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Home My WebLink About8/12/2020 Item 2, Anthony Wilbanks, Megan From:Susan Anthony < To:Advisory Bodies Cc:Purrington, Teresa Subject:Correspondence for Planning Commission hearing, Aug. 12 Attachments:Letter to Planning Commissio_Froom Ranch_8-12-20.pdf Re: Froom Ranch Specific Plan and Final Environmental Impact Report To the San Luis Obispo Planning Commission Secretary and City Clerk: Attached in PDF format please find correspondence addressed to the Planning Commission concerning the Froom Ranch Specific Plan project. Please distribute copies to the Commissioners in advance of the hearing on this matter currently scheduled for this evening, as Agenda Item No. 2. I would be grateful if you could acknowledge receipt at your convenience. Thank you very much. ________________________ Susan Anthony, Administrator M. R. Wolfe & Associates, P.C. | Attorneys Land Use | Environmental Law | Elections **PLEASE NOTE OUR NEW ADDRESS** 580 California Street | Suite 1200 | San Francisco, CA 94104 415.369.9400 | Fax: 415.369.9405 | www.mrwolfeassociates.com The information in this e-mail may contain information that is confidential and/or subject to the attorney-client privilege. If you have received it in error, please delete and contact the sender immediately. Thank you. 1 August 12, 2020 By E-Mail Chair Hemalata Dendekar Members of the Planning Commission City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 advisorybodies@slocity.org Re: Froom Ranch Specific Plan–Final Environmental Impact Report Dear Chair Dendekar and Planning Commissioners: Please accept the following comments on the Final EIR for the Froom Ranch Specific Plan referenced above (“Project”), submitted on behalf of Preserve the SLO Life and Los Verdes Park Unit One and Unit Two Homeowners Associations. Preserve the SLO Life is an unincorporated association of San Luis Obispo City and County residents and business owners. Los Verdes Park Unit One and Unite Two Homeowners Associations are California non-profit corporations operating as the homeowners associations for the Los Verdes Park Unit One and Unit Two subdivisions in San Luis Obispo. Members of all three entities live and/or own property in the Project vicinity and will be directly affected by any adverse environmental impacts the Project may foreseeably cause. We previously submitted comments on the Draft EIR on December 23, 2019. Our comment letter, which we incorporate by reference here, pointed out concerns over the Draft EIR’s analysis of impacts to biological resources, air quality and human health, noise and traffic. As discussed below, the City’s responses to these comments as presented in the Final EIR do not meet the standards of adequacy under CEQA for good faith, reasoned analysis in response to substantive public comments. Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1371. Biological Resources The Draft EIR identified several potentially significant impacts to biological resources from construction and operation of the Project. These include permanent August 12, 2020 Page 2 loss of sensitive riparian, wetland, and native grassland habitats, as well as direct impacts to special-status species. By way of mitigation, in nearly all instances, the Draft EIR simply requires that the applicant submit a “Biological Mitigation and Monitoring Plan” to the City for review and approval before grading permits are issued and the final vesting tentative map is recorded. The Plan is meant to incorporate “additional measures or requirements” recommended by the California Department of Fish & Game, the U.S. Fish & Wildlife Service, the Regional Water Quality Control Board, and NOAA Fisheries (aka NMFS), an “specify all mitigation site locations, timing of surveys and activities, species composition, habitat compensation, species avoidance measures, and other required information, including identification of appropriate onsite construction staging locations.” The Plan is to be reviewed by “a qualified Environmental Coordinator/qualified biologist.” Likewise, for impacts stemming from the realignment of Froom Creek, the applicant is to submit a “Froom Creek restoration plan that identifies measures for securing the proposed low-flow channel berm along the stretch of Froom Creek proposed adjacent to the Calle Joaquin wetlands to protect the bank from erosion and prevent migration of the Froom Creek channel into these wetlands.” The Draft EIR concluded that notwithstanding these requirements for pre-construction plan submittals, impacts to biological resources will be significant and unavoidable. We objected that this approach constituted impermissible deferral of mitigation under CEQA. The Final EIR contends that these mitigation measures reflect a level of detail, and commitment to performance standards, that is commensurate with the broad, programmatic nature of the Specific Plan. We acknowledge that when a lead agency is preparing an EIR for a broad planning action such as adoption of a specific plan, development of detailed, site-specific information may not be feasible. This approach does not, however, permit the City to defer an analysis of reasonably foreseeable significant environmental impacts to a later stage of review to avoid addressing those impacts in a first-tier EIR. CEQA Guidelines, §15152(b). While a program EIR allows the lead agency to defer analysis of some of the details of later phases of long-term projects until they come up for approval, CEQA’s information disclosure requirements are not satisfied by simply asserting that analysis will be undertaken at some point in the future. Vineyard Area Citizens for Responsible Growth v City of Rancho Cordova (2007) 40 Cal.4th 412, 431; Santa Clarita Org. for Planning the Env’t v County of Los Angeles (2003) 106 Cal.App.4th 715, 723. Here, the Biological Mitigation Monitoring Plan and Froom Creek Restoration Plan do not meet the requisite requirements for specificity, demonstrated feasibility and enforceability to warrant the proposed deferral of formulation of precise mitigation measures. It is impossible, for example, to gauge whether “additional measures or requirements” recommended by state and federal resource agencies will August 12, 2020 Page 3 be feasible, whether they can be incorporated into the Project’s design, or be enforceable. More importantly, there will be no opportunity for the public, sister agencies, or anyone other than City staff to review the Plans for adequacy before they are approved by an amorphously “qualified” biologist before grading permits are issued and habitat is irretrievably lost. For these reasons, the Final EIR does not adequately respond to comments on the Draft EIR’s analysis and mitigation of impacts to biological resources. Air Quality/Human Health Our comments on the Draft EIR requested a substantive analysis of the potential individual and cumulative health effects to both existing, off-site sensitive receptors and future on-site receptors from exposure to diesel particulate matter (DPM) emissions from heavy trucks and other vehicles traveling to and from the Project site on a regular basis during both construction and long-term operation. In response, the Final EIR simply asserts, without analysis, that operation-related DPM emissions, including those resulting from operation of large commercial delivery trucks servicing the proposed commercial uses, “are expected to be well below SLO County APCD’s thresholds and would not result substantial health risks to onsite receptors from long-term exposure to DPM or other toxic air contaminants.” The Final EIR further asserts, with no factual support, that the Project “does not propose any commercial uses that would result in operational emissions having adverse health effects on residential uses.” Any commercial use that generates diesel truck traffic, which includes virtually any retail operation, has the potential to cause significant cumulative health impacts from DPM emissions, particular to sensitive receptors living near a freeway. Here, there are off-site receptors living near the Project site and LOVR and/or U.S. 101, which is less than 1,000 feet away. These thoroughfares, and the commercial uses operating along them, likely generate DPM emissions that already bring an elevated health risk to residents. Any additional DPM emissions generated by Project construction and operation could be a cumulatively considerable contribution to an already significant cumulative impact. A cumulative risk assessment should be performed. The Final EIR claims that as a result of the California Building Industry Association v. Bay Area Air Quality Management District (2015) court decision, SLO County APCD no longer requires that a Lead Agency prepare a Type B Health Risk Assessment (HRA) as part of the CEQA process. This is misleading. While that court decision held that an EIR need not evaluate the impacts that existing environmental conditions might have on future occupants of a Project, the circumstances here are different. Not only would any new truck traffic generated by the Project potentially August 12, 2020 Page 4 have significant cumulative health impacts on existing off-site receptors, but any future residents of the Project site could be impacted by newly generated DPM emissions caused by the Project’s new commercial components. We are not requesting a Type B HRA per se; rather, CEQA requires the City to evaluate the potential cumulative health risk from adding the Project’s DPM emissions to existing emissions levels in the vicinity. Neither the Draft nor Final EIR accomplish this. Traffic Both we and Caltrans commented on the Draft EIR’s traffic analysis. Our comments included a reasonable request to add tables to facilitate comparison between “Existing Without Project” conditions to “Existing With Project,” or “Future (2025) Without Project” to “Future With project,” or similar tables documenting the differences between development Scenario 1 and Scenario 2 in the year 2025 analysis. The Final EIR declined to include these tables, claiming that “the tables requested by the commenter and provided in the Transportation Impact Study consist of over 100 highly complex tables, many of which are several pages in length. For these reasons, the City has determined that their inclusion in the EIR analysis would diminish the readability of the EIR.” In other words, the Final EIR declines to provide summary tables that would clarify and simplify the over 100 complex tables in the Traffic Study on grounds that doing so would diminish the readability of the EIR. On its face this comment is patently non-responsive, and fails to meet CEQA’s standards for comment responses in a Final EIR. Our other comments on the Draft EIR’s traffic analysis are similar to those of Caltrans. The key concerns that the Final EIR does not address are, first, that there is inadequate evidence to support a finding that impact fees will be sufficient to fund needed improvements when the overall fee-paying unit count has been reduced, and second that there are more multi-family units proposed than assumed for purposes for calculating the appropriate transportation impact fee. The EIR also fails to identify the actual fair share mitigation fees, which requires at least a planning level cost estimate for the needed facilities. Finally, we note that the October 24, 2019 Traffic Impact Study, which appeared as Appendix J to the Draft EIR, contains 2,413 pages. The June 3, 2020 revised Traffic Impact Study, which appears as Appendix J to the Final EIR, contains 2,459 pages. The new Appendix J contains no indication of what has changed through strikeout or underlining, leaving the public to guess at how the City has decided to add 46 pages of new material. The entirely new Appendix M contains 100 pages. These substantial revisions to the technical analyses require recirculation of a draft EIR for comment and response. Recirculation is required because the new technical appendices are significant new information demonstrating that the public was denied an opportunity for meaningful comment and response with respect to August 12, 2020 Page 5 traffic impacts; the new information discloses new significant impacts or substantially more severe significant impacts; and the new information discloses feasible mitigation that would lessen significant impacts but the applicant declines to implement it. (14 CCR, § 15088.5(a).) In conclusion, for the foregoing reasons, the Final EIR does not meet CEQA’s standards for responses to public comment on a draft EIR, nor does it satisfy the disclosure, analysis, and mitigation requirements with respect to biological resources, air quality/human health, and traffic. It also contains significant new information requiring recirculation for additional agency and public review and comment. We therefore respectfully urge the Planning Commission to decline to recommend certification of the Final EIR or approval of the Project at this time. Thank you for your consideration of these concerns. Most sincerely, M. R. WOLFE & ASSOCIATES, P.C Mark R. Wolfe On behalf of Preserve the SLO Life and Los Verdes Park Unit One and Unit Two Homeowners Associations MRW:sa