(59)any audiometer that can communicate with a per- addition,it is now open to all crafts in the nation.One of its most sonal computer(which is a great many audiometers nowadays)can interesting aspects is the Employee Verification System,the ability handle these devices.All that is needed is the appropriate software of employers to call in to the program headquarters and obtain and a special drive.NIOSH has this capability at this time. information on pulmonary function levels,as well as the dates on An example of the effective use of these "smart" cards is the which all testing and training occurred. The program used to in- program that allows travelers to cross the U.S./Canadian border clude full medical exams, including audiometric testing,but that by inserting a card encoded with the individual's fingerprint into segment was discontinued due to expense. an optical reader. According to a press release issued by Canon Unfortunately,there is no evidence in the United States of joint USA in 1995,these cards can store the equivalent of 1600 pages labor-management programs for construction workers that in- of text or other digital data, and they are already widely used in clude audiometric testing and record keeping. the health care field as a portable clinical record.(60)No doubt the Even though these joint programs may be very successful,there technology has advanced considerably since then. are two principle disadvantages. First,union members are under- standably reluctant to pay for medical monitoring and training when OSHA regulations have mandated these as employer re- NOISE, HEARING LOSS, AND ACCIDENTS IN sponsibilities. Even though it is actually the employer who pays, CONSTRUCTION workers may be reluctant to use collective bargaining to achieve benefits that are their right by law.The second and most obvious Accidents in Construction disadvantage is that 80% of the construction work force is not organized and therefore would not benefit from this type of Traditionally there has been a high rate of occupational injuries in arrangement. the construction industry. Sweeney and her colleagues collected There is no reason, however, why contractors could not pay the following data from the Bureau of Labor Statistics and various into a fund for purposes of medical monitoring,including audio- other sources:(61)Construction workers represent 6.5%of the work metric testing and record keeping,which would be managed by a force, but 18% of the fatal injuries occur in construction. After public or private agency.This fund would then cover all construc- mining and agriculture,construction ranks third for workplace fa- tion workers,whether or not they were unionized. talities and injuries. The leading causes of construction fatalities State-Run Programs. There are,in fact, some states that have include falls (31%) and transportation incidents (27%). Contact adopted OSHA's hearing conservation amendment for construc- with or being struck by an object and musculoskeletal disorders tion workers.For example,the State of Washington's Department account for more than 50%of all traumatic injuries.Construction of Labor and Industry is divided into a worker compensation sec- Workers are twice as likely as the average worker to be killed by a tion and an occupational safety and health section,the latter hav- motor vehicle, and 40% of worker fatalities from motor vehicle ing jurisdiction over noise regulations. However, there has been accidents are pedestrians. Nearly 2000 machine-related deaths in virtually no enforcement or compliance with the construction construction occurred between 1980 and 1992 and in nearly one- noise standard, so merely adopting the federal hearing conserva- third of the cases the worker was struck by a moving mobile ma- tion standard for construction workers is not necessarily the an- chine.Laborers(23.5%)and operating engineers(22.6%)account- swer unless the state is willing and able to enforce it. ed for nearly half of the machine-related deaths. It appears that the best solution would be a program like that possible Contribution of Noise and Hearing Loss of the WCB. Here,a centralized agency,in this case the WCB of the Province of British Columbia,not only keeps the records but There is little objective information linking noise exposure or hear- trains the technicians,ensures follow-up,and provides quality con- ing loss with accidents specific to construction,but common sense trol. This function could be carried out within the United States would suggest that many of these accidents might have been pre- by state agencies,such as health departments. vented had workers been able to perceive warning shouts or sig- There is a program called the Adult Blood Lead Surveillance nals.The high incidence of fatalities from being struck by objects, program,funded by NIOSH and the Centers for Disease Control of transportation incidents, and the frequency of fatal accidents and Prevention, in which 26 states keep a register of the effects from moving machines (especially with pedestrians as victims)all of lead and other heavy metals. These data are generally used for suggest a breakdown in communication. 778 AIHA Journal (63) November/December 2002 Noise and hearing loss have been implicated in studies of other Laroche and Lefebvre 167)reported that placement of the back- industries. For example,noise and hearing loss were found to be up alarm is often problematical. For example,some owners posi- accountable for 43% of the injuries in a shipyard setting.(62)The tion the alarm underneath the vehicle to protect it against weather, authors considered other possible causes, such as alcohol con- which placement has an attenuating effect. With regard to defi- sumption,cigarette smoking,and the use of earplugs, and found cient acoustic features, the authors found that most back-up that alcohol consumption was the only significant factor besides alarms produce pure-tone signals around 1400 Hz or modulations noise and hearing loss. It appears that the authors controlled for of two neighboring sounds, 1250 and 1350 Hz. Reflections of age and job hazard. these sound waves on the ground or diffraction by the sides of Zwerling et al.�63>assessed the likelihood of occupational inju- vehicles have the effect of reducing or even canceling them before ties in a large sample of workers drawn from the National Health reaching the listener.Within spaces of less than a few inches,Lar- Interview Survey. These workers had listed themselves as having oche and Lefebvre found variations in sound pressure level of some kind of preexisting impairment: visual or hearing impair- more than 15 dB behind vehicles. Finally, the use of a pure tone ment, back conditions, upper or lower extremity conditions,dia- in the 1500-3000 Hz range is not efficient for purposes of au- betes, epilepsy, and arthritis. The authors found that the highest ditory localization.(69) risk of job-related injuries came from workers having sensory im- There are several reasonable solutions to these problems.First pairments with odds ratios for blindness of 3.21, deafness 2.19, would be to prevent hearing loss through noise control, the ju- hearing impairment 1.55,and visual impairment 1.37(which was dicial use of HPDs,and training.Second,noise levels on the con- not statistically significant). Of the seven occupational groups struction site should be reduced through the manufacture and studied, laborers represented about 8% of the total cohort, and purchase of quieter equipment and the proper maintenance of all approximately 36,000 in this group (13%) were construction la- noise-producing equipment. Third,workers should be trained in borers.(64)The remainder of the group included material handlers, the awareness of warning signals as well as all aspects of hearing as well as operators of various kinds of vehicles and equipment, conservation.Fourth,back-up alarms should be placed for optimal some of whom might also be considered construction workers. reception by the intended listener. Fifth,greater attention should The category titled laborers was one of three blue-collar catego- be given to the workers' sound environment and sound propa- ries,the others being mechanics/repairers,and operators/assem- gation in the design of the alarm, as well as the psychoacoustics blers.The odds ratio for injury among laborers was 4.16,the high- of audition. Laroche and Lefebvre(67)caution that back-up alarms est of any of the groups. should not emit just one pure tone because of the considerable Another study of a large industrial population compiled acci- risk of sound cancellation,but instead should produce several fre- dent data from factories over a 2-year period.(65) The authors quencies in the 500 to 2000 Hz range that are not harmonically found that the frequency of accidents and illness-related absences related. increased with increasing noise exposure levels for both men and In optimal conditions the sound level of an alarm should ex- women. The relationship between noise exposure and accidents teed the background noise by 10-15 dB. However,this can pose was significant for men but not for women. Unfortunately,it can a problem to the residents neighboring construction sites, who be very difficult to control for the hazardous nature of various often complain about the noise of back-up alarms. A partial so- jobs in this kind of study,and it is possible that high levels of noise lution could be found in the form of an auto-adjusting alarm, may be related to jobs that are inherently hazardous. which senses noise in the environment and adjusts its signal to a level 10 dB above that of the background noise. An example is Reverse Alarms the Starmatic 63-000 (Star Warning Systems Co., Avon, N.Y.), an auto-adjusting back-up alarm,with a range of 87-112 dB. In recent years there has been some attention to the questionable One final recommendation came from a safety workshop at- effectiveness of back-up alarms in mobile machinery.A study by tended by laborers, and that is that personnel backing heavy ve- Laroche et aL166) demonstrated that the audibility of back-up hicles should use an additional worker as a "spotter."(56) This alarms on dump trucks is compromised because of the ineffec- worker is presumably in a place where the operator can see him tiveness of their acoustic signals. Laroche and Lefebvre(67)traced or her, and it is important that the worker is trained and alert 22 fatalities to faulty back-up alarms in the Province of Quebec because Laroche and her colleagues found that the "signalman" over a 15-year period. Table IX provides an updated version of was sometimes the one who was fatally hit.(66, these data,giving the cause of each accident and comments about noise levels and the back-up alarm specific to each situation.(68) Laroche and Lefebvre(67) concluded that there are at least five NOISE CONTROL IN CONSTRUCTION principle causes for these types of accidents: (1) hearing loss among construction workers, (2)high noise levels on some sites, here is a considerable amount of information available on the (3) worker attentional demand or complacency, (4) inadequate control of noise in the various aspects of construction, and a placement of alarms, and (5) deficient acoustic features of the detailed discussion of this topic is beyond the scope of this report. alarms. A brief overview, however, would be useful. Noise control solu- The adverse effect of hearing loss should be self-evident, as tions include the efficient operation and maintenance of construc- with high noise levels,because they both would degrade the ability tion equipment,retrofit of existing equipment,and the design of to perceive back-up alarms as well as warning shouts.Worker at- quieter new equipment. tentional demand from complex tasks or stimuli could cause the Feasibility failure not so much to hear but to attend to the warnings pro- duced by back-up alarms(see review of this subject by Suter,Ref. It appears that noise reduction in most construction sites and for 34, Chapter 4). Inattention caused by habituation also could re- most construction equipment is feasible.Although some tools will duce the ability to react appropriately to the sound of warning still require the use of HPDs for adequate protection, there is a alarms. great deal that can be done. Figure 7,from the Bureau of Mines, AIHA Journal (63) November/December 2002 779 TABLE IX. Deadly Accidents Involving Heavy Vehicles and Noise (After Laroche et al.;lfi'I Updated, Expanded Version Translated into English Provided by Laroche)")) Case Date of No. Accident Employee Vehicle Involved Cause of Accident Comments 1 08-29-91 tow truck noise level exceeded alarm 2 06-02-88 splitter/operator forklift poor visibility, plus (aluminum co.) backup alarm not detected 3 04-28-88 water system installer dump truck(?) backup alarm not poor synchronization of detected maneuvers 4 09-04-87 flag person dump truck backup alarm not alarm: 90 dBA; noise (construction site) (10 wheeler) detected from streamroller:87 backup alarm: DAP dBA 5 07-01-87 quality control attendant dump truck backup alarm not backup alarm in front of (construction site) (10 wheeler) detected the 2 back axles and Kenworth 1974 directed toward the left. alarm : 80-85 dBA; noise: 105-107 dBA 6 01-09-87 flag person dump truck misjudgment by worker alarm level greater than (construction site) (10 wheeler) noise levels 7 08-08-86 marine docker forklift backup alarm not noise: 84-96 dBA; detected,plus alarm: +2 dBA driver's vision obstructed 8 08-15-85 flag person(road 5-ton truck backup backup alarm not noise: 92 dBA; repair) alarm: DAP 50 detected,plus poor alarm: 75 dBA planning of operations 9 11-21-83 shipping and receiving delivery truck noise from truck was high noise level because clerk(interior site of not detected of construction a pharmaceutical co.) 10 10-06-82 loaded dump truck, poor judgment or noise Mack 76 level same as alarm (10 wheeler) (28,800 kg) 11 09-24-82 docker(port) road hauler noise from hauler was high noise level, poor not detected lighting;one-way circulation 12 09-17-82 10 wheeler dump alarm was not truck functioning,high noise level 13 01-20-82 general foreman loaded cement mixer backup alarm not alarm: 83 dBA at 1 ft (James Bay site) (82,000 kg) detected noise: 107 dBA at 3 ft 14 11-23-81 welder(railroad) grinder, LORAM horn was not detected horn: 97 dBA welding noise: 90.5 dBA 15 08-10-81 loader lack of good work method, no backup alarm 16 12-06-78 garbage collector garbage truck backup alarm or noise surrounding noise assistant not detected(?) greater than truck noise 17 08-21-78 flag person (road dump truck backup alarm not noise level greater than repair) (10 wheeler) detected alarm Ford 8000 18 01-08-76 digger operator(Miron) dump truck noise from truck was no backup alarm (8 wheeler) not detected (10 tons) 19 12-29-75 flag person(snow leveler noise from leveler was no backup alarm removal) not detected 20 07-08-75 flag person(steel works dump truck(19 tons) noise from truck was worker was walking with site) not detected his back to the truck 21 08-14-75 crane operator platform type noise from truck was no backup alarm tow truck not detected 780 AIHA Journal (63) November/December 2002 TABLE IX. Continued Case Date of No. Accident Employee Vehicle Involved Cause of Accident Comments 22 07-08-75 truck driver(road dump truck(7 tons) noise from truck was high noise level repair) not detected,also subject was very close to the back of the truck 23 03-18-75 pedestrian dump truck noise from truck was high noise level, no (construction site) not detected backup alarm 24 03-12-75 engineer(road loader(2.5 tons) noise from loader was high noise level excavation) not detected gives examples of how noise control could be applied to surface includes keeping noisy operations away from workers who are not mining machines, several of which are used in construction.(70) involved in that process, lubricating parts, keeping saw blades Note the dramatic reductions achieved in haulage trucks, front- sharpened,and replacing worn bearings and other parts as needed. end loaders,and graders.Although some of these noise problems It also involves keeping the doors and windows of noisy vehicles may have been mitigated in contemporary equipment,undoubt- closed to the extent possible to protect the operator from the edly many have not yet been sufficiently quieted. engine and exhaust noise. Like any vulnerable part,noise control measures,such as gaskets and mufflers,need to be maintained and Maintenance replaced when necessary to provide the desired attenuation. One of the least expensive and most rewarding noise control prat- Retrofit tices is the proper operation and maintenance of equipment.This Retrofit applications, such as those advocated in the Bureau of Mines Handbook'(70)include installing mufflers,enclosing and in- SURFACE MINING EQUIPMENT INDEX sulating the cabs of noisy vehicles, and enclosing parts of noisy machines.Table X,from Schneider et al.t511 lists types of construc- Typieal worker exposure, dBA lion equipment and suggested retrofit controls. The authors give 70 80 90 100 110 120 references for each control measure. For example, they cite a re- port by the Society of Automotive Engineers, which found that changing from an inadequate to a better muffler could make a difference of 1-3 dB,and installing a muffler where one had been Diesel-powered rotary drills.- lacking could make a difference of 10-12 dB.t711 There may be times when retrofits yield only small improve- Electrically driven rotary drills.... ments in noise level and HPDs are still necessary to prevent hear- ing loss.Researchers at the Mine Safety and Health Administration hear- Machine-Mounted percussion........ found that retrofit controls tend to reduce high-frequency noise dries(surface) Crawler tractors.. more readily than low-frequency noise, often resulting in differ- K low... "" ences between C-weighted and A-weighted noise levels that ex- Electric shovels and draglines... teed the nonretrofit condition,even though A-weighted levels had been reduced J72)Although this finding should not discourage the Diesel-powered draglines,cranes... use of retrofit measures, it does provide additional support for shovels,and hydraulic excavators choosing HPDs with good low-frequency attenuation and careful Haulage trucks.......................... training in their effective use. Scrapers...........__...................... Design ,_ D The most efficient and economical stage at which to control noise Front-end loaders........................ is in the design phase. This is true both in the design of a poten- Graders.................................... tially noisy work space and in the design of equipment. For ex- Coal augers............................... >,,. ample, changes in the pathways of ductwork can reduce fan noise'(71)and changing low-frequency jet noise to high-frequency can make it easier to control t741 At an Environmental Protection Agency(EPA) hearing many 70 80 90 100 110 120 years ago,George Diehl,an acoustical engineer with the Ingersoll- Rand Co. (Woodcliff Lake, N.J.), reported on a "whisperized" Quieted Unquieted air compressor, in which the noise level had been reduced from 110 dBA to 85 dBA.(7-1)At that time the company was also work- FIGURE 7. Examples of how noise control may be applied to ing on noise from rock drills (pavement breakers and jackham- surface mining equipment, some of which is used in mers), and had reduced the noise between 8 and 10 dB, while construction. Reprinted from Bartholomae and Parker,1*1 U.S. Bureau of Mines publication. simultaneously reducing vibration. Mr. Diehl also discussed an- other type of demolition tool called a "hobgoblin," which was ANA Journal (63) November/December2002 781 TABLE X. Noise Controls for Construction Equipment (from Schneider et al.01) Equipment Noise Controls Pile driver Enclosure,muffler Stone cutting saw Noise control pad with water Handheld impact drills Reduction of reflected sound Circular saw blades 15°tooth angle,new tooth configuration,slotted saw blades,viscoelastic damping Pneumatic tools Muffler Pavement breaker/Rock drill Muffler,enclosure of cylinder case and front head,moil damping Portable air compressor Muffler,acoustic enclosures Bulldozer Cab-liner material,enclosure,sound absorption in canopy,sealing of all openings Wheeled loader Absorption of sound cooling air route Vibratory roller Flexible mounting for pump compartment Joint cutter Antivibration mounting fixtures mounted on a backhoe. Because it was hydraulically operated it the Swedish Work Environment Fund,translated,then edited and had no air exhaust, and therefore,the major source of noise was adapted by OSHA. reduced. He reported that it could do the work of 10 to 24 reg- "Noise Control: Principles and Practice," published in Noise ular paving breakers while producing considerably less noise.(75)It News International between June 1994 and June 1999, form a appears that this kind of push for the control of construction noise series of 15 articles by Stig Ingemansson, the original author of in the United States has diminished, but it continues to progress the Swedish guide previously cited.(80) The articles represent an in Europe. edited and updated version of the older guide. There is, however, an interesting innovation being developed Many papers and articles on noise control,some of which deal called the Raptor (Brookhaven National Laboratory, Upton, with construction,are available in the publications of the Institute N.Y.), a machine that fractures concrete by firing steel nails from of Noise Control Engineering,which has headquarters in Pough- silencer-equipped guns. It is reported to work more rapidly than keepsie, N.Y. These include Noise Control Engineering Journal, the conventional jackhammer,does not rely on an air compressor, Noise News International, and the proceedings of annual confer- and the noise level is projected to be below 80 dB.!76) cries,both U.S. and international. Resources In addition to the preceding suggestions,there are other pub- lications, such as those cited by Neitzel and Seixas:(15)Alfredson There are many such reports on noise control solutions in the and May,iS1>Kessler,(82)and Mulholland and Attenborough.(81) construction industry.Some of them are consolidated in booklets or a series of articles.In addition to the sources cited by Schneider EPA et al.,�11)the following are some examples. Mining Machinery Noise Control Guidelines, 1983,a Bureau of The Office of Noise Abatement in the U.S. EPA, which func- Mines Handbook.(70)This publication contains information on the tioned between 1972 and 1982, made significant efforts to con- noise levels of surface and underground mining equipment,some trol noise in the general environment, including construction of which is used in construction,particularly in the site preparation noise. Funding for the program was terminated in 1982 by the phase of large construction projects. For each piece of equipment Reagan administration, and the office was closed. However, the the booklet lists typical noise levels, along with recommended statutory requirements still stand because Congress has never re- treatments,quieted noise levels,costs in dollars and labor in hours, scinded them:the Noise Control Act of 1972 and the Quiet Com- and the availability of treatments. These descriptions include munity Act of 1988 (P.L. 92-574, 1972 as amended at U.S.C. sources for commercially available noise control products and ma- 4901-4918, 1988). terials, technical reports on the development and demonstration Of interest in the area of construction are the regulations for of noise control treatments,and case histories. medium- and heavy-duty trucks,air compressors,and regulations Noise Control,Proceedings:Bureau of Mines Technology Transfer for the existing motor carrier fleet. These regulations are still in Seminars.(77) This book of proceedings contains specific articles covering some of the same types of information as above, with effect but are not being enforced. Two pieces of construction equipment,pavement breakers and rock drills,were identified as more text. Constructional Noise: A Surve o Noise on Building Sites major sources of noise and set on the path toward regulation,but BygghAsan,Stockholml781 This b okl t gives octave band and A� Were"disidentified"when the program closed in 1982.The agen weighted noise measurement data for more than 30 examples of cY also considered the regulation of wheel and crawler tractor construction noise sources, along with information on the work noise emission. The Noise Control Act required EPA to regulate operation,cause of the noise,and suggested control measures for the labeling of products that emitted or reduced noise, but EPA each type of equipment or setting.Although these data are more only promulgated one regulation in this category,the attenuation than 25 years old, many are undoubtedly still applicable. It in- of HPDs. cludes comments about controls and the need for hearing A considerable amount of information about construction protection. noise was generated by the agency,most ofwhich is listed in EPA's Noise Control.A Guide for Workers and Employers, U.S. De- Bibliography of Noise Publications.84 Some titles pertaining to partment of Labor.(79) Although this guide pertains to general construction noise are listed in Appendix A.In addition,EPA has noise problems and their solutions,some of the principles of noise microfilmed much of the materials from the Office of Noise control also apply to construction. It was originally published by Abatement,and many of its contractor reports are still obtainable. 782 ANA Journal (63) November/December 2002 EUROPEAN STANDARDS AND DIRECTIVES or"to the lowest level reasonably practicable,taking account of technical progress and the availability of measures to control the noise,in particular at source."(arrid,5-1)This means that employers Activities of the European Community must reduce noise to levels below 90 dBA whenever"reasonably Undoubtedly the most interesting developments in noise stan- practicable."('«'°'° 5-2) Other measures, such as information and dards and regulations are currently occurring in the European training, the provision of HPDs, and hearing testing must be Community (EC), now known as the European Union (EU). instituted at an L, of 85 dBA. Those countries comprising the With the economic unification of European countries, the effort EC were required to have regulations that conformed to the to harmonize existing standards and to develop a unified approach CEC directive,or were at least as stringent,by January 1, 1990. to new standards has been taking place for nearly two decades. Article 8 of the directive states that the design, building, and/ There are now a great many European standards and directives in or construction of new plants must comply with the 90-dBA the field of noise measurement, effects, permissible limits, and exposure limit, and tools or machines that expose workers to control,including some that are specific to construction. daily average levels greater than 85 dBA must provide adequate Although publications in this area tend to use the terms"stan- information "about the noise produced in conditions of use to dard" and "directive" interchangeably, the word "standard" is be specified." usually applied to measurement procedures or proposals set for- ward by consensus groups such as the International Organization Machinery Directive for Standardization (ISO) or the International Electrotechnical In 1989 the CEC issued the Machinery Directive,under the pro- Commission (IEC). The term "directive" usually applies to an cedures of the new approach.(88)This directive,89/392/EEC,re- order issued by the Council of the European Community(CEC), quires manufacturers of a wide variety of machines, including and this order is generally mandatory for implementation by the many that are used in construction, to make noise reduction an member states of the EU. integral part of machinery design by implementing state-of-the art The EU speaks in terms of the "old approach" and the"new design methods.05> Manufacturers must include information on approach" to the issuance of directives. The old approach,taken noise levels when any machinery exceeds exposure levels of 70 prior to 1985,applied to one product at a time and was very time- dBA or 130 dBC at the operator's work station, or when sound consuming. The new approach resembles enabling legislation,in power levels exceed 85 dBA.01B) Both the sound pressure and that these directives apply to broad categories of products.Under sound power level information are to be based on durations rep- the new approach, the CEN prepares nonmandatory technical resentative of the typical work-cycle of the machine. Noise emis- specifications, the purpose of which is to assist manufacturers in sion information must be included in the instruction handbook of the design of products so that these products will meet mandatory the machine (for the user's benefit) and in the technical infor- directives.Although the new approach was followed for directives mation describing the machine (for the benefit of the purchaser.) issued in 1985 and thereafter, directives issued under the old ap- Since the promulgation of the machinery directive,several safe- proach still apply. Some of the old approach directives are being ty standards have been issued specific to certain machines. These revised, and some new directives are still being issued under the standards contain a description of the hazard the safety objectives old approach."') to be achieved,measures for reducing the hazards, test methods Construction Directives to establish compliance, and user information. Lazarus and Zim- merman(89) present a discussion of these standards, along with One of the earliest directives issued by the EC specified measure- some of their limitations. ment methods for determining the A-weighted sound power levels Draft standard EN 1746 gives the noise provisions that should of construction plants and equipment(R6) This directive was fol- be included in machine safety standards: the identification of a lowed in 1984 by several specific directives,("') which stipulated machine's main noise sources;reference to principles of low-noise measurement methods and permissible sound power levels for air design, along with examples of design for noise control; a com- compressors..(84/553/EEC; 85/406/EEC), tower cranes (84/ pilation of ranges of noise emission values;and the development 84/534/EEC), welding generators (84/553/EEC; 85/407/ of information necessary for user instructions to allow for low- EEC), power generators (84/536/EEC; 85/408/EEC), and noise operation. The authors report that the majority of"frame- concrete breakers and picks (84/537/EEC; 85/409/EEC). In work"standards necessary for the preparation of machine-specific 1986 the EC issued a directive on hydraulic and rope-operated safety standards already exist for noise, but they need to be de- excavators,dozers,loaders,and excavator-loaders(86/662/EEC; veloped further and adapted to the practical problems of manu- 89/514/EEC). Several of these directives have been revised(in- facturers and operators.For example,typical operating conditions dicated by the second date).Tables 3-8 in Ref.85 present a sum- still need to be agreed on and differences between the conditions mary of the sound power level limit values for the construction specified in the standards and actual use need to be resolved.089> equipment listed above.The permissible sound power levels range from 100 dBA to 118 dBA,depending on size,weight,and type Labeling of equipment. (One needs to keep in mind that the sound power Another interesting provision of the machinery directive is its re- level can be some 25 dB greater than the sound pressure level at quirement for compliant machinery to carry the "CE" mark.An the operator's position.) amendment to the machinery directive gives the form in which 1986 Directive to Protect Workers Against Noise the CE mark is to be displayed (93/68/EEC). In addition,the construction noise directive(79/113/EEC)requires manufactur- In 1956 the CEC issued directive 86/188/EEC "on the pro- ers to display labels in the form of plates showing either the sound tection of workers from the risks related to exposure to noise at power level (L,) or sound pressure level (Lp,,) at the operator's work."�87) This directive required all employers to reduce TWA position.The specifications for these labels are shown in Figure 8. noise exposure levels (using the 3-dB exchange rate)to 90 dBA There is an ISO standard pertaining to the noise labeling of ANA Journal (63) November/December 2002 783 remember, however, that the operating mode means under load but not necessarily in actual working conditions,as in the case of a tool contacting a work piece. Evaluation of Noise Limits and Labeling Requirements LThe success of these programs is bound to be variable because enforcement of the EC directives is carried out by the individual s _ member states,some of which are likely to be more zealous than others.Also,the problems raised above by Lazarus and Zimmer- man have been mentioned by other researchers. Kyttala and s Airo(92) found that although a majority of the hand-held power tools they surveyed carried noise declarations(labels),the authors questioned whether the information provided would apply to the ' 104 tools as they were being used.They found that the declared noise levels were usually lower and sometimes considerably lower than p those measured in actual use. � Irmer and Fischer-Sheikh A1i(93) pointed out that the primary „ purpose of the machinery noise directives was to enhance the func- tioning of the common market by eliminating trade barriers.Thus, noise limits were set high enough so that very few products would be excluded from the market.They maintain that setting an easily achieved upper limit for construction equipment removes any j pressure to produce products with lower noise emission levels. LpA They do mention,however,that the EC has recently published a ■ proposal on the noise emission of equipment used outdoors, s _ which will replace existing directives and revise existing noise limits in such a way as to give a higher priority to environmental con- cerns like construction noise.(93,94) INCENTIVES FOR QUIET Disincentives of the Last Two Decades E n f +� With the demise of EPA's Office of Noise Abatement in 1982 and along with it the regulatory program for construction equipment, the incentive for noise control has declined.This is true of equip- ment manufacturers as well as contractors. Some small incentive FIGURE 8. Models of plates showing the sound power level has been supplied by municipalities and local groups seeking to (L,,,) and sound pressure levels (L,,)at the operator's position mitigate the noise exposure of communities,but the noise abate- required by the European Community's construction noise ment capabilities of local governments were adversely impacted by directive (7911131EEC). Reprinted from Higginson et al.01) with permission from Noise News International. the closing of the national noise office. Within the last few years there has been a rekindling of interest in environmental noise abatement,both on the national and local levels,but Congress has machinery and equipment,ISO 4871.(911)This standard prescribe still not seen fit to appropriate funds for the implementation of the labeling of machines, or families of machines, with the A-s the Noise Control Act.There are now two self-sustaining national organizations concerned with noise abatement: the Noise Pollu- weighted sound power level in more than one mode of operation, lion Clearinghouse and the League for the Hard of Hearing. preferably the mode resulting in the highest value.Although the labeled sound power level may be useful for deciding which ma- There also has been considerable media attention to the problem chine to purchase,it gives relatively little information on the work- in recent years, as well as increased interest in local ordinances er's exposure in actual use. throughout the nation. A draft American National Standard is currently being prepared Efforts to control noisy products and workplaces have been by an ANSI working group(91) that adopts the provisions of ISO severely curtailed by OSHA's compliance directive of 1983,(9') 4871,with the addition of a series of annexes.Proposed Annex E Which effectively raised the PEL to a TWA of 100 dBA and dis- gives the option of including A-weighted sound pressure levels and couraged noise control even above that level due to extremely C-weighted peak sound pressure instead of or along with sound permissive enforcement procedures.(96)To the extent that manu- power levels.A proposed modification to Annex B gives examples facturers of construction equipment concerned themselves with of declarations for both sound power level and sound pressure the prospect of noise regulation from either EPA or OSHA,that level in the "idle" and "operating" modes. It is important to incentive has disappeared. 784 AI HA Journal (63) November/December 2002 used in noise-sensitive areas, where the use of noisier products would be proscribed.Irmer and Fischer-Sheikh Ali(93)also mention �e�}ZeI that the number of non-German applicants is steadily increasing, C with about 15% of the Blue Angel manufacturers coming from J� •�� outside Germany.A 1997 publication of the German government gives an overview of construction machinery bearing the Blue An- gel labeL(97) The Caterpillar Co. is one of 14 manufacturers of excavators,with four types of machines displaying the Blue Angel. Their sound pressure levels range from 72 to 77 dBA. Of the 12 manufacturers of loaders,Caterpillar manufactures six models with y� sound pressure levels ranging from 68 to 78 dBA.Other products �F listed include compressors,power generators,welding generators, paver-finishers, concrete mixers, and tower cranes. Additional products and companies are undoubtedly certified today.Current information on the Blue Angel program is available at http:// www.blauer-engel.de. e�/ larma� Buy Quiet Programs ✓4ry t rnweltz0r-h' EPA's Office of Noise Abatement and Control initiated an am- bitious Buy Quiet program during the 1970s.(98)Its purpose was to leverage the multibillion dollar public sector market to buy qui- FIGURE 9. The 'Blue Angel' label. Reprinted from Irmer and et products. This would be done by organizing government pur- Fischer•Sheikh Ali(") with permission from Noise News chasing cooperatives and working through professional purchasing International. organizations. The agency's program included the Government Services Administration, the National Institute of Governmental Purchasing, the National League of Cities, and various federal, The Blue Angel Program state,and local purchasing agencies and cooperatives. The EPA's Buy Quiet program consisted of four parts: (1) a Europe,however,does provide some incentive for noise reduction series of conferences to develop quiet product purchase descrip- by the manufacturers of construction machinery,even in the Unit- ed States. First,there are the directives for noise limits and label- purchasing cooperatives agree to buy quiet products as an ongoing ing,with which American manufacturers must comply if they wish activity, (3)a data bank for quiet purchasing operated by the Na- to sell their products on the European market.The advent of the tional Institute of Governmental Purchasing,and(4)demonstra- ANSI standard on labelin g o machinery hi for noise could possibly Y p Y lions of quiet products loan ed by the EPA to local governments. encourage U.S.manufacturers to reduce product noise level g p s,even noise Bids were evaluated on the basis of both t level and price.In though the standard will not be mandatory. 1981'64 governments had either committed themselves to a Buy The most promising development is Germany's"Blue Angel"p g p Y g Quiet program or were considering doing so. program, which could have beneficial spillover for construction EPA's Buy Quiet program had a short life because the agency workers in the United States and which could also be used as a was closed in 1982. At present there are no data on the number model in this country.The Blue Angel refers to a program for the of government agencies (federal, state,or local)with these kinds voluntary designation of products as favorable to the environment. of programs,but it is likely to be relatively few. It was developed in Germany in 1977 and is flourishing today. There is evidence,however,that these programs may continue The programs two main purposes are to assist customers in the in some places. Haag^ reported that the 1987 edition of the choice of products and to encourage manufacturers to develop National Fire Protection Association (NFPA) Standard on Fire and market environmentally friendly products.Figure 9 shows the Department Occupational Safety and Health Program contained Blue Angel label with the environmental logo of the United Na- noise specifications. Section A-5-8.1 stated that "new fire appa- tions, the inscription "Umweltzeichen" (environmental label) ratus should provide maximum sound requirements that would above,the words "weil larmarm" (because low-noise)below,and allow members to ride in those vehicles without hearing protective the words "Jury Umweltzeichen" (Environmental Label Jury) devices. A maximum limit of 85 dBA without audible warning underneath. devices and 90 dBA with warning devices in operation is recom- Blue Angel awards for low-noise construction equipment were mended."(99,P.F-zz) established in 1988.Irmer and Fischer-Sheikh Ali(91)reported that more than 40 companies had applied for the award with about 200 products displaying the label. Differences in sound levels be- CONCLUSIONS tween the existing noise limits in EC directives and those emitted by the Blue Angef products range from 5 to 14 dBA.In the early pproximately one-half million construction-workers are ex- days of low-noise construction equipment the Federal Environ posed to hazardous levels of noise. Studies of construction mental Agency gave some financial support to interested manu- workers'HTLs in the United States reflect excessive exposure,and facturers,but the authors report that the Blue Angel proved to be it appears that the onset of noise-induced hearing loss starts early a good advertising tool and financial incentives are no longer and continues throughout the career. needed. The prevalence of HPD use in the U.S. construction industry Some local governments in Germany have given preference to is very poor and only recently has begun to improve.Anxiety con- Blue Angel construction products and are allowing them to be cerning the ability to perceive and understand warning signals and AIHA Journal (63) November/December 2002 785 communication is an important factor in resisting HPDs,and re- should be encouraged to design their products for maximum au- search over recent years supports the validity of this anxiety. In dibility in the noise conditions most typical of their use, and to British Columbia,however,the use of HPDs is significantly higher be perceived and understood by workers with noise-induced hear- than in the United States, which is related to the success of its ing loss, workers wearing HPDs, and workers under varying de- overall HCP. Today's broad range of HPDs,with several models grees of attentional demand. Contractors should be encouraged designed specifically to mitigate the problems of hearing and un- to purchase warning devices that are suitable for the work envi- derstanding communication and warning signals in noise,points ronments for which they are intended. toward the necessity of careful selection and fitting of HPDs. Pressure should be brought to bear on OSHA to move as rap- Audiometric testing in industry is of virtually no value unless idly as possible to extend the general industry noise regulation, serial audiograms can be compared. The problem of audiometric including its amendment for HCPs,to cover construction work- record keeping is especially difficult in construction because of the ers.Although sections of the regulation would need to be tailored mobility of construction workers and the small size of many con- specifically to construction, it appears that the necessary knowl- struction companies. Some kind of centralization, such as that edge and technology are available. found in the British Columbia program,would appear to be the The agency should also be encouraged to rescind its instruction best solution. Credit card storage devices or"smart cards"could of Nov. 8, 1983,CPL 2-2.35 and all references to a TWA of 100 make audiometric record keeping considerably more efficient for dBA in its directives and manuals. This policy was not subject to mobile employees because workers could easily carry them from public notice and comment and provides a powerful disincentive job to job. for noise control and the conservation of workers' hearing in all Although there has been relatively little investigation into the industries,including construction. effects of noise,hearing loss,and HPDs on accidents in the con- Additional noise measurement data are needed on the sound struction industry,the existing research,along with evidence from levels of various types of construction equipment and various studies of other industries,demonstrates the likelihood of adverse models within the same type.These data would facilitate the iden- effects in construction. There are several steps that can be taken tification of low-noise and high-noise equipment,both for OSHA to reduce this hazard. to assess the technological capabilities of the industry and for the Noise control is the most effective way to prevent noise-in- sake of contractors who wish to purchase quieter equipment. duced hearing loss in construction, and very possibly reduce the Consideration should be given to the identification and use of incidence of serious accidents.Although maintenance and retrofit a centralized agency(or agencies)in which audiometric test results are viable approaches,control at the design stage is most desirable. could be kept on a permanent basis. Considerable information in this area is available,although some The use of"smart cards"to store and transfer audiometric data of it may be dated. should be further investigated. European standards and directives have focused attention on A noise control database for the construction industry needs noise emission in European countries.These directives,which lim- to be developed. It should include noise sources and levels,rce it noise exposure and mandate labeling and provision of infor- ommended treatments, quieted noise levels, estimated costs,and mation, must provide some incentive to manufacturers, even the availability of materials for treatments.The database should be though these requirements need to be made more relevant to the made available electronically as well as on paper, and should be workplace in some cases. targeted to contractors,worker representatives,professionals in in- Incentives for noise control on construction sites in the United dustrial hygiene and noise control, and federal and state compli States have diminished over the last two decades.The most likely ance officers. reasons are the closing of EPA's Office of Noise Abatement and Government agencies should make financial and technical as- the issuance of OSHA's compliance directive for general industry, sistance available to organizations that could renew interest in Buy which effectively raised the PEL to 100 dBA. European directives Quiet programs. may provide some incentives to U.S. manufacturers,especially in Organizations within the United States should obtain infor- the form of programs like Germany's Blue Angel. Governmental mation about and publicize the achievements of all companies that Buy Quiet programs could also provide some incentive for noise currently display Germany's Blue Angel label for quiet equipment. control. ACKNOWLEDGMENTS RECOMMENDATIONS The author wishes to thank her colleagues for contributions to Professionals in industrial hygiene and hearing conservation ■ and review of this manuscript, especially Elliott Berger, Rick should make every effort to control excessive noise on con- Neitzel,Scott Schneider,and Jim Maddux. struction sites through the purchase of quieter equipment,as well as retrofit and proper maintenance of existing equipment.These REFERENCES efforts would not only conserve hearing but also aid in the pre- vention of noise-related accidents and fatalities. 1. LaBenz,P.,A.Cohen,and B.Pearson:A noise and hearing survey Training programs should be developed for workers and con- of earth-moving equipment operators. Am. Ind. Hyg. 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Environmental Protection Agency(EPA):Substrategy for Construc- 1978 on the Approximation:of the Laws of the Member States Relating tion Site Noise Abatement (EPA/550/9-82-151; NTIS: PB82- to the Determination of the Noise Emission of Construction Plant and 218579).Washington,D.C.:EPA,1981. Equipment(79/113/EEC). Brussels: Official Journal of the Euro- 99. Haag, W.M.: Purchasing power. Appl. Ind. Hyg. 3(9):F22-F23 pean Communities, 1979. (1998). 87. Council of the European Communities: Council Directive of 12 May 1986 on the protection of workers from the risks related to exposure to noise at work(86/188/EEC).Brussels:Official Journal of the Eu- APPENDIX A ropean Communities,1986. 88. Council of the European Communities: Council Directive of 14 Reports pertaining to construction noise generated by the U.S. June 1989 on the Approximation of the Laws of the Member States EPA's Office of Noise Abatement and listed in the Bibliogra- Relating to Machinery (8913921EEC),Modified by Council Directives sa 91 1368 1EEC of 20 June 1991 and 93144 1EEC of 14 June 1993.Brus- sels:Official Journal of the European Communities,1993. ■ "Substrategy for Construction Site Noise Abatement" (1981) 89. Lazarus,H.,and D.Zimmermann:Noise control standards for ma- ■ "Analysis and Abatement of Highway Construction Noise" chinery and workplaces. Noise/News Int. 6:201-207(1998). (1981) 90. International Organization for Standardization (ISO): Interna- ■ "Availability of Workplace Noise Control Technology of Se- lected Machines" (1981) tional Standard:Acoustics-Noise Labeling of Machinery and Equip ment(ISO 4871;1984).Geneva:ISO,1984. ■ "A Comparison of Sound Power Levels for Portable Air Com- 91. American National Standards Institute:Draft American National pressors Based Upon Test Methodologies Adopted by U.S. EPA Standard Declaration and Verification of Noise Emission Values of Ma- and the CEC" (1980) chinery and Equipment(ANSI S12,WG38,Feb.10,1999)New York: ■ "Construction Noise Control Technology Initiatives"(1980) Acoustical Society of America,1999. ■ "Noise Technology Research Needs and the Relative Roles of 92. Kyttala,I.,and E.Airo:"Noise Declaration of Hand Held Machin- the Federal Government and the Private Sector" (1979) ery." Paper presented at Forum Acusticum 99,joint meeting of the ■ "Foreign Noise Research in Machinery/Construction Equip- Acoustical Society of America and the European Acoustics Associa- ment" (1978) tion,Berlin,March 15-19,1999. ■ "Federal Research, Development and Demonstration Pro- 93. Irmer,V.,and E.Fischer-Sheikh Ali: Reduction of noise emission grams: Machinery and Construction Noise" (1978) of construction machines due to the"Blue Angel Award."Noise/News ■ "Understanding Noise and Noise Control Instruction Units for Int. 7.159-167(1999). Operating Engineers in Apprenticeship Programs" (1978) 94. European Commission: Proposal for a European Parliament and ■ "Proposed Wheel and Crawler Tractor Noise Emission Regu- Council Directive on the Approximation of the Laws of the Members lation: Part I, Draft Environmental Impact Statement. Part II, States Relating to the Noise Emission by Equipment Used Outdoors (KOM [19981 46 final of the 1998-02-18 and Official Journal No Background Document" (1977) C 124, 1998-04-22, 1-72). Brussels: Official Journal of the Euro- ■ "Background Document for Portable Air Compressors"(1976) pean Communities,1998. ■ "Background Document for Medium and Heavy Truck Noise 95. Occupational Safety and Health Administration(OSHA):Guide- Emission Regulations" (1976) lines for Noise Enforcement(Instruction CPL 2-2.35,Nov.9,1983). ■ "Medium and Heavy Truck Noise Emission Standards"(1976) Washington,D.C.:OSHA, 1983. ■ "Noise from Construction Equipment and Operations,Build- 96. Suter,A.H.:Noise wars. Technol.Rev. 92(8):42-49(1989). ing Equipment,and Home Appliances" (1971) AIHA Journal (63) November/December2002 789 USATODAY.com POLITICAL in. WATCH NOW C1ltWT_911N:1z= Weigh Discuss. News - •E44AILTHIS • PRINTTHIS • SAVETHIS • MOSTPOPULlAR • SUBSCRIBE 05/20/2005-Updated 11:59 AM ET Search Six minutes to live or d e powe ed• Y Wash/Politics •ND WORD 1 The price of just a few seconds Video Washington briefs lost: People die • Security camera captures an AED saving a sudden cardiac By Robert Davis, USA TODAY arrest victim • In some cities,there are Medical resources LOS ANGELES —When problems even before an �i baggage handler Andrew Redyk, ambulance hits the road • 64, collapsed on the job at Los n Angeles International Airport, his -- Columnists co-workers leaped into action. State of emergency medical Cartoons One called for help. Another did services across the USA CPR. • How 50 mabr cities stack up Top news briefs The Los Angeles Fire Department • The method: Measure how Nation briefs sent a nearby fire engine and an many victims leave the hospital alive World briefs ambulance, which arrived at the States airport in six and seven minutes, Lotteries respectively. Officially, their By the numbers response time was quick enough Chat transcript Special reports g Robert Hanashiro, USA TODAY to save Redyk. • USA TODAY's Robert Davis Yi discusses the EMS crisis Day in pictures In Los Angeles: Marc Eckstein, Snapshots the fire department's medical In truth, almost half an hour Offbeat director,watches as emergency passed before rescuers actually Video medical technician Cecco Secci reached Redyk. He died. checks Monroe Hall, 76, for a irk concussion after hall fell and hit his This official deception is not STORIES head. unusual. Los Angeles is one of Today's stories many cities that routinely lie to • Cover story: The price of Arcade themselves about their true response times to medical a just a few seconds lost: Newspaper emergencies. The result is needless deaths. People die Classifieds • Doctors in charge rarely call There is no nationwide standard for measuring emergency the shots response times. A USA TODAY study of the 50 biggest U.S. • Table: How many lives cities found that most report only the slice of the response that could be saved looks most favorable: the time it takes for the emergency crew to drive to the scene. On many emergency runs, that is just a Part 1 fraction of the time that passes between the call for help and the • Cover story:]D, arrival of rescuers. emergencies, many cities fail to save live that could be Yet most cities base quality-control decisions on these official saved response times, which are misleading and incomplete. As • P 9 p Seattle: Firefighters. medics http://www.usatoday.com/news/nation/ems-day2-cover.htm[7/18/2012 1:47:34 PM] USATODAY.com J result, people die, and attempts to improve survival rates fail. unite to save liter • Washington:Slow More than 1,000 "saveable" lives are lost needlessly each year in response, lack of cooperation the nation's biggest cities because of inefficiencies in the cities' bring deadly delay emergency medical systems, USA TODAY's investigation found, and at the root of these inefficiencies in many cases is the simple matter of counting seconds. Cities that rely on these imprecise response times leave precious minutes unaccounted for — minutes that are lost as the call for help is routed through a busy dispatch center or as crews park and make their way to the victim's side, perhaps through a tall building, a shopping mall or an airport terminal. The 18-month investigation —which included a survey of emergency medical directors, analyses of dispatch data, extensive site visits and interviews with city officials, firefighters, paramedics and victims' families —found that the way cities measure their response time to the most critical calls makes a difference in how many lives are saved. Those that save the most lives often have improved their performance by first changing the way they measure response times to life-or-death calls, then making changes to their systems based on weaknesses revealed by those measurements. On sudden cardiac arrest calls —the truest measure of emergency medical performance—these cities have focused on the response time from the victim's point of view: How long after 911 is called does help reach the patient and deliver lifesaving care? New research from the Mayo Clinic shows that this type of patient —one whose heart has short-circuited and has been thrown into a chaotic condition known as ventricular fibrillation —has six minutes to live. A shock with a defibrillator within that time usually will restore the heart's rhythm. Even if the victim goes an additional minute without a normal heartbeat, he can still survive if paramedics restore his breathing and administer key drugs, such as adrenaline. But Redyk was kept waiting for 25 minutes —far too long for a shock from a defibrillator to help. He had no chance for survival. According to news reports confirmed by Los Angeles' EMS medical director, the delay was caused by confusion, beginning with a misunderstanding between the caller and the dispatcher. When emergency crews entered the airport's baggage claim area, Redyk was nowhere to be found. By the time rescuers determined that the man had collapsed in a baggage room beneath them —and by the time they drove around the terminal through security gates onto the airfield and to a ground- level entrance — it was too late. The official response time was still reported as six minutes. Only 6% to 10% are saved Deaths such as Redyk's are far more common in some cities than in others, the USA TODAY analysis found. Emergency medical systems in a majority of the nation's 50 largest cities save only an estimated 6% to 10% of the victims of sudden cardiac arrest who realistically could be saved, which is the national average. But if all major cities followed the steps taken by Seattle, Boston, Oklahoma City, Tulsa and a few others that measure the truer response time, they could raise the survival rate to 20% or more, and about 1,000 more lives would be saved. Nationwide, however, the record remains dismal. USA TODAY's analysis shows: • Few cities know exactly how long their emergency crews take to reach cardiac arrest victims, and most are selective about how they portray their performance. Only nine of the 50 largest cities track their response times http://www.usatoday.com/news/nation/ems-day2-cover.litm[7/18%2012 1:47:34 PM] USATODAY.com precisely enough to know how often emergency crews reach the victims of cardiac arrest within six minutes. • Most other U.S. cities don't know their response times, refuse to disclose them or use imprecise measures that are meaningless in determining whether emergency crews reach victims in time to save them. This situation persists even though research clearly has shown that precise measuring improves performance and saves lives. Houston, for example, went from a near-zero survival rate for sudden cardiac arrest to 21% after it started to measure and fix problems that became clear. Top emergency officials acknowledge that more precise measures are needed. "Response times are deceiving," says Harold Shaitberger, president of the International Association of Fire Fighters, which is studying ways to measure emergency medical performance. "With emergency medical services, an important factor is not only how quickly paramedics arrive at the scene, but how quickly they begin administering treatment." Marc Eckstein, Los Angeles Fire Department's medical director, agrees. "If your house is on fire, do you want to know the time it takes for them to get to the scene or the time it takes to squirt water? " he says. "It's time to mitigation. Doing it the way we do it only makes pretty statistics." The nation's emergency medical services are lagging at a time when science is leaping ahead, zeroing in on the exact moment between life and death. Medical experts are beginning to understand By Robert Hanashiro, USA TODAY Just how crucial a minute —and even seconds — Measuring response times today can be in emergency response. only makes for pretty statistics, says Los Angeles Fire Department Some cities have embraced the time challenge; medical director Marc Eckstein. they are using new technology and creative approaches to measure and shave seconds from their response times, and ultimately they save more lives. Rochester, Minn., home of the Mayo Clinic, has led the way. Over the past 12 years, Rochester, with Mayo's help, has measured —to the second —the "call-to- shock" time, from the time the 911 call comes in to the moment a shock is delivered to the patient. Rochester knows, for example, that the people who are saved are shocked on average within 5 minutes 30 seconds. It also knows that those victims who were not saved were not shocked until, on average, 6 minutes 42 seconds after the 911 call was received. The Rochester data show that speed is so crucial that even less trained first responders who get to the victim with a defibrillator before the ambulance arrives can make the difference between life and death. The city decided to give police officers defibrillators. Now, when an emergency dispatcher learns that a victim of cardiac arrest needs help, the call goes out with the same audible urgency of"an officer down." A piercing alert is broadcast over the police radio, grabbing the attention of every officer on the street. The police race the fire trucks to the scene, and the police often have a head start because they are driving around on patrol. Rochester police officers have been the first to shock 37 of the 73 people who were saved in the past 12 years. And the city has raised its sudden cardiac arrest survival rate from an already impressive 30% to 44%, about the same as Seattle, which has the highest rate in the nation among big cities at 45%. 'Measure. .. to the second' http://www.usatoday.com/news/nation/ems-day2-cover.htm[7/18/2012 1:47:34 PM] USATODAY.com The key to Rochester's success is no mystery, says Roger White, emergency medical services physician and anesthesiologist at the Mayo Clinic. "The data state it very clearly and unequivocally," White says. "We measure these times precisely to the second. A one-minute decrease in the call-to-shock time increases the odds of survival by 57%. In other words, a three-minute reduction in call-to-shock time improves a victim's odds of survival almost four-fold. Who is most saveable? "That is why we believe that constant evaluation of these intervals is critical. If we start to slip in our The most saveable victim of survival, the first place we are going to look is right suddent cardiac arrest is someone: here." • Whose arrest is not caused by chronic disease,trauma or old age. Rochester has taught other cities —much bigger • Whose heart goes into a state of cities, in some cases—how to save lives. ventricular fibrillation,or V-fib, making it a candidate for When Miami-Dade County in Florida gave its defibrillation. police officers defibrillators, it slashed three • Whose collapse is reported immediately to 911. minutes off the response time to cardiac arrest cases and raised its survival rate from 9% to 17%. Other cities, including Washington, D.C., and New York, have tried to follow suit and have purchased defibrillators for police officers. But survival rates in those cities have yet to rise. Interviews with police and with instructors who conduct defibrillator education programs suggest that part of the problem in big-city police departments has been resistance by officers who, much like firefighters, object to the change in their job description. But Rochester's police, inspired by the 37 lives they have saved, have for the most part accepted their expanded role. "This is our police culture," says Steven Johnston, the deputy police chief. "This is the way we've always done it. We don't know any different." Rochester is a relatively small city, too small to have been included in USA TODAY's survey of big-city emergency medical systems. Larger cities have tougher problems and are much more difficult to change. Still, some have been successful in instituting call-to-shock measurement, and the survey shows that, with a few exceptions, they are the cities with the highest survival rates. In 2001, the year studied, USA TODAY found (graphic: How 50 cities stack up): • Seattle had a 45% survival rate, highest among the nation's 50 biggest cities. On average, Seattle's emergency crews took 8 minutes 46 seconds to shock victims of sudden cardiac arrest. That time includes 90 seconds of CPR, in accordance with city protocol. • Oklahoma City had a 27% rate; average call-to-shock: 7 minutes, 36 seconds. • Tulsa, a 26% rate; average call-to-shock: 8 minutes, 48 seconds. Six other cities measure call-to-shock but use less precise survival measures or could not provide other key information: • Columbus, Ohio, delivers 22% of victims to the hospital with a heartbeat but does not know how many survive; average call-to-shock: 7 minutes, 49 seconds. • Charlotte would not report its cardiac arrest survival rate, but it reported 6 minutes, 56 seconds call-to-shock average. • Oakland delivers 6% of cardiac arrest victims to the hospital with a heartbeat; average call-to-shock: 7 minutes. • Philadelphia delivers 5% of cardiac arrest patients to the hospital with a pulse; average call-to-shock: 6 minutes 50 seconds. • San Antonio, with a 9% survival rate, says call-to-shock is always within http://www.usatoday.com/news/nation/ems-day2-cover.htm[7/18/2012 1:47:34 PM] USATODAY.com five minutes, but the city did not provide detailed data to support that claim. Fresno's survival rate is unknown; average call-to-shock: 22 minutes 11 seconds. At the lower end of the survival-rate spectrum, most cities don't measure call-to- shock time, or they refuse to say how long it takes them to reach people. White says every city, big or small, could measure that key part of the response. "We believe the call-to-shock interval is something that can be objectively measured in every EMS system," White says. "It can provide a lot of insight into the likelihood of patient survival." Unfortunately, says Shaitberger of the firefighters union, "very few fire departments and other EMS providers currently collect sufficient data to provide meaningful evaluations of their systems." And without honest and precise appraisal, he and other emergency experts agree, the systems' weaknesses will remain hidden, and people will die needlessly. Contributing: Rati Bishnoi, Anthony DeBarros, Mary Grote, In-Sung Yoo USATODAY.com partners: USA WEEKEND • Sports Weekly . Education • Space.com Home • Travel •News • Money •SBSy • Life• Tech • Weather Resources: Mobile news •Site map • FAQ • Contact us • E-mail news Jobs with us • Internships •Terms of service• Privacy policy/Your California Privacy Right Advertise• Press Room • Media Lounae • Electronic print edition • Reprints and Permissions Add USATODAY.com RSS feeds The Nation's Homepage Copyright 2008 USA TODAY, a division of Gannett Co. Inc. http://www.usatoday.com/news/nation/ems-dav2-covcr.litm[7'18/2012 1:47:34 PM] LHSFNA: Noise Home About Us Health Promotion 0CCUp2tion2l Construction sites are noisy places. Today, as a result of noise exposure, thousands of construction workers are hearing impaired, and thousands more are destroying their hearing through everyday work in the industry. Research shows that hearing loss is a gradual and irreversible process. Without the use of audiometric tests, few workers will realize that they are losing their hearing until it is too late. This is why the LHSFNA urges the establishment of comprehensive hearing conservation programs on all construction worksites, despite the fact that OSHA currently requires only minimal protection. • OSH Case Studies • Regulatory Matters • Committee Participation Contents Controlling noise is a challenge for construction contractors. Based on experience • Introduction P Fall Protection and feedback from contractors, Laborers and • Quieter Equipment • PEST professionals across North America, the • Modifying Old Ergonomics Construction Noise Control Partnership is Equipment Noise assembling est Practices Guide. • Barrier Protection g a o Noise Resource Links Work Activity Construction Noise Scheduling • Maintenance Control Partnership The project is a living document.Click on the • Noise Perimeter o NCPHL Bill Duke headings at right to see where it now Zones o National Conference stands.Click here to see or print the entire Conclusion on Hearing Loss in document. Construction o NCPHL Margaret Roberts o Quieting Your Improving hearing conservation programs in construction a top priority. The Fund sponsored the first Construction Site national conference on the issue and facilitated the formation of the national Construction o Chemicals and Noise Control Partnership to advance best practices. It also provided written testimony to OSHA Hearing Loss opposing the agency's reversal of an earlier decision to require separate record keeping of hearing o Comments for loss injuries on the OSHA Form 300 (Hearing Tests Confirm Stance), and it urged OSHA to ANPRM for Noise Standard in httn /AMAMI Ihcfna nrn/inrlav rfm?nhiortTr)-FP)QFFrl A_rISrF_FrFA_QQAZR1RnaPl7gA('QrQ/17/7(117 7.VZ-rQ DMl LHSFNA: Noise require hearing protection for workers, not based on time-weighted average noise exposures, but on Construction the noise levels of specific tasks and specific areas (Comments for ANPRM for Noise Standard in Construction). Comments for ANPRM for Noise The Fund also provides training in the proper use of hearing protection. It provides a model program, Standard in Hearing Conservation for Construction Workers, to guide contractors and their safety officers in the Construction establishment of company hearing conservation programs, and, when a signatory employer asks, the (Executive Summary) Fund's OSH Division staff supports the model program with on-site consultation and testing. Recordkeeping and MSDs • Hearing Tests at Tri- Fund Conference Confirm Risk to Laborers • Hearing Test Results from West Virginia • Occupational Hearing Loss Easy to Overlook • Your Input Sought... • Safety Culture • Silica • Work Zone Safety • Workers Compensation • Other Safety&Health Issues • Find It Fix It LABORERS'HEALTH& SAFETY FUND OF NORTH AMERICA 905 16th Street, N.W. Washington, D.C.20006 (202)628-5465 Fax(202)628-2613 L,++..•//..,,...., Ih.-f..� .,r.,/ir..le.. -f..-,7nh;o.-fTfl—CQ7DCCflS.1_fICG C_C�CA_DDAZRIR(1dF172A('Rf0/17/7(117 7•�2•CR DMl —x Exeeutitle Department &are of California I EXECUTIVE ORDER B-29-15 WHEREAS on January 17, 2014, 1 proclaimed a State of Emergency to exist throughout the State of California due to severe drought conditions; and WHEREAS on April 25, 2014, 1 proclaimed a Continued State of Emergency to exist throughout the State of California due to the ongoing drought; and WHEREAS California's water supplies continue to be severely depleted despite a limited amount of rain and snowfall this winter,with record low snowpack in the Sierra Nevada mountains, decreased water levels in most of California's reservoirs, reduced flows in the state's rivers and shrinking supplies in underground water basins; and WHEREAS the severe drought conditions continue to present urgent challenges including: drinking water shortages in communities across the state, diminished water for agricultural production, degraded habitat for many fish and wildlife species, increased wildfire risk, and the threat of saltwater contamination to fresh water supplies in the Sacramento-San Joaquin Bay Delta; and WHEREAS a distinct possibility exists that the current drought will stretch into a fifth straight year in 2016 and beyond; and I) WHEREAS new expedited actions are needed to reduce the harmful impacts from water shortages and other impacts of the drought; and WHEREAS the magnitude of the severe drought conditions continues to present threats beyond the control of the services, personnel, equipment, and facilities of any single local government and require the combined forces of a mutual aid region or regions to combat; and WHEREAS under the provisions of section 8558(b)of the Government Code, I find that conditions of extreme peril to the safety of persons and property continue to exist in California due to water shortage and drought conditions with which local authority is unable to cope; and WHEREAS under the provisions of section 8571 of the California Government Code, I find that strict compliance with various statutes and regulations specified in this order would prevent, hinder, or delay the mitigation of the effects of the drought. NOW,THEREFORE, I, EDMUND G. BROWN JR., Governor of the State of California, in accordance with the authority vested in me by the Constitution and statutes of the State of California, in particular Government Code sections 8567 and 8571 of the California Government Code, do hereby issue this Executive Order, effective immediately. v x IT IS HEREBY ORDERED THAT: 1. The orders and provisions contained in my January 17, 2014 Proclamation, my April 25, 2014 Proclamation, and Executive Orders B-26-14 and B-28-14 remain in full force and effect except as modified herein. SAVE WATER 2. The State Water Resources Control Board (Water Board) shall impose restrictions to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. These restrictions will require water suppliers to California's cities and towns to reduce usage as compared to the amount used in 2013. These restrictions should consider the relative per capita water usage of each water suppliers'service area, and require that those areas with high per capita use achieve proportionally greater reductions than those with low use. The California Public Utilities Commission is requested to take similar action with respect to investor-owned utilities i providing water services. 3. The Department of Water Resources (the Department)shall lead a statewide initiative, in partnership with local agencies, to collectively replace 50 million square feet of lawns and ornamental turf with drought tolerant landscapes. The Department shall provide funding to allow for lawn replacement programs in underserved communities,which will complement local programs already underway across the state. 4. The California Energy Commission,jointly with the Department and the Water Board, shall implement a time-limited statewide appliance rebate program to provide monetary incentives for the replacement of inefficient household devices. 5. The Water Board shall impose restrictions to require that commercial, industrial, and institutional properties, such as campuses, golf courses, and cemeteries, immediately implement water efficiency measures to reduce potable water usage in an amount consistent with the reduction targets mandated by Directive 2 of this Executive Order. 6. The Water Board shall prohibit irrigation with potable water of ornamental turf on public street medians. 7. The Water Board shall prohibit irrigation with potable water outside of newly constructed homes and buildings that is not delivered by drip or microspray systems. Y W 8. The Water Board shall direct urban water suppliers to develop rate structures and other pricing mechanisms, including but not limited to surcharges, fees, and penalties, to maximize water conservation consistent with statewide water restrictions. The Water Board is directed to adopt emergency regulations, as it deems necessary, pursuant to Water Code section 1058.5 to implement this directive. The Water Board is further directed to work with state agencies and water suppliers to identify mechanisms that would encourage and facilitate the adoption of rate structures and other pricing mechanisms that promote water conservation. The California Public Utilities Commission is requested to take similar action with respect to investor-owned utilities providing water services. INCREASE ENFORCEMENT AGAINST WATER WASTE 9. The Water Board shall require urban water suppliers to provide monthly information on water usage, conservation, and enforcement on a permanent basis. 10. The Water Board shall require frequent reporting of water diversion and use by water right holders, conduct inspections to determine whether illegal diversions or wasteful and unreasonable use of water are occurring, and bring enforcement actions against illegal diverters and those engaging in the wasteful and unreasonable use of water. Pursuant to Government Code sections 8570 and 8627,the Water Board is granted authority to inspect property or diversion facilities to ascertain compliance with water rights laws I� and regulations where there is cause to believe such laws and regulations have been violated. When access is not granted by a property owner, the Water Board may obtain an inspection warrant pursuant to the procedures set forth in Title 13 (commencing with section 1822.50) of Part 3 of the Code of Civil Procedure for the purposes of conducting an inspection pursuant to this directive. j 11. The Department shall update the State Model Water Efficient Landscape Ordinance through expedited regulation.This updated Ordinance shall increase water efficiency standards for new and existing landscapes through more efficient irrigation systems, greywater usage, onsite storm water capture, and by limiting the portion of landscapes that can be covered in turf. It will also require reporting on the implementation and enforcement of local ordinances, with required reports due by December 31, 2015. The Department shall provide information on local compliance to the Water Board, which shall consider adopting regulations or taking appropriate enforcement actions to promote compliance. The Department shall provide technical assistance and give priority in grant funding to public agencies for actions necessary to comply with local ordinances. 12. Agricultural water suppliers that supply water to more than 25,000 acres shall include in their required 2015 Agricultural Water Management Plans a detailed drought management plan that describes.the actions and measures the supplier will take to manage water demand during drought. The Department shall require those plans to include quantification of water supplies and demands for 2013, 2014, and 2015 to the extent data is available. The Department will provide technical assistance to water suppliers in preparing the plans. ti 13. Agricultural water suppliers that supply water to 10,000 to 25,000 acres of irrigated lands shall develop Agricultural Water Management Plans and submit the plans to the Department by July 1, 2016. These plans shall include a detailed drought management plan and quantification of water supplies and demands in 2013, 2014, and 2015, to the extent that data is available.The Department shall give priority in grant funding to agricultural water suppliers that supply water to 10,000 to 25,000 acres of land for development and implementation of Agricultural Water Management Plans. 14. The Department shall report to Water Board on the status of the Agricultural Water Management Plan submittals within one month of receipt of those reports. 15. Local water agencies in high and medium priority groundwater basins shall immediately implement all requirements of the California Statewide Groundwater Elevation Monitoring Program pursuant to Water Code section 10933. The Department shall refer noncompliant local water agencies within high and medium priority groundwater basins to the Water Board by December 31, 2015, which shall consider adopting regulations or taking appropriate enforcement to promote compliance. 16. The California Energy Commission shall adopt emergency regulations establishing standards that improve the efficiency of water appliances, including toilets, urinals, and faucets available for sale and installation in new and existing buildings. INVEST IN NEW TECHNOLOGIES 17, The California Energy Commission,jointly with the Department and the Water Board, shall implement a Water Energy Technology(WET) program to deploy innovative water management technologies for businesses, residents, industries, and agriculture. This program will achieve water and energy savings and greenhouse gas reductions by accelerating use of cutting-edge technologies such as renewable energy-powered desalination, integrated on- site reuse systems,water-use monitoring software, irrigation system timing and precision technology, and on-farm precision technology. STREAMLINE GOVERNMENT RESPONSE 18. The Office of Emergency Services and the Department of Housing and Community Development shall work jointly with counties to provide temporary assistance for persons moving from housing units due to a lack of potable water who are served by a private well or water utility with less than 15 connections, and where all reasonable attempts to find a potable water source have been exhausted. 19. State permitting agencies shall prioritize review and approval of water I infrastructure projects and programs that increase local water supplies, including water recycling facilities, reservoir improvement projects, surface water treatment plants, desalination plants, stormwater capture, and greywater systems. Agencies shall report to the Governor's Office on applications that have been pending for longer than 90 days. I r ry7 X j 20. The Department shall take actions required to plan and, if necessary, implement Emergency Drought Salinity Barriers in coordination and consultation with the Water Board and the Department of Fish and Wildlife at locations within the Sacramento-San Joaquin delta estuary. These barriers will be designed to conserve water for use later in the year to meet state and federal Endangered Species Act requirements, preserve to the extent possible water quality in the Delta, and retain water supply for essential human health and safety uses in 2015 and in the future. 21. The Water Board and the Department of Fish and Wildlife shall immediately consider any necessary regulatory approvals for the purpose of installation of the Emergency Drought Salinity Barriers. 22. The Department shall immediately consider voluntary crop idling water transfer and water exchange proposals of one year or less in duration that are initiated by local public agencies and approved in 2015 by the Department subject to the criteria set forth in Water Code section 1810. 23. The Water Board will prioritize new and amended safe drinking water permits that enhance water supply and reliability for community water systems facing water shortages or that expand service connections to include existing residences facing water shortages. As the Department of Public Health's drinking water program was transferred to the Water Board, any reference to the Department of Public Health in any prior Proclamation or Executive Order listed in Paragraph 1 is deemed to refer to the Water Board. s 24. The California Department of Forestry and Fire Protection shall launch a public information campaign to educate the public on actions they can take to help to prevent wildfires including the proper treatment of dead and dying trees. Pursuant to Government Code section 8645, $1.2 million from the State Responsibility Area Fire Prevention Fund (Fund 3063)shall be allocated to the California Department of Forestry and Fire Protection to carry out this directive. 25. The Energy Commission shall expedite the processing of all applications or petitions for amendments to power plant certifications issued by the Energy Commission for the purpose of securing alternate water supply necessary for continued power plant operation. Title 20, section 1769 of the California Code of Regulations is hereby waived for any such petition, and the Energy Commission is authorized to create and implement an alternative process to consider such petitions. This process may delegate amendment approval authority, as appropriate, to the Energy Commission Executive Director. The Energy Commission shall give timely notice to all relevant local, regional, and state agencies of any petition subject to this directive, and shall post on its website any such petition. r 26. For purposes of carrying out directives 2-9, 11, 16-17, 20-23, and 25, Division 13 (commencing with section 21000) of the Public Resources Code and regulations adopted pursuant to that Division are hereby suspended. This suspension applies to any actions taken by state agencies, and for actions taken by local agencies where the state agency with primary responsibility for implementing the directive concurs that local action is required, as well as for any necessary permits or approvals required to complete these actions. This suspension, and those specified in paragraph 9 of the January 17, 2014 Proclamation, paragraph 19 of the April 25, 2014 proclamation, and paragraph 4 of Executive Order B-26-14, shall remain in effect until May 31, 2016. Drought relief actions taken pursuant to these paragraphs that are started prior to May 31, 2016, but not completed, shall not be subject to Division 13 (commencing with section 21000) of the Public Resources Code for the time required to complete them. 27. For purposes of carrying out directives 20 and 21, section 13247 and Chapter 3 of Part 3 (commencing with section 85225) of the Water Code are suspended. 28. For actions called for in this proclamation in directive 20,the Department shall exercise any authority vested in the Central Valley Flood Protection Board, as codified in Water Code section 8521, et seq., that is necessary to enable these urgent actions to be taken more quickly than otherwise possible. The Director of the Department of Water Resources is specifically authorized, on behalf of the State of California, to request that the Secretary of the Army, on the recommendation of the Chief of Engineers of the Army Corps of Engineers, grant any permission required pursuant to section 14 of the Rivers and Harbors Act of 1899 and codified in section 48 of title 33 of the United States Code. 29. The Department is directed to enter into agreements with landowners for the purposes of planning and installation of the Emergency Drought Barriers in 2015 to the extent necessary to accommodate access to barrier locations, land-side and water-side construction, and materials staging in proximity to barrier locations. Where the Department is unable to reach an agreement with landowners,the Department may exercise the full authority of Government Code section 8572. 30. For purposes of this Executive Order, chapter 3.5 (commencing with section 11340) of part 1 of division 3 of the Government Code and chapter 5 (commencing with section 25400)of division 15 of the Public Resources Code are suspended for the development and adoption of regulations or guidelines needed to carry out the provisions in this Order. Any entity issuing regulations or guidelines pursuant to this directive shall conduct a public meeting on the regulations and guidelines prior to adopting them. i 50 x 31. In order to ensure that equipment and services necessary for drought response can be procured quickly,the provisions of the Government Code and the Public Contract Code applicable to state contracts, including, but not limited to, advertising and competitive bidding requirements, are hereby suspended for directives 17, 20, and 24. Approval by the Department of Finance is required prior to the execution of any contract entered into pursuant to these directives. This Executive Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person. I FURTHER DIRECT that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given to this Order. IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this 15t day of April 2015. EDMUND G. BROWN JR. Governor of California ATTEST: ALEX PADILLA Secretary of State r 17/09/2012 The U.S.Lags Behind in Global Noise Pollution Standards 0 Acoustiblok's Soundproofing Solutions Blog Current Articles 1 E3 RSS Feed The U.S. Lags Behind in Global Noise Pollution Standards Posted by Liz Ernst on Wed,Jul 25,2012 @ 01:00 PM The U.S.lags behind other industrial nations when it comes to establishing and enforcing federal noise standards,and the problem may boil down to one familiar battle:economics vs.the regulatory process.Stiff resistance to even the suggestion of stronger environmental noise standards leave many wondering if the Occupational Safety and Health Administration(OSHA)has any power when it comes to revising out-dated noise standards or even enforcing standards put in place. Noise pollution awareness is an uphill battle it seems,but New York City has made formidable progress over the past 15-20 years in toning down its volume. Anyone else remember the constant blare of taxi homs in Manhattan prior to the mid-to late 1990s,when laws were put in place to silence them?Although New York has worked hard to make the city less horrible in the noise pollution department,it still has a long way to go-as do most U.S.cities. A recent test of sound levels at a handful of bars,gym,and restaurants in New York City measured noise levels so high that guests and employees exposed to the noise for just two hours are put at risk,and the establishments could be in violation of OSHA safety standards if anyone was bothering to enforce them. But audiologists say that even if these businesses were in compliance with OSHA standards,it wouldn't be enough to protect workers'hearing.The fact is, the U.S.trails other industrialized countries when it comes to federal noise protection standards. The New York Times did a recent"sound tour'of Manhattan, using a noise docimeter to measure decibel levels at 37 businesses including gyms,shops,bars and restaurants.Guided by Rick Neitzel,assistant professor at the University of Michigan's Risk Science Center,the dosimeter used A-weighting,a science that mimics the human ear's sensitivity to sound at different frequencies.jij Nietzel,who has a substantial background in noise exposure research,in New York City and elsewhere,formatted the dosimeter to record various doses, based on standards established by OSHA,the National Institute for Occupations Safety and Health(NIOSH),and the Environmental Protection Agency (EPA).The docimeter was used to measure noise levels for exposure periods of 20 minutes to eight hours. If you're not familiar with how OSHA's decibel exposure formula works,allow me to describe it as simply as possible.Basically,OSHA requires workers who are exposed to 90 decibels for eight hours to wear hearing protection. Ninety decibels is the approximate noise equivalent of heaver truck traffic. OSHA states that when noise increases by five decibels,the noise workers are exposed to actually doubles.That means workers who needed hearing protection when exposed to eight hours at 90 decibels can only work four hours without ear plugs if the decibel level goes up to 95. This might seem reasonable.unless you have worked in a 90-95 decibel environment for years,in which case you're probably suffering from tinnitus and some significant level of hearing loss, not to mention possible cardio-vascular illness,high blood pressure,stress,and a sleep disorder.And harmful noise exposure is not limited to industrial environments.Teachers exposed to classroom noise for years are suffering from serious hearing loss by the time they reach middle age.If you work in a noisy restaurant with lots of hard surfaces off of which noise ricochets, or a bar in which conversations require yelling to be heard,or a gym with aerobics or spin class music blasting at 105 decibels-you're probably at risk.Toll booth workers,shopping mall employees,telephone call center staff—and the list goes on,as noise today is an ubiquitous problem that many people have come to accept as part of daily life. info.acoustiblok.com/blog/bid/773 13/The-U-S-Lags-Behind-in-G lobal-Noise-Pollution-Standards 112 17/09/2012 The U.S.Lags Behind in Global Noise Pollution Standards But other countries are doing a better job at complying with established noise standards.In fact,the U.S.is number 23 when it comes to noise exposure standards,tailing Argentina,Chile,Australia and the UK(to name just a few)in noise Pollution protection. Britain is taking noise pollution very seriously,as it proved last week when Hyde Park police pulled the plug on a Bruce Springsteen/Paul McCartney concert that ran 10 minutes past the community's noise curfew. In fact, Britain has a Web site where people can calculate their daily doses of noise.Canada conducts audiological testing on its teachers annually to make sure they are not going deaf,and to take measures to protect those who are.Brazil and Australia have programs in place that call for routine risk assessments and revisions to broaden the scope of noise-related health and hearing protection and preventive initiatives. Some powerful U.S.organizations may see to it that the U.S.stays at the bottom of the noise awareness pile despite the health risks of high decibel work environments. In 2010,OSHA reminded employers that providing earplugs for hearing protection in noisy work environments was only meant to be a temporary measure,and the agency would begin enforcing regulations requiring employers to soundproof noisy workplaces that did not comply with decibel limit recommendations.The move was necessary,OSHA representatives said,because too many workers were being harmed by workplace noise. Additionally,the decibel limit was to be lowered to 85—the same standard set in 21 of those 22 countries that rank ahead of the U.S. in noise exposure safety. India,home of the world's two noisiest cities(Mumbai and Kolkata)is the only other country with a 90 decibel worker safety threshold. Plus,under the stricter guidelines,employers would need to acknowledge the change to from five to three decibels doubling the risk of hearing loss. Before it had a chance to reach public service announcement status,OSHA's mandate was slapped down by the National Association of Manufacturers and the United States Chamber of Commerce,who claimed the revised guidelines would be too expensive. Audiologist and President of the National Hearing Conservation Association Laura Kauth says that the general consensus of hearing health professionals is that the U.S.should be adopting the 85 decibel limit in the workplace,and acknowledging the three-decibel standard for noise dose doubling, since regardless of the National Association of Manufacturers and the U.S.Chamber of Commerce objections, U.S.employees are at risk under existing standards. The New York Times study recorded the average noise level on a recent Saturday night at Manhattan restaurant Beaumarchais at 99 decibels. Under OSHA's updated standards,exposure to the noise levels in this eatery becomes unsafe to workers after only 19 minutes on the job. Enforcement of noise regulations at gyms,bars and restaurants in New York is largely non-existent.When employees complain about noise levels,their Iobjections are almost never being reported to OSHA. Noise control proponents say that lack of awareness at the federal level could be partly to blame.The only federal department assigned to address environmental noise,the Office of Noise Abatement,was defunded 30 years ago under President Ronald Reagan, and States were notified then that they would no longer receive federal assistance to curb noise pollution. Just one month after OSHA proposed the stricter guidelines in 2010,the agency withdrew its proposal. III Working or Playing Indoors, New Yorkers Face an Unabated Roar, Cara Buckley, New York Times, July 19, 2012 Tags:soundproofing,noise pollution,workplace noise,health effects of noise,sound proofing,noise standards noise regulation Post Comment Name Email Website(optional) Comment Allowed tags:<a>link,<b>bold,<i>italics M Receive email when someone replies. Subscribe to this blog by email. Post Comment I ©2012 Acoustiblok,Inc.All rights reserved. info.acoustiblok.com/blog/bid/773 13/The-U-S-Lags-Behind-in-G lobal-Noise-Pollution-Standards 2/2 r COOPERATIVE Revision Date:31 January 2009 EXTENSIONRebecca Pineo, Botanic Gardens Intern UNIVERSITY OF DELAWARE Susan Barton, Extension Specialist College ofAoaulture&Natural Resources University of Delaware - Bulletin #125 UNIVERSITY OF DELAWARE X00&7 Iic-Qr&ns Sustainable Landscapes Series Permeable vs. Impermeable Surfaces What is the difference between permeable and impermeable surfaces? Permeable surfaces (also known as porous or pervious surfaces) allow water to percolate into the soil to filter out pollutants and recharge the water table. Impermeable/impervious surfaces are solid surfaces that don't allow water to penetrate, forcing it to run off. Impermeable Surfaces Permeable Surfaces Asphalt Planting beds Concrete Mulched beds Traditional stone, brick or concrete Gravel pavers Permeable pavers Turf What is the impact of impermeable surfaces on the environment? Urban and suburban sites typically contain large expanses of impermeable surface, causing a host of problems: • Pollution of surface water. When stormwater runs off impermeable surfaces, it picks up pollutants as it flows into storm drains. The contaminated water then flows directly into rivers, lakes, wetlands and oceans, generating problems for biodiversity as well as public health. • Flooding of surface water and erosion of stream banks. During periods of heavy rainfall, large amounts of impermeable surfaces generate large amounts of runoff. This sudden influx of runoff into rivers can cause flash flooding and erosion of stream banks. • Water table is not adequately recharged. Because impermeable surfaces send rainwater into storm drains rather than allow it to percolate down to our aquifers, groundwater may be used faster than it is recharged. Sustainable Landscapes—http://aci.udel.edu/udbg/sl—http://aa.udel.edu/extension It is the policy of the Delaware Cooperative Extension System that no person shall be subjected to discrimination on the grounds of race,color,sex,disability,age,or national origin. • Formation of stagnate water puddles. On impermeable surfaces where runoff has no drainage route, stormwater can puddle for long periods of time. Stagnate puddles can become breeding places for undesirable insects such as mosquitoes. • Heat island effect. Due to the heat-absorbing quality of asphalt and other paving materials, sites with high ratios of impermeable surfaces increase ambient air temperatures and require more energy for cooling. How can I reduce the amount or effects of impermeable surfaces? • Provide maximum permeability of surfaces in your landscape. Replace surfaces in your landscape to promote maximum permeability. Asphalt Turf Concrete Permeable pavers Non-compacted soil with Grouted pavers(brick, stone) Dry-laid pavers Mulched planting beds maximum, diverse plant cover Least Permeable Most Permeable ■ Reduce the environmental impact of impermeable surfaces through on-site management of stormwater, such as: o Rain gardens. Rain gardens, sometimes called bio-retention areas, are shallow depressions in the landscape that capture stormwater and allow it to gradually percolate into the soil. Planted with moisture-loving plants that help filter out pollutants, rain gardens provide an attractive way to reduce the impact of stormwater on the environment. For more information, consult the fact sheet "Rain Gardens,"available at http://www.ag.udel.edu/udbg/sl/hydrology.html o Rain barrels and cisterns. Water tanks stored above and/or below ground can capture rainwater from downspouts for later use. They are available in many styles, materials and sizes to accommodate a variety of needs. For more information, consult the fact sheet"Harvesting Water,"available at http://www.ag.udel.edu/udbg/sl/hydrology.html o Green roofs. A green roof is a specially-engineered rooftop that supports plant life and captures rainwater before it runs off. Green roofs have been utilized in Sustainable Landscapes—http://ag.udel.edu/udbg/sl—http://ag.udel.edu/extension It is the policy of the Delaware Cooperative Extension System that no person shall be subjected to discrimination on the grounds of race,color,sex,disability,age,or national origin. 1 Europe for 30 years and are quickly gaining popularity in the United States. For more information, consult the fact sheet"Green Roofs,"available at http://www.ag.udel.edu/udbg/sl/hydrology.htmi o French drains. French drains are ditches filled with gravel or rock used to capture stormwater and direct its flow. They can be utilized on the downslope side of impermeable surfaces to move runoff to an area where it can infiltrate the soil. Permeable Paving Systems Permeable pavers are specially fabricated paving units designed to replace asphalt and other impermeable paving materials. Interconnected pore spaces within the material channel water into the underlying soil or into a special storage layer which forces slow percolation during periods of heavy rainfall. Permeable pavers are often laid on a bed of sand or gravel to enhance drainage properties. Examples of permeable paving systems • Grid of concrete pavers and void space filled with turf, sand or gravel • Aggregate of large stone particles and concrete with interwoven pore spaces • Turf system supported by a grid composed of post-consumer recycled plastic For images and more information, visit North Carolina State University's Permeable Pavement Research page at http.//www.bae.ncsu.edu/info/permeable-pavement/ Additional Resources Permeable Pavement Research @ North Carolina State University http://www.bae.ncsu.edu/info/permeable-pavement/ University of Washington Center for Water and Watershed Studies http://depts.washington.edu/cuwrm/ Bibliography Collins, Kelly. (2007) Permeable Pavement Research. North Caro lina State University. Retrieved November 9, 2008 from http://www.bae.ncsu.edu/info/permeable-pavement/ Sustainable Landscapes—http://ag.udel.edu/udbq/sl—htti):Haq.udel.edu/extension It is the policy of the Delaware Cooperative Extension System that no person shall be subjected to discrimination on the grounds of race,color,sex,disability,age,or national origin. Booth, Derek B.,Jennifer Leavitt,and Kim Peterson. (Unknown date).The University of Washington Permeable Pavement Demonstration Project: Background and First-Year Field Results. Center for Urban Water Resources Management, Department of Civil Engineering, University of Washington. Retrieved November 9, 2008 from http://depts.washinciton.edu/cuwrm/research/rc3.pdf Balogh,Anne. (2008). Permeable Surfaces: A Hot New Installation Segment. Landscape Online. February 2008. Retrieved November 9, 2008 from http://www.landscapeonline.com/research/article/10426 University of Washington. (Unknown Date). Center for Water and Watershed Studies. University of Washington. Retrieved December 4, 2008 from http://depts.washington.edu/cuwrm/ Sustainable Landscapes—http://aa.udel.edu/udba/sl—http://aa.udel.edu/extension It is the policy of the Delaware Cooperative Extension System that no person shall be subjected to discrimination on the grounds of race,color,sex,disability,age,or national origin. e Controlling Noise on Construction Sites Controlling Construction Noise Controlling construction noise can pose special problems for contractors. Unlike general industry, construction activities are not always stationary and in one location. Construction activities often take place outside where they can be affected by weather, wind tunnels,topography, atmosphere and landscaping. Construction noise makers, e.g., heavy earth moving equipment, can move from location to location and is likely to vary considerably in its intensity throughout a work day High noise levels on construction worksites can be lowered by using commonly accepted engineering and administrative controls. This booklet is filled with tips other contractors and have used to lower the noise levels on construction worksites.Normally, earplugs and other types of personal protective equipment(PPE) are used to control a worker's exposure to noisy equipment and work areas. However, as a rule, engineering and administrative controls should always be the preferred method of reducing noise levels on worksites. Only,when these controls are proven unfeasible, earplugs as a permanent solution should be considered. Engineering Controls Engineering controls modify the equipment or the work area to make it quieter. Examples of engineering controls are: substituting existing equipment with quieter equipment; retro-fitting existing equipment with damping materials, mufflers, or enclosures; erecting barriers; and maintenance. Administrative Controls These are management decisions on work activities, work rotation and work load to reduce workers' exposure to high noise levels. Typical management decisions that reduce worker exposures to noise are: moving workers away from the noise source;restricting access to areas; rotating workers performing noisy tasks; and shutting down noisy equipment when not needed. Personal Protective Equipment Earplugs are the typical PPE given to workers to reduce their exposure to noise. Earplugs are the control of last resort and should only be provided when other means of noise controls are infeasible. As a general rule,workers should be using earplugs whenever they are exposed to noise levels of 85 dB (A) or when they have to shout in order to communicate. 1 Construction sites can be quieter Although many in the construction industry believe that construction sites are inherently noisy,there are many ways in which they can be made quieter. • Sometimes a quieter process can be used. For example: Pile driving is very loud. IBoring is a much quieter way to do the same work. • New equipment is generally much quieter than old equipment. Some equipment manufacturers have gone to great lengths to make their equipment quieter. Ask equipment manufactures about the noise levels of their equipment and consider these levels when making your purchase. For example, noise-reducing saw blades can cut noise levels in half when cutting masonry blocks. • Old equipment can be made quieter by simple modifications, such as adding new mufflers or sound absorbing materials. • Old equipment is also much quieter when it is well maintained. Simple maintenance can reduce noise levels by as much as 50%. • Noisy equipment can be sited as far away as possible from workers and residents. Noise levels drop quickly with distance from the source. • Temporary barriers/enclosures(e.g. plywood with sound absorbing materials)can be built around noisy equipment. These barriers can significantly reduce noise levels and are relatively inexpensive. The Major Noise Sources on Construction Worksites On construction worksites there are many different noise sources and these sources exhibit many differing types of noise such as background noise, idling noise,blast noise, impact noise,rotating noise, intermittent noise,howling, screeches and squeals that need to be controlled. 2 L Fortunately, the noise levels of common construction noise sources are well-known. Below are the noise levels of common construction. Equipment Sound Level at Operator Average Range Background* 86 Earth Moving: Front End Loader 88 85-91 Back Hoe 86.5 79-89 Bull Dozer 96 89-103 Roller 90 79-93 Scraper 96 84-102 Grader <85 Truck 96 89-103 Paver 101 100-102 Material Handling: Concrete Mixer <85 Concrete Pump < 85 Crane 100 97-102 Derrick <85 Power Units: Generators <85 Compressors <85 Impact: Pile Driver(diesel and 98 82-105 neum. Pile Driver(gravity,bored) 82.5 62-91 Pneumatic Breaker 106 94-111 Hydraulic Breaker 95.5 90-100 Pneumatic chipper 109 Other Equipment: Poker Vibrator 94.5 87-98 Compressed Air Blower 104 Power Saw 88.5 78-95 Electric Drill 102 a Air Track Drill 113 w S1Wd4i ds Abase Level OSHA at workers ear 90 dB A Day Time Community(at property line) 65 dB A 3 J *British Columbia, "Construction Noise," Workers Compensation Board of BC Bystander exposure to worksite noise is common in construction. Workers are as likely to be exposed from noise generated by other workers or trades, as they are to be exposed to noise generated by their own work. Society of Automotive Engineers* ranked the basic construction equipment in order of noise severity and ranked the equipment by noise severity and proximity to workers and people. The noise levels were measured 50 feet from the equipment. The results of SAE's noise impact ranking(NIR)are presented below. Ranking of 1 is more hazardous than 2. Reviewing the tables,Impact equipment was the biggest noise hazard to operators and workers nearby while Earth Moving equipment exposed a greater number to noise hazards. I NIR by Noise Level&Proximity to People Equipment Rankin Trucks 1 Scrapers I Tractors 1 Back Hoes I Front End 2 Loaders Graders 2 Compactors 2 Cranes 3 Generators 3 Pumps 3 Compressors 3 Concrete 3 Pumps Pavers 3 *SAE,Noise Abatement techniques for Construction Equipment, Cambridge 1979. 4 Effective Practical Solutions to Controlling Noise on Construction Worksites Every construction project is different and constantly changing. Therefore, noise control solutions have to be tailored for the situation. Fortunately, there are a variety of ways by which construction equipment and worksite noise can be controlled. The following is a list of ways to control noise level your worksites. • Quieter Equipment • Modifying Existing Old Equipment • Barrier Protection • Maintenance • Noise Perimeter Zones • Work Activity Scheduling Quieter Equipment A cost-effective way to reduce noise at a construction worksite is to buy quiet equipment. When buying equipment always ask if there is a quieter way of doing the job. All things being equal most contractors would choose a quieter machine or process. Quieter machines or processes can cost more. Manufacturing tolerances are tighter,gears mesh better, quieter cooling fans are used, etc. Because of this, when contractors buy quieter equipment the final determination often depends on whether the noise reduction justifies the extra expense. Looking at this decision another way, if the quieter machine costs $100 more and is 5 dB quieter, the extra cost of$20 per decibel reduced can be considered cheap noise control when compared to cost of establishing a hearing conservation program or medical cost associated with noise induced hearing loss. In addition, equipment in use should be the most suitable for the job. Avoid using equipment that is over-powered and, conversely, avoid using under powered equipment. Whenever possible the quietest equipment alternative should be used. In general, electronic powered equipment is quieter than diesel powered equipment and hydraulically powered equipment is quieter than pneumatic power. Below are examples of ways quieter construction equipment can be introduced into the worksite to reduce noise levels. 5 1 Buying Quiet Saw Blades Problem: Sound level tests on different saw blades under comparable conditions reported sound levels at the operator position between 91 and 97 dB (A). Solutions: L e a saw blade with the greatest number of teeth, of the st width Al Choose a saw blade with gullets as small as possible Choose a saw blade with built-in vibration dampening Results: Sound level tests on different saw blades under comparable Sound Level -dB(A) at conditions Operator Position Tooth Number and Size Cutting lengths of aluminum • 350mm dia. TCT blade, 84 teeth, 3.5mm wide 97 • 350mm dia. TCT blade, 108 teeth, 3.2mm wide 91 Decibel Reduction 6 Vibration Dampening Cutting bricks • 350mm dia. "standard" masonry blade, 20 teeth 94 • 350mm dia. "damped" masonry blade, 20 teeth 84 Decibel Reduction 10 Air Noise "Dummy cut" (run up to 3400 rpm, run down), without cutting • 350mm dia. TCT blade, 84 gullets, 10mm x 7mm 91 • 350mm dia. TCT blade, 108 gullets, 8mm x 4mm 84 Decibel Reduction _ _ 7 Reference: WorkSafe Western Australia Engineering Noise Control Reports No's. ENC-2-93, ENC-4-93 6 Buying Quieter - Diesel Generators Problem: Compressors and generators rank second behind trucks of all onsite construction equipment in terms of daily sound energy produced. I�I� I Newer heavy duty diesel generators are designed to emit low noise and vibration. Some units are up to 15 dB (A) quieter than older diesel-powered generators and quieter than most gasoline sets. The units are totally enclosed and damped, including cooling, exhaust and intake systems. Built-In Solutions: • Improved intake/muffler system • Suitable enclosure with damping cladding • Improved cooling fan Benefits: • Up to 15 dB(A) noise reduction Reference: OR-OSHA, "Guide for Controlling Hazardous Noise on Construction Jobsites," 1/03 Modifying Existing Old Equipment The most common way to reduce the noise levels of common construction equipment is through worksite modifications. Some common worksite modifications consist of retro- fitting existing equipment with damping materials and mufflers. Below are examples of ways common construction equipment and worksites can be modified to reduce noise levels. Modifying - Front End Loader Problem: Typical noise level of 95-102 dB(A) (at operator position with no noise control cab) �x Not actual vehicle from study Solutions: Benefits: Costs: • Noise control cab w/ air conditioning • 82-90 dB(A) • $12-15,000, 60-140 h • Add sound suppression to existing cab • 82-90 dB(A) • $500-1000, 30-80 h • Replace exhaust system • 90-100 dB(A) • $200-400, 2 h Acoustically Treated Noise Level: • 82-90 dB(A) for the operator Reference: U.S. Bureau of Mines, Mining Machinery Noise Control Guidelines, 1983 _ _ Modifying - Pneumatic Nail Gun Problem: Sound level from pneumatic nail guns 94.5 dB(A) at muffler The Pneumatic Nall Gun Cho.AN t PipA:s Tuns —w =�enx inn� rr. rnrai.' I*Valve Plunger 0 Tngger Valve aY hdn OPiston Head 0 sp"M8 canaessa Solutions: • Improving the existing muffler • Incorporating some type of"return" or exhaust line Acoustically Treated Noise Level: • Avg. Sound Pressure Level With Treatment-75.5 dB • Avg. Sound Pressure Level Without Treatment-94.5 dB Costs: Item Retail Cost($) Number Required Cost per Unit($) Viton O-Ring 6.50 0.02 0.13 PVC Housing 1.15 1.0 1.15 8mm Bolt 1.07 1.0 1.07 Hose Plug 1.26 2.0 2.52 Total Goods 4.87 Mass Production 113 Retail Cost 1.62 Estimated Production Cost per Unit 0.50 Total Cost per Unit 2.12 Reference: NIOSH, "Student Presentations - Pneumatic Nail Guns," 2002, http://www.cdc.gov/niosh/topics/noise/CollegeStudents/nailqun/index.html y Excavator Problem: A Warner and Swasey excavator, equipped with a Detroit Diesel 4-53 engine (115 hp@ 2400 rpm) had a overall noise level of 80.5 dB (A) at 50 feet. r 0. *A Al Not actual vehicle from study Solution: In the quietest configuration, with improved exhaust and intake muffling, fan disengaged, and three sound panels around the engine, the overall level was reduced to 71. 5 dB (A). Costs: • Approximately $200-400.00 Reference: U.S. Bureau of Mines, "Noise Abatement Techniques for Construction Equipment," Au ust 1979 10 Barrier Protection An effective way of reducing noise is to locate noisy equipment behind purpose-built barriers. The barriers can be constructed on the work site from common construction building material (plywood,block, stacks or spoils) or the barriers can be constructed from commercial panels which are lined with sound absorbing material to achieve the maximum shielding effect possible. To be effective,the length of the barrier should be greater than its height. The noise source should not be visible and barrier should be located as close as possible to either the noise source or the receiver. Libel level at noise Distance fro=HoNe 0%el level at ri ' se source(dB) receiver to noise source receiver(dB) (feet) 105 5 102 105 10 96 105 20 90 105 40 84 The distance between a noise source and noise receiver can be considered a barrier as well. Doubling the distance from the noise source lowers the noise level by 6dB. Notice in the table above,that as the distance doubles the noise level at the receiver decreases 6 dB (A). Below are examples of ways barriers and enclosures of construction equipment and can reduce noise levels. 11 Creating Noise Barriers Problem: Power pack produced noise levels of 98 dB(A) at 1 m v c+r _1 Solutions: Benefits: • Portable screen built with common Reduced the noise levels from 98 dB(A) to 90 construction material was placed around dB(A) at 1 m a power pack Reference: Worksafe Western Australia www.safetyline.wa.gov.au/pagebin/pg00015O.htm Work Activity Scheduling Work activity scheduling are administrative means to control noise exposure. Planning how noise sources are sited and organized on a work site can reduce noise hazards. Whenever possible, stationary noise sources like generators and compressors should be positioned as far as possible from noise sensitive receivers(workers, schools,residential buildings). When possible, stacks, spoils, and other construction material can be placed or stored around noise sources to reduce the hazard to receivers. Advantage should be taken of the screening effect any nearby object, such as cooling tanks, trailers or temporary site offices. Jobs can be rotated so that exposure time is limited. Transferring workers from a high exposure task to a lower exposure task could make the employee's daily noise exposure acceptable. Administrative controls include activity planning, for example, scheduling pavement breaking operations so as to reduce the number of work site workers exposed. In addition noisy equipment should not be run for periods longer than necessary and should be switched off when not in use. Maintenance Increased attention to maintenance of tools and equipment will reduce worksite noise levels. Maintaining your plant and equipment in good order not only increases its life,but makes it safer to use and quieter. In many cases, a noise hazard will be created or made worse by a lack of maintenance. Parts may become loose, creating more noise because of improper operation or scraping against other parts. Grinding noises may also occur as the result of inadequate lubrication. It is especially important to provide proper maintenance of noise control devices which are added or built into machinery. Loose and worn parts should be fixed as soon as possible. Always check and see if there are any problems starting to appear with a machine or equipment. Check for signs of wear or if the machine's performance is down. Some problems will appear as looseness or increased vibration. Listen for new noises, especially tonal("whining") sounds,repeated impacts, or high frequency("screech") sounds. Also, slipping belts will cause a screech at start-up, while a damaged bearing may appear as a"clunk" during run-down. Ideally, the worksite should have a system in place for checking and servicing the various machines and power tools. Below are examples of ways maintenance and servicing can make equipment safer and quiet. 13 Why machines get noisier with use: 1. Worn or chipped gear teeth—will not mesh properly. The shiny wear marks are often visible on the teeth. I 2. Worn bearings-bearing wear creates vibration and noise, as flat spots or cracks appear in the balls. 3. Slackness between worn or loose parts—causes rattling noises, squealing from slack drive belts, "piston slap" in motors, air leaks, etc. 4. Poor lubrication—causes squeaking noises due to friction or impact noise in dry and worn gears or bearings. 5. Imbalance in rotating parts—imbalances with fan impellers or motor shaft will show up as excess vibration. 6. Obstruction in airways- a build-up of dirt or a bent/damaged piece of metal in an airway or near a moving part, e.g., a bent fan guard, can cause whistling or other "air" type noises. 7. Blunt blades or cutting faces -blunt or chipped saw teeth, drill bits,router bits etc, usually make the job noisier as well as slower. 8. Damaged silencers - silencers for air-driven machines or mufflers for engines may become clogged with dirt, rusted out or damaged, so losing their ability to absorb noise. 9. Removal of a noise-reducing attachment-mufflers, silencers, covers, guards, vibration isolators etc. which reduce noise should never be removed except during maintenance, and then must be replaced 14 Maintenance Problem: A common type of reciprocating air compressor produced 94 dB (A) at 1m Solutions: • Regrinding the valves to improve the seal resulted in a significant noise reduction of approximately 7 dB (A). = Introducing an oil additive gave an extra 1 dB(A) reduction Benefits and Costs: The overall noise reduction due to the re-seating of the valves and the introduction of the oil additive is therefore estimated to be approximately 8 dB (A). This is significant, in that the reduction was achieved at minimal cost, using methods which could be adopted by any skilled maintenance trades person. Acoustically Treated Noise Level: 86 dB(A) at 1m Reference: WorkSafe Western Australia, "Noise Control Case Study: - Reduction of Noise from a Reciprocating Compressor through Maintenance," 1999. http://www..safetyline.wa.gov.au/pagebin/Pg000153.htm I Noise Perimeter Zones Noise perimeter zones(NPZ) are another administrative control to limit exposure to noisy processes or equipment to as few workers as possible.NPZ are areas where noise levels of 90(85?) dB (A)or more are roped off and marked to keep out all workers who don't have to be there. NPZ can be set up using a sound level meter to find the safe distance from the source(90 dB (A)) and the NPZ can be set up at that distance.Noise does not radiate from the source at the same level in all directions.Noise from machinery can be higher in one direction than another because the noise can also be either absorbed or reflected from surfaces it contacts, such as the ground or a wall. Therefore, measurements should be taken at several points in an area where people might be working. Once noise levels that are 90 dB (A) or more are determined, rope off this area as the Noise Perimeter Zone. Exclude all workers who do not need to be in that zone. All workers who need to work within the zone must wear hearing protection. The area can be marked "Noisy Area- Hearing Protection Required" in the same way that a "Hard Hat Area" is marked off. 90 dB Wall 90 dB Noisy Equipment 110 dB (A) The Noise Perimeter Zone is inside the marked off area-where 90 dB Noise Perimeter Zone 90 dB access is restricted and hearing protection is required 90 dB 16 Of course, the entire site can be inside a Noise Perimeter Zone. Then everyone on site must wear hearing protection. Another way for the employer to set up a NPZ is to measure the sound pressure level, using a sound level meter, at a distance from a noise source. Then measure the distance between the noise source and measurement point. Convert the sound pressure to the estimated sound power using the tables below and insert in second table to determine safe distances from the noise source. Table 1: Converting sound pressure measurement to sound power Measured Sound Estimated Sound Power Level (dB) at distance from Pressure Level source with SLM in dB At 5 ft At 10 ft At 15 ft At 20 ft At 30 ft 80 95 101 104 107 110 82 97 103 106 109 112 84 99 105 108 111 114 86 101 107 110 113 116 88 103 109 112 115 118 90 105 111 114 117 120 92 107 113 116 119 122 94 109 115 118 121 124 96 111 117 120 123 126 98 113 119 122 125 128 100 115 121 124 127 130 17 Table 2: Calculating the Noise Perimeter Zone from the sound power Noise Perimeter Zone for Target Control Levels (dB) Estimated 80 dB at Sound Power distance from Level (dB) source 85 dB at 90 dB at distance from distance from source source 90 aft 2 f lft 95 5 f 3 f 2 f 100 9 f 5 f 3 f 105 16 ft 9 f 5 f 110 29 ft 16 ft 9 f 115 52 ft 29 ft 16 ft 120 92 ft 52 ft 29 ft 125 164 ft 92 ft 52 ft 130 292 ft 164 ft 92 ft Conclusion Construction work is inherently noisy. This publication explains why high noise levels on construction worksites are a serious issue that can be controlled. Many of the straight forward controls for common construction activities presented herein can be easily applied because contractors and workers do not have to have an extensive acoustical technical background to quiet equipment. Most often, construction worksite noise problems can be solved by contractors and workers together. 18 Resources Web • Blue Angel Program—www.blauer-engel.de/e-prod/uz/ • Laborers Health and Safety Fund of North America—www.lhsfna.org • MSHA Surface Equipment Noise Control— www.msha.jzov/1999noise/Surface/noisesurface.htm • NIOSH Noise Page—www.cdc.gov/niosh/noisepg.html • Noise Pollution Clearinghouse—www.nonoise.org/ • Noise Conference Website—www.lhsfna.org/btmi/noise—home.html • Noise Management for the Building Industry—www.adfa.edu.au/amec/avu/ • OSHA Noise Page—www.osha-slc.gov/SLTC/noisehearingconservation/index.html • Sound Alert—www.soundalerLco.uk • WISE EARS Campaign—www.nidcd.nih.gov/health/wise/index.htm • WorkSafe Western Australia SafetyLine -www.safetyline.wa.gov.au 19 6/1/2015 Impervious surfaces and urban flooding:USGS Water-Science School I The USGS Water Science School nearer,... Search ,(- Back to previous page Why is this house wearing stilts? This picture shows a house across the street from Peachtree Creek, near downtown Atlanta, Georgia, USA. Question: "Why is the front door 10 feet off the ground?" The answer is: "Because the first floor of the house is 10 feet up." Question: "Why would someone build a house with the first floor so high?" The answer is: "They didn't. In 1977 the house was raised 10 feet because Peachtree Creek flooded the first floor in 1975 and 1976." Question: "Why would someone build a house where it floods?" The answer is: Well,this is harder to answer. One possibility is that when these houses were built in the late 194o's and early 1950's that Peachtree Creek did not flood as often and as severely as it does now. Studies have shown that as development and the amount of impervious surfaces increases in a watershed, streams can flood more often. What a typical flood on Peachtree Creek looks like is shown below in a'before and after"picture from the homeowner's now 10-foot high entryway.The flood picture was taken on May 6, 2003 in the late afternoon when stream stage was about 17 feet. Peak stage that day occurred at 7:30 PM EST in the evening,when the stream stage reached 17.77 feet with a corresponding instantaneous streamflow of 6,96o cubic feet per second. jr- t ' I� Impervious surfaces and flooding If you are not familiar with the term"impervious surface,"this picture will help explain it.As cities grow and more development occurs, the natural landscape is replaced by roads,buildings, housing developments, and parking lots. The metro Atlanta region has experienced explosive growth over the last 50 years, and, along with it, large amounts of impervious surfaces have replaced the natural landscape. http://water.usgs.gov/edu/impervious.html 1/3 611/2015 Impervious surfaces and urban flooding:USGS Water-Science School w#��b Impervious surfaces can have an effect on local streams,both in water Quality and streamflow and flooding characteristics. The picture to the right illustrates how water-quality problems can occur from development. Sediment-laden water from a tributary where construction is taking place is shown entering the Chattahoochee River,just west of Atlanta. Effects of impervious surfaces on streamflow A significant portion of rainfall in forested watersheds is absorbed into ii soils(infiltration), is stored as ground water, and is slowly discharged to streams through seeps and sue. Flooding is less significant in these conditions because some of the runoff during a storm is absorbed into the ground, thus lessening the amount of runoff into a stream during the storm. As watersheds are urbanized, much of the vegetation is replaced by impervious surfaces,thus reducing the area where infiltration to ground water can occur. Thus, more stormwater runoff occurs-runoff that must be collected by extensive drainage systems that combine curbs, storm � a sewers, and ditches to carry stormwater runoff directly to .. streams. More simply, in a developed watershed, much more water arrives into a stream much more quickly, .. resulting in an increased likelihood of more frequent and � more severe flooding.As this picture of Woodward Way, which runs alongside Peachtree Creek shows,frequent flooding causes problems for residents and also the local government which has to clean up the sand deposited on the road, and also had to install the drainage pipe to move water off the roadway back into Peachtree Creek. Can you guess how many baths you can get from a rainstorm? Visit ourActivity Center and find out. P Sources and more information • Effects of Urban Development on Floods Related topics: Rivers and sediment+Rain i ioo-year floods Stormflows 4 Streamflow patterns 4 Measuring streamflow* Floods O&A Impervious surfaces and flooding# A water monitoring site+ High-water marks U.S. Department of the Interior I U.S. Geological Survey http://water.usgs.gov/edLi/impervious.html 2/3 6/1/2015 Impervious surfaces and urban flooding:USGS Water-Science School URL:http://water.usgs.gov/edu/impenious.httnl Page Contact Information: Howard Perlman Page Last Modified:Tuesday, 05-May-2015 08:07:47 EDT http://water.usgs.gov/edLdimpervious.htmi 3/3 LE OmMERciAL ASE LAw INSiDER., JUNE 2010 The Practical,Plain-English Newsletter for Owners,Managers,Attorneys,and Other Real Estate Professionals ............................................................................................................................................................................................................. INSIDE THIS ISSUE Model Lease Clause:Limit Tenant's Right to Quiet Enjoyment..... .. . .. 3 Limit Noise Rights to Protect Recent Court Rulings... .. .. . . .. .. . .4 Right of Quiet Enjoyment for Owner Not Liable for Tenant's Dangerous Condition Center Tenants No Duty to Maintain Common Areas Controlled by Owner In every commercial real estate lease a tenant has the right to quiet enjoyment of the space it rents.While all of your shopping center ten- ants are entitled to enjoy the use of their space,some may own busi- Drop in Commercial Property nesses that generate noise,play loud music,or attract customer lines Values Stalls Rebound or crowds that could interfere with the rights of other tenants that U.S. commercial real estate values fell thrive on providing a quiet atmosphere for their own customers. For in March, pushed lower by a quarterly example,a gym or a restaurant with outdoor seating in a retail center drop in retail and office properties in the has the potential to disturb quieter tenants like small boutiques,yoga biggest metropolitan areas, according studios,or bookstores. to the most recent report from Moody's Investors Service,Inc. In this economy,it is hard for many owners to turn away new ten- The Moody's/REAL Commercial ants,even if their businesses have the potential to create unwanted Property Price Index fell 0.5 percent noise.If you are considering renting to a tenant with a high risk of from February, the second straight (continued on p.2) monthly decline. Prices slid 25 percent from a year earlier and are down 42 percent from the October 2007 peak. Moody's economists see this as con- Draft Favorable Attorneys' Fees tinued bad news for owners because it shows a trend of basically flat prices. Clause Economic growth in the second half An attorneys'fees clause in a commercial real estate lease defines who of 2009 and first quarter of 2010 helped will pay the legal fees for a dispute between the tenant and owner. It is lift prices for offices, warehouses, and critical to draft an attorneys'fees clause in your retail or office build- stores from lows set in October. Prop- ing lease that makes the tenant responsible for any legal fees arising erty sales jumped 50 percent in the first from its potential default and relieves you from paying for the cost of quarter from a year earlier,to$15.4 bil- a lawyer to help you resolve your own issues with it that may arise. lion, according to the report. But the rental market has lagged behind, with Don't give your tenant a strong attorneys'fees clause that it can owners struggling to fill empty space later use as leverage to discourage you from suing it over anything but and raise rents. U.S. office vacancies extremely large disputes. rose to 17 percent in the first quarter, the highest level since 1994, while ask- ing rents fell 0.8 percent, according to New York-based research company An attorneys'fees clause can be triggered by any situation that must Reis,Inc. be resolved by a tenant's or your attorney. For example,if your ten- (continued on p.6) 2 COMMERCIAL LEASE LAW INSIDER® JUNE 2010 BOARD , , , Limit Noise Rights (continued from p. 1) Jacob Bart,Esq. Mark Morfopoutis,Esq. creating noise disturbances,you don't have to limit yourself.Exercise Stroock&Stroock Hartsdale,NY &Lavan LLP Richard F.Muhlebach, your right to negotiate noise rights in the tenants lease and limit its New York,NY CPM,CSM,CRE operations in a way that will provide a beneficial atmosphere for all of Stuart D.Byron,Esq. Woodinville,WA the tenants in your center. New York,NY Neil T.Neumark,Esq. Harvey M.Haber, Dykema QC,LSM Chicago,IL Goldman Sloan Nash Make Noise Determinations in Your Sole Discretion &Haber LLP Neil B.Oberfeld,Esq. Toronto,LL Canada Isaacson Rosenbaum P.C. It is critical for an owner that is negotiating a lease with a loud tenant Denver,Co Abraham Lieberman,Esq. Carole L.Pechi,Esq. that wants to rent space in a center with quiet businesses to address Stumphauzer,O'Toole, Laude Pechi Law LLC noise disturbance issues. "Because leases are contracts,there is no McLaughlin,Co.,LP cry Glen Ellyn,IL reason why you can't negotiate noise rights,"says Kenneth Klassman, &Loughman Co.,LPA y y g g Y Sheffield Village,OH Professor Patrick a Chicago real estate attorney with Horwood Marcus&Berk Char- Marek W.Ludwig,Esq. Randolph General Growth UMKC Law School tered.Klassman has negotiated noise issues with gyms and restau- Properties,Inc. Counsel, Bl rants that want to play music in their outdoor space. "Noise issues can Chicago,IL Blackwell Sanders Kansas City,MO be very difficult to negotiate because owners and tenants will have a Richard C.Mallory,Esq. Robert P.Reichman,Esq. Allen Matkins Leck Gamble Siller Wilk LLP difference of opinion as to what constitutes loud noise,"he warns. Mallory&Natsis LLP New York,NY San Francisco,CA Most leases have a specific right to quiet enjoyment clause,like the Susan Fowler McNally,Esq. MarcL.RiRealty. Gilchrist&Rutter P.C. Mack-Cali Realty Corp. one in our Model Lease Clause: Limit Tenant's Right to Quiet Enjoy- Santa Monica,CA Paramus,NJ ment[Clause,par. 11.But including language in the lease that defines SteStephen J.Messinger,Es Mark A. who has the discretion to determine what Senn,Esq. P g q' Senn Viscano type or volume of noise is Minden Gross LLP Kirschenbiaum P.C. "loud" ' Toronto,ON Canada loud Is one way to limit the scope of your tenant's right so that you Denver,CO Jeffrey A.Moerdler,Esq. Winnifred C.Ward,Esq. can resolve noise issues.You can stay in control of the atmosphere at Mintz Levin Cohn Ferris Downey Brand LLP your center by negotiating the right to determine in your sole dis- Glovsky and Popeo P.C. Sacramento,CA New York,NY cretion whether a tenant is being loud or not[Clause,par. 3]. Editor:Elizabeth Purcell,J.D. Executive Editor:Heather Ogilvie Preempt Noise Disturbances Production Director:Kathryn Homenick When dealing with a typically noisy tenant,location is key,says Director of Operations:Michael Koplin Klassman.Try to negotiate with the tenant as to the location of the Publisher:Jennifer Turney space it will rent in your center,if there is more than one space avail- Editorial Director:Anita Rosepka able that suits its needs.Situating the tenant away from quiet busi- Commercial Lease Lawlnsider(ISSN 0736-0517)is pub- nesses,or putting it in a ground floor space in a multi-level center will lished by Vendome Group,LLC,149 Fifth Avenue,New eliminate getting complaints from tenants both above and below it. York,NY 10010-6823. Volume 28,Issue 14 Soundproofing space can be effective,but costly. Klassman rec- SubscriptionslCustomer Service:To subscribe or for ommends agreeing in your lease to put in soundproofing walls at a assistance with your subscription,call 1-800-519-3692 or go to our Web site,www.vendomegrp.com.Subscription later date in the event that there are more than a specified number of rate:$357 for 12 issues(plus$17 shipping/handling).To complaints per year for excess noise coming from the space.That way, Contactthe Editor:Email:epurcell @vendomegrp.com.Call: Elizabeth Purcell at(212)812-8434.Fax:(212)228-1308. you don't have to spend money initially to solve a problem you may To Place an Advertisement:Please email Sharon Conley, not ultimately have.This also will calm the tenant's fears that it won't sconley @vendomegrp.com,or call(216)373-1217. be able to run its business effectively due to noise issues. Disclaimer:This publication provides general coverage of its subject area. is sold with the understanding that the a publisher is not engaged in rendering legal,accounting, Klassman says that when he is advising clients,the hardest thing or other professional advice or services.If legal advice or is to convey to the owner and tenant that,unlike a purchase and sale other expert assistance is required,the services of a com- petent professional should be sought.The publisher shall agreement,a lease doesn't go away. notbe responsible for any damages resulting from any error, inaccuracy,or omission contained in this publication. @ 2010 by Vendome Group,LLC.All rights reserved.No part of Commercial Lease Law lnsidermaybereproduced, Draft Clause for Compliance with Nuisance Laws distributed,transmitted,displayed,published,or broad- cast in any form or in any media without prior written Designating the hours of operation for a tenant's business is an effee- permission of the publisher.To request permission to reuse this content in any form,including distribution in tive way of curbing noise.You can also prohibit tenants from playing educational,professional,or promotional contexts,or to reproduce material in new works,please contact the (continued on p.4) Copyright Clearance Center at info @copyright.com or (978)750-8400.For custom reprints,permissions,and licensing,please contact Wright's Reprints at 877-652- 5295 or sales @wrights reprints.com. @ 2010 by Vendome Group,LLC.Any reproduction is strictly prohibited. For more information call 1-800-519-3692 or visit www.vendomegrp.com. JUNE 2010 COMMERCIAL LEASE LAW INSIDER® 3 MODEL LEASE CLAUSE Limit Tenant's Right to Quiet Enjoyment The following Model Lease Clause was drafted with the restaurant tenant that wants to have outdoor seating and help of Illinois commercial real estate attorney Kenneth play music may be very different from those for a gym. Klassman.You can adapt it for use in a lease when you need Don't merely outline the tenant's specific allowed use of to scale back a tenant's right to quiet enjoyment and put its space in the letter of intent;draft the lease terms specifi- in negative covenants—such as the neighbor covenant—to tally for that tenant's use of the premises,says Klassman. prohibit the tenant from generating certain noise distur- Show the following noise rights provisions to your banes in the course of its use of the particular space. attorney before adapting them for your own lease with a For example, noise provisions that are effective for a potentially noisy new tenant. NOISE 1. QUIET ENJOYMENT. Provided this Lease is in full 4. NEIGHBOR COVENANT.Tenant further covenants force and effect and no Event of Default then exists, and agrees that it will,at its sole cost and expense: Tenant may peaceably and quietly enjoy the Prem- (a) Operate the Premises in a manner consistent ises without hindrance by Landlord or any person with its location in a Comparable Center includ- lawfully claiming through or under Landlord,subject ing the exercise of methods of crowd control, to the terms and conditions of this Lease and to all security,and the prevention of prospective cus- Superior Leases and Mortgages. tomers congregating in and about the Premises as may be reasonably required by Landlord. 2. WAIVER OF RIGHT TO QUIET ENJOYMENT Tenant shall take all necessary steps to prevent FOR LANDLORD'S ENTRY. If Landlord exercises prospective customers from entering, using, its right to enter Tenant's premises for any purpose congregating in,forming a line,or causing a dis- described in Section [insert#] of this Lease, Tenant turbance in the lobby area ofthe Center or in and hereby waives any claim for damages for any injury around the sidewalk area outside of the Center or inconvenience or interference with Tenant's busi- (the covenants contained herein being hereinaf- ness, any loss of occupancy or quiet enjoyment of ter collectively referred to as the "Crowd Con- the premises,and any other lost occasion thereby. trol Covenants"); 3. NOISE COMPLAINTS.If security concerns or other (b) Use,play,or operate or permitto be used,played, issues or complaints arise with respect to any of the or operated any loudspeaker or sound-making Crowd Control Covenants,the Noise Reduction Cov- or sound-reproducing device in the Premises enants, and/or the Non-Nuisance Covenants, Land- and the Outdoor Seating Area in such manner lord may,upon prior notice to Tenant,assign security and under such conditions so that it does not personnel to the Center's lobby and adjacent areas reasonably interfere with any other Tenant's to facilitate and ensure Tenant's compliance there- right to peaceably and quietly enjoy its prem- with, and Tenant shall reimburse Landlord for the ises,and Tenant shall observe,comply with,and actual costs of such personnel until such concern or adopt such reasonable means and precautions issue is abated. as Landlord from time to time may reasonably request in connection with any of the forego- If Landlord, in its sole discretion determines that in g covenants (the covenants contained herein Tenant is creating a noise disturbance that violates being hereinafter collectively referred to as the the provisions of paragraph 4 below, or if Land- "Noise Reduction Covenants"); lord receives a complaint(s) from another tenant(s) (c) Not do anything or permit anything to be done regarding Tenant's noise level, Landlord will send upon the Premises or the Outdoor Seating Area notice of the violation to Tenant, and Tenant will in any way that creates a nuisance,or which, in have [insert time period] to cure the violation with- Landlord's reasonable judgment,unreasonably out having to provide further notice and cure rights disturbs any other tenant in the Center or the to Tenant. occupants of the neighboring property or injures If Tenant continues to violate the provisions herein the reputation of the Center (the covenants y contained herein being hereinafter collectively after receiving [insert#] such notices for the same referred to a the "Non-Nuisance Covenantsel noise disturbance from Landlord, Tenant will be in breach of the Lease and Landlord may seek appro- (d) Comply with local laws, restrictions, or ordi- priate remedies for such breach, as outlined in Sec- nances regarding noise disturbances,including tion[insert#]of this Lease. [insert citations to local noise ordinances],, .. ., . r.r... ©2010 by Vendome Group,LLC.Any reproduction is strictly prohibited.For more information call 1-800-519-3692 or visit www.vendomegrp.com. 4 COMMERCIAL LEASE LAW INSIDER® JUNE 2010 Limit Noise Rights that in your reasonable judgment the tenant has to commit the same (continued from p.2) the tenant cannot disturb any offense a certain number of times other center tenants is also effec- before it loses its right to notice loud music or making other noise tive[Clause,par.2(c)]. and cure,"says Klassman. during an agreed-upon time frame within those operating hours. For PRACTICAL POINTER: Make sure Keep of mind that you can example,if a restaurant in your that you draft a clause separate modify noise provisions in the center opens at 5 p.m.,you may from the right to quiet enjoyment lease depending upon what kind want to prohibit it from playing provisions making the tenant waive of tenant you are renting to."You music until 7 p.m.,or after quieter its right to quiet enjoyment spe- may want to draw a harder line for cifically for your right of entry to its local tenants than for a national tenants'operating hours are over. space[Clause,par.21. tenant,"says Klassman. "Owners Additionally,most munici- are trying to stabilize their cen- palities have noise restrictions. ters,so they are looking at tenants Klassman recommends includ- Give Right to Notice that they wouldn't have considered ing language in your lease making and Cure three years ago.But a national ten- a loud tenant's operation subject Give your tenant the right to ant will probably win out over a to any applicable federal or local notice of its noise violations and local tenant,unless it has a strong laws,restrictions,or ordinances a set period in which to"cure"— personal guarantee,a great track [Clause,par.4(d)].Not only can that is,comply with the noise pro- record,and good financials,"he you point out to the tenant the visions in its lease. Specify that if adds. noise ordinances that it is violating the tenant causes the same type of if there is a disturbance,but you noise disturbance more than a cer- Insider Source also can tell the tenant that it is in tain number of times,it will be in Kenneth Klassman, Esq.: Norwood Mar- default if you've included that pro- default without the right to cure it cus & Berk Chartered, 180 N. LaSalle St., vision in the lease. [Clause,par. 31. Ste. 3700, Chicago, IL 60601; (312) 606- 3232;kklassman®hmblaw.com. You should also include in You have the choice to require that,to avoid default,the tenant your lease a neighbor covenant www.commerciallease that deals with crowd control does not commit the same exact lawinsider.com issues—such as long customer noise disturbance more than a Search Our Web Site by Key Words: lines at a tenant's business—using set number of allowable times,or right to quiet enjoyment; neighbor provisions that obligate the ten- does not commit any breach of the covenant;notice and cure ant to respect the quiet enjoyment noise restrictions more than a set that you are required to give to number of allowable times. the other tenants at your center "As the owner,you want these [Clause,pars.4(a),(b)].Adding a provisions to be as broad as pos- non-nuisance covenant providing sible,but I think it's fair to say that Owner Not Liable for Tenant's paid to construct a service counter with a trapdoor Dangerous Condition hatch behind it leading to the basement.The service Facts:A restaurant that specialized in tea and tea- counter and trapdoor were approved by the local related merchandise rented space in a building from building department. an out-of-possession owner that had a right under An employee of the tenant injured himself when the lease to access the premises for making structural he fell through the trapdoor after it had been left repairs.Prior to the restaurant's tenancy,there had open.According to the employee,the trapdoor was been no service counter or way to access the base- used constantly by employees for access to the base- ment from inside the space.The restaurant tenant ment,where supplies and some kitchen equipment 0 2010 by Vendome Group,LLC.Any reproduction is strictly prohibited.For more information call 1-800-519-3692 or visit www.vendomegrp.com. JUNE 2010 COMMERCIAL LEASE LAW INSIDER® 5 were located.When the trapdoor was open,there was basis for the trial court to conclude that the owner only a foot-wide margin on either side that employees had created or was responsible for the dangerous had to squeeze around.The tenant had established condition. the practice of employees shouting"trapdoor open- The appeals court also noted that neither the ser- ing"when emerging from and closing the trapdoor. vice counter nor the trapdoor constituted a building The employee sued the owner for his injuries. code violation or were structurally defective,and the The court ruled in favor of the employee. It found owner maintained no control over the leased prem- that the premises were unreasonably dangerous ises.In fact,the lease specifically imposed respon- because of the location of the trapdoor,and that the sibility on the tenant for complying with safety owner had been negligent in permitting the trapdoor requirements in making alterations to the premises. to be installed and used on the premises.The court Therefore,the owner could not be held liable for the found that although the trapdoor itself was not dan- employee's injuries from the trapdoor accident. gerous,it became dangerous because of the way it ■ Baez v.Barnard College,March 2010 was used,which required it to be frequently opened and closed. No Duty to Maintain Common Areas The court determined that the owner was liable Controlled by Owner for 100 percent of the employee's damages,despite Facts:A customer was injured when he fell on ice in the fact that the employee had also been negligent the parking lot of shopping center that consisted of in the way that he had used the trapdoor at the time a several businesses in stand-alone buildings,includ- of his accident.The court did not hold the employee ing a national home improvement tenant.The home liable for his own injuries because his negligence was improvement tenant's lease required the owner and not a substantial factor in causing them.The owner property manager to maintain the common areas appealed. of the property,including providing snow and ice Decision:The appeals court reversed the trial court's removal.Each tenant was required to pay a pro rata ruling. share of common area maintenance costs. Reasoning:On appeal,the owner argued that it had Two years later,the customer sued the home not created the dangerous condition for which it was improvement tenant for negligent maintenance of being held liable.The appeals court pointed out that the parking lot.The customer argued that regard- the owner had no role in designing or constructing less of the fact that the owner and property man- the service counter and trapdoor,which was done ager controlled the parking lot where he had fallen, after the commencement of the tenant's lease.The customers were entitled to the expectation that they only construction work the owner had done was lay- could safely walk from the parking lot to the retail ing the concrete floor and providing for a hatch at the stores in the shopping center,including the home tenants request. improvement store.The home improvement tenant The owner also contended that,as an out-of-pos- asked the trial court for a judgment in its favor with- session owner,it could not be held liable for a non- out a trial.The trial court granted the request,and structural defect.The appeals court agreed with the the customer appealed. owner that a properly functioning trapdoor left open Decision:The appeals court upheld the trial court's by someone under the tenant's control was not a decision in favor of the home improvement tenant. structural defect under the lease. Reasoning:The appeals court disagreed with the "Implicit in the trial court's finding is that some- customer's argument that a tenant in a multi-tenant how,the owner should have required the tenant to shopping center had a duty to maintain the park- remove the counter and trapdoor,which it built ing lot owned by the landlord.The customer claimed to make its business viable,in order to prevent an that a"reasonable invitee"could expect the home employee from accidently falling down because of improvement tenant to maintain the parking area another employee's negligence,"the appeals court where he fell,regardless of whether the owner or noted. But it disagreed with the trial court's opinion. property manager was responsible under the lease Rather,it agreed with the owner that there was no (continued on p.6) ©2010 by Vendome Group,LLC.Any reproduction is strictly prohibited.For more information call 1-800-519-3692 or visit www.vendomegrp.com. 11%Lk l 6 COMMERCIAL LEASE LAW INSIDER® JUNE 2010 Recent Court Rulings (continued from p.5) the shared nature of the parking lot. "To oblige ten- ants to maintain common areas concurrently with sub- removal. owners and property managers would result in sub- r common area maintenance like snow and ice stantially increased costs with little added benefit," remova the appeals court noted. It commented that owners The customer also asserted that the fact that the and property managers already have a great incentive home improvement tenant was located in a stand- to keep the parking areas of their centers free of snow, alone building in the center,with its own parking area ice,and other hazards:A well-maintained parking lot designated by its own cart stands and signs,imposed induces shoppers to patronize the center and moti- a duty on it to maintain the parking area in a reason- vates tenants to pay their CAM fees. ably safe condition,including removing accumula- In this case,it was undisputed that the owner and tions of snow and ice. property manager—who owned,controlled,and were But the appeals court decided that it would not responsible for maintenance of the parking lot—had impose a duty on an individual tenant for snow the duty to the customer.Therefore,the owner and removal from the common areas of a multi-tenant property manager were the proper parties for the cus- parking lot when the owner and property manager tomer to sue.However,because the customer failed had retained and exercised that responsibility under to do so within the limitations period for filing a neg- the lease.Here,the lease required only the owner and ligence lawsuit,he was left without a remedy for his property manager to be responsible for maintenance. injuries.The appeals court concluded that it would The appeals court said that the fact that the home not impose an"unfair and unworkable"duty upon improvement tenant and two of the other retail ten- the home improvement tenant as a result of the cus- ants in the center were located in stand-alone build- tomer's mistake. ings instead of in interconnected stores did not negate ■ Holmes v.Kimco Realty Corp.,et al.,March 2010 Dr(lfting '--S (continued from p.1) ant refuses to pay common area Your tenant may be more will- will help you recover if your ten- maintenance(CAM)costs because ing to agree on a reciprocal attor- ant is in default and you have to it believes that the parking lot is neys'fees clause. "A standard hire or consult an attorney to deal not being properly maintained, retail or office building form lease with the situation or take actions, you must call an attorney to make starts out with the presumption by requiring it to pay for your a phone call or write a letter to the that if the owner has to take any legal costs and its own if you win tenant. action as a result of the tenant's your case. default,the owner is entitled to the Model Language The best possible attorneys ua cost of the fees it has incurred— g g fees clause would make your ten- In the event of litigation relating to ant responsible for all litigation whether it actually goes to court the subject matter of this Lease, in any situation.Your tenant will or just spends time and admin- the nonprevailing party shall reim- istrative efforts in trying to col- burse the prevailing party for all probably not agree to these provi- reasonable attorneys' fees and sions,but you should still attempt lect the money, explains Toronto costs resulting therefrom. to include this language in your real estate attorney Stephen J. Messinger. lease: PRACTICAL POINTER: Be aware Under this typical reciprocal that if you personally write a letter Model Language to a tenant to enforce the lease,the In the event of litigation relating attorneys'fees clause,should a 9 9 to attorneys'fees clause in the lease the subject matter of this Lease, lawsuit occur,the losing party is is not triggered. However, make Tenant shall be responsible for its responsible for paying all of the sure that you charge the tenant for own and Owner's attorneys'fees legal fees—for both parties.An the administrative fee you are enti- and costs resulting therefrom. attorneys'fees clause like this one tled to, which may already be writ- ©2010 by Vendome Group,LLC.Any reproduction is strictly prohibited.For more information call 1-800-519-3692 or visit www.vendomegrp.com. JUNE 2010 COMMERCIAL LEASE LAW INSIDER® 7 ten into the form leases you use for neys'fees to the court's discretion ant upon demand. In the event typical tenants. if there are multiple claims in a Owner brings any summary action lawsuit between you and the ten- for dispossession of Tenant for ant,but you prevail on only some failure to pay rent,Owner's attor- Make Tenant Bear Cost of them. ney's fees and legal expenses shall of Legitimate Claims be added to and included as part While a reciprocal attorneys'fees Model Language clause Where neither party achieves of the rent due and owing by Ten- ityfor will shift the s to the a complete victory on all Lease ant with respect to the periods in ity for litigation costs to the tenant claims,it is within the discretion of default." if you win your lawsuit against it, the trial court to determine which you still will be on the hook for all party—if either—"prevailed on The court denied the own- of the legal fees for the case if you the contract" for the purpose of er's request for attorneys'fees lose—even if you had a legitimate awarding attorneys'fees. because they were"unreason- claim.Try to negotiate lease lan- able."Because it won the case,the guage that relieves you from pay- Keep Fees Reasonable owner had the burden to establish ing the tenant's attorneys'fees if the reasonableness of the fees with Remember that no matter how and to the lease.The owner your claims are"reasonable"or favorable to you your attorneys' regard "equitable."This lease language fees clause is,not all provisions could prove that only$4,045.35 of will limit your costs for justifiable are legally enforceable to col- the$150,000 was owed for legal claims even if the tenant prevails: lect what you have spent on legal work directly related to the lease. The owner labeled the remain- Model Language costs.In most states,courts will der of the amount"overall case Tenant agrees to pay all reason- not award attorneys'fees if they services,"which were services on able attorneys' fees for Owner's are"unreasonable:' litigation, all matters within the reasonable and equitable claims against it, regardless of whether That was the case in a recent including claims against the tenant Owner or Tenant prevails on such lease dispute between a New Jersey that were not related to the lease. claims. owner and tenant that highlights The court stated that the owner owners'need to document—and was not entitled to fees because the Leave Fees Up to the Court distinguish from other costs—the overall case services charges were Sometimes,as a result of bargain- exact legal fees that they incur in g connection with claims against not a reasonable measure of the ing power,a tenant and owner owner's fees for breach of the lease decide to purposely omit an attor- tenants,to prove that the cost is p p y reasonable [Jamy Enterprises,LLC,et al.v. neys .fees clause and let the court Lehmann,October 2009]. decide fees for disputes.However, There,a retail shopping center Always keep in mind that legal some owners and tenants include owner sued its tenant,a food ser- fees must be reasonable and fair the qualification in their attorneys' vices company,for breaching its under the circumstances. fees clause that the court has the lease.The owner won its case and option to decide who will pay fees, filed a motion with the court to Insider Source notes Messinger. collect attorneys'fees,which were Stephen J.Messinger,Esq.:Partner, Min- Model Language nearly$150,000. den Gross LLP, 145 King St.W., Ste. 2100, Toronto, ON, M5H 4G2 Canada; (416)369- In the event legal action is institut- The attorneys'fees clause in 4147;smessinger @mindengross.com. ed by any party to this agreement, the lease stated: "Owner may sue or arising out of the execution of this agreement, the prevailing for and collect any amounts which 9 P 9 www.commerciallease party shall be entitled to receive may be due from time to time as lawinsider.com from the other party a reasonable Owner may elect.All legal fees Search Our Web Site by Key Words: attorney fee to be determined by and expenses incurred by Owner attorneys' fees; legitimate claims; the court. in enforcing its rights under this reasonable fees You can also negotiate a clause Lease shall be deemed Additional that leaves the awarding of attor- Rent and due and payable by Ten- ©2010 by Vendome Group,LLC.Any reproduction is strictly prohibited.For more information call 1-800-519-3692 or visit www.vendomegrp.com. anssi ;s9;e7 anoA peat{ o; mad p OLOOL AN AN 3AV H1313 6bl o-n dnouO 3AOGN3A aA 'u.iaylnoS 906L 'ON 1!wa9d alVd 4 abetsod 'S'fl paepue}S palaosaad Welcome to the Future! 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It's as easy as 1-2-3! 1 —Simply visit www.CommercialLeaseLawinsider.com/UPGRADE 2—Tell us who you are and where to send the PDFs 3— Hit submit We'll do the rest! t Deaths Expected from Delayed Emergency Response Due to Neighborhood Traffic Mitigation Submitted to the City Council of Boulder, Colorado 3 April 1997 Background During the 11 June 1996 City Council Study Session for Boulder's neighborhood traffic mitigation program (NTMP), several members requested additional quantitative information so that they could better understand the issues. In particular, Councilman Mock asked for data that would allow a comparison of the impacts of delayed emergency response time versus the putative increases in neighborhood safety. His question can be answered well enough by considering cardiac arrest emergencies, for which reasonably good data exists, and then making a crude estimate to allow for the other critical emergencies. Data on the following are required: traffic accident deaths, cardiac arrest emergencies and survivals, emergency response times, and delays from traffic mitigation devices. Fairly accurate numbers exist for all of these items. They are certainly accurate enough for reasonable "risk assessment", which often involves far worse vagaries and rough estimates than in the present case. Traffic Deaths in Boulder Transportation staff member Bill Cowern supplied data showing that deaths from traffic accidents for the entire City averaged about 2.8 per year for 1991 through 1996. However, only one death, about 0.17 deaths per year, occurred on streets slated for treatment under the NTMP. So, assuming that this mitigation actually would save lives A i from reduced vehicle speeds, the improvement could not possibly be dramatic. Because the mitigation devices themselves present some direct hazards, they could possibly cause niore deaths by accidents rather then fewer. For discussion purposes, I assume that mitigation city wide would reduce the present traffic death rate on mitigated streets by about 0.1 person per year on average. This is believed to be a generous assumption. Obviously, the 0.1 death per year estimate could be considerably in error. Perhaps the one neighborhood death in the past six years was from some cause that could not be cured by planned mitigation devices; or it could be argued that a death at 13th and College should be included because there may be some traffic mitigation applied there under another program. When lives are at stake, it is best not to make optimistic assumptions, so I do not think it is wise to use an estimate higher than about 0.1 for the assumed lives saved by the NTMP. In any case, doubling or even tripling this number would not change the important conclusions drawn in the last section. Deaths Caused by Delayed Emergency Response from The NTMP From the NTMP planning documents, I estimate that emergency response runs will suffer roughly 14 % delay in a sizable area, or over the whole city, if the program is fully applied to the streets in that area. This amounts to about 30 seconds typically and about one minute or more on long runs. Though the NTMP presently includes a condition that the delays must not exceed 30 seconds for any run, it is obvious from measured delays from individual traffic circles and speed humps that only sparse application of these devices would be possible under this criterion. So, the BFD is being pressured to allow a relaxation of original emergency response delay condition. The analysis presented here shows this move to be ill-advised. Even the original allowance of a maximum of 30 seconds involves an intolerable trade-off - lives will be lost due to a large risk/benefit ratio. Sudden cardiac arrest (SCA, or simply CA) is the most common critical emergency needing prompt intervention. It strikes more than 350,000 people a year in the U. S. ("Sudden Cardiac Arrest", a Communicore publication). Scaled to Boulder, this indicates roughly 140 SCAs per year. About 90% of those treated within two minutes survive; while only about 10% survive if treated after 6 minutes. Survivors have a good long term outlook - about 80% are alive at one year and about 57% are alive at five years. This is impressive because the average age of victims is 65. (However, many victims are much younger, in their 30s and 40s). Some statistics for Boulder roughly confirm the above scaled value of 140 CAs per year. Brad Baker of AMR, Boulder's ambulance service, informed me that they had "worked and delivered", to the hospital, 30 cardiac arrest victims in Boulder in 1996. Regardless of whether AMR or the BFD reached the victim first, both have roughly the same response times. So, the calculated present average survival probability of 30% for Boulder (see Appendix), if naively applied, indicates that the 30 "successful" resuscitations correspond to roughly 100 CAs. However, the calculations assume that defibrillation equipment is always available with the responding vehicle, which is not true at present; so the present success rate may be well below 30%. This consideration, taken by itself, indicates that substantially more than 100 CAs occur in Boulder each year. Also, not all CAs are reported as emergencies because the persons are found obviously dead or are reported too late for successful initial intervention, which further indicates there are considerably more than 100 CA's per year for Boulder. On the other hand, not all of the 30 victims delivered to the hospital survive long enough to be considered true survivors, which, by itself, would indicate fewer than 100 CAs per year for Boulder. What is needed here is the number of CA emergencies that were either reported promptly or that were given CPR along with reasonably quick reporting. These "fortunate" victims would approximately follow the CA survival curve used in the calculations in the Appendix. From the discussion in the previous paragraph, 60 to 80 is a reasonable, perhaps conservative, estimate of the number of good prospects for successful resuscitation. In the Appendix, I have used 60. The final conclusions will not be changed even if these estimates are much in error. The relevant CA survivability curves and the BFD response time curves are fairly well known. This allows a calculation of the number of survivals out of the "fortunate" victims for both the current response times as well as degraded or improved response times, as detailed in the Appendix. The Appendix also has a written confirmation of the calculation procedure from Dr. Irving Weiss, who is a retired math professor and who specializes in statistical analysis. From my estimate of 60 "fortunate" CA victims per year, the calculations in the Appendix indicate that roughly 5.3 additional deaths per year in Boulder can be expected if full neighborhood traffic mitigation is implemented. This assumes that the one minute response time improvement target of the BFD is not accomplished. If their goal is met, only to be negated by the NTMP, then roughly 6.5 additional CA deaths can be expected from the NTMP. I believe the BFD improvement goals are realistic and will be achieved. Therefore, I offer the 6.5 additional CA deaths as the best guess as determined by the present analysis. But what about other time-critical, life-threatening emergencies? I have not been able to find sufficient data on these to make a satisfactory estimate. However, the worst possible assumption would be that there are no additional deaths from response delays for burn victims, heavy traumas, choking children, drowning victims, ruptured appendices, child birth emergencies, shock victims (electric, toxic, etc.), severe asthma attacks, and other critical emergencies. It is lamentable that better data is not kept with respect to these emergencies. As a gross guess, I estimate that at least two additional non-CA deaths per year would result from a one minute degradation in response times, for a total of roughly 8.5 lives per year. Discussion To put the predicted consequences from a fully implemented NTMP in perspective, I note that 8.5 lives per year is three times larger than the usual 2.8 traffic deaths per year for the entire city. Further, these predicted additional deaths are very large compared to the 0.1 life per year assumed to be saved by this program. The present analysis indicates a risk/benefit ratio of 85 to 1, in terms of human lives (property loss risks are ignored here but are probably quite sizable). Over time, 85 additional deaths are predicted from delayed emergency response for each life saved, if any, by the NTMP. Of course, the above comparisons are very rough due to the lack of precise data and the assumptions involved. Assuming a wildly optimistic posture, if the estimate for lives saved by the NTMP is low by a factor of three, giving 0.3 lives saved per year; and if the estimate for the lives lost due to delayed emergency response is high by a factor of three, then only about three additional lives lost per year are foreseen. Even with these rather absurd allowances, nearly 10 lives are predicted to be lost, over time, for each one saved by full implementation of the NTMP. The risk/benefit ratio will be the same in mitigated portions of the city as for the whole city, as long as the mitigation is extensive enough to cause, on average, the same proportional delays in the emergency response curve. However, different models and analyses are needed for projects of limited extent - for example, a few obstructions on a cul-de-sac. Given the large risk/benefit ratios for extensive mitigation, it is likely that such local mitigation also involves significantly increased risk. For the few special situations where obstructive mitigation appears possibly beneficial, the city should conduct the proper engineering studies rather than blindly allowing mitigation projects that might endanger the affected residents. Deaths Expected from Delayed Emergency Response Due to Neighborhood Traffic Mitigation 2 Appendix Cardiac-Arrest Emergencies in Boulder, CO Lives Saved or Lost Versus Emergency Response Times The Basic Data (Page 1) The Boulder Fire Department (BFD) Master Plan contains data on the survival probability for cardiac arrest (CA) emergencies in terms of the time delay before treatment occurs (from textbook data). Histograms of responses of Boulder's fire trucks to emergency calls are also given (the fire department provides the early medical treatment). Along with data for the yearly number of CA emergencies, reasonable estimates can be made for expected survivals not only for the present situation but also for several relevant scenarios, such as delayed responses due to traffic mitigation or quicker responses due to anticipated improvements in equipment and protocol. Pages A3 and A4 are copies from the BFD Master Plan that show the three key curves in Figures 7 and 10 from that plan: (1) the smoothed BFD response histogram (Figure 7); (2) the cumulative arrival time curve (Fig 10), which is simply an integration of the smoothed response histogram; and (3) the survival probability for CA emergencies as a function of time. The survival curve relates to victims who are given defibrillation treatment. This curve does apply to the BFD as they are now purchasing defibrillators. Page A5 shows a spreadsheet and some graphs of the pertinent data. The data in the leftmost 6 columns was scaled from Fig. 10 on Page a A4. There are three additional hypothetical response time data sets, each proportional to the present response data: "0.14 quicker" than present, which amounts to a one minute improvement in the present 90% response time of 7 minutes and is BFD's goal for the near future "0.14 slower" than present, which is an estimate for response delays within and beyond any area effected by full mitigation according to the original Boulder NTMP (eventually, the area effected could be most of the city) "90% within 4 minutes", which is the response-time goal of Boulder's peer cities The hypothetical curves were formed by applying proportional changes to the time axis of the "present" curve. For the mitigation- delayed response curve, a proportional change assumes that the mitigation obstructions are, on average, spread uniformly along the routes. The proportional degradation or improvement is also applied to the roughly one minute time interval between notice of the emergency and leaving the station. While it is appropriate to assume that the "roll out" times will be shorter for the improved response scenario, the mitigation devices will not degrade the roll out times. So, there is a small error in proportionally increasing roll-out times for the degraded scenario. Integrating the Probabilities to Determine the Survivors (Page 2) While there is no arrival time histogram for CA emergencies alone, it is reasonable to assume that the arrival time histogram for CA emergencies is the same as that in Figure 7, which is for all fire and medical emergency calls. To have symbols for the ordinates of the curves in Figures 7 and 10, let F represent the smoothed arrival time histogram of Figure 7, let S represent the survivability curve of Figure 10, let A represent the cumulative arrival time curve of Figure 10. To perform an approximate integration using these curves, we will need some approximate formulas that are well within the accuracy of the data base for the curves. Let X be the number of "fortunate" (Page 2, main text) CA emergencies per year. Since F is the fraction of total arrivals per minute interval at a given arrival time, the number of CA emergencies per year reached within a time interval DT ("delta" T) centered at a given arrival time is DT*F*X. Then, the number of lives saved for the given arrival time period is DT*F*X*S. To carry out the approximate integration over all arrival times, it is convenient to make some substitutions in this formula. Now refer to the graph on Page A5, where a DT of one-half minute is shown. Because the cumulative arrival time curve, A, is simply the integral of F, it follows that DT*F for a given time interval is equal to (AE-AB) for the corresponding time interval. ("E" refers to the end of a time period and "B" refers to the beginning). Further, S expressed in terms of the beginning and ending values is (SE+SB)/2, the average value for the interval. So, the number of lives saved for any given time interval is 0.5*(SE+SB)*X*(AE-AB). For a given number of cases per year, the sum of these formulas for all half-minute intervals from 1 to 10 minutes gives the predicted total number of lives saved per year. The formulas in the rightmost four columns of the spreadsheet are 0.5*(SE+SB)*(AE-AB). The X has been factored out and applied later, as shown in the area just below the column sums. Each column sum is the average survival probability for randomly reported CA emergencies in Boulder for the corresponding arrival time curve. From the discussion in the main text, X=60 is an estimate of the "fortunate" emergencies. This estimate is for the "most probable" case rather than either end of a range of reasonably likely possibilities. The approximate integrations performed here show that roughly 10% of these "fortunate" CA victims are saved or lost by one minute changes in the present 90% response time. L Dr. Irving Weiss has supplied a formal derivation along with a confirmation of the integration procedure (See Page A6). The integration procedure has also been verified by using some simple postulated probability distributions that have obvious results. Deaths Expected from Delayed Emergency Response Due to Neighborhood Traffic Mitigation Response Time Distribution QuickTimeTm and a TIFF(Uncompressed)decompress or are needed to see this picture. Deaths Expected from Delayed Emergency Response Due to Neighborhood Traffic Mitigation Probabilities of Survival and an Engine Arriving QuickTimeT"'and a TIFF(Uncompressed)decompress or are needed to see this picture. i QuickTimeT"and a TIFF(Uncompressed)decompressor are needed to see this picture. QuickTimeT"'and a TIFF(Uncompressed)decompressor are needed to see this picture. Confirmation of the Calculation Procedure - Appendix, Page 6 Boulder, Colorado March 19,1997 Dear Ray: I have checked your method for estimating the probability of surviving a heart attack when treated by the emergency services of the Boulder Fire Department and have found it to be correct. Your use of numerical integration is formalized below. I am using a discrete model rather than a continuous one to avoid curve fitting and to simplify calculations. This equation corresponds to the righthand four columns in your table: "Consequences of Emergency Response on Cardiac Arrest Survival". } To obtain the average or expected number of survivors, E(S), multiply the number of cases, n, by P(S). E(S) = nP(S). Let Q(S) be the probability that one does not survive emergency treatment; ie is a fatality. Then the expected number of fatalities, E(F) is Sincerely yours, Irving Weiss, PhD