HomeMy WebLinkAbout9/15/2020 Item 9, Anthony
From:Susan Anthony <
To:E-mail Council Website
Cc:Purrington, Teresa
Subject:Correspondence for City Council hearing, Sept. 15
Attachments:Letter to City Council re Froom Ranch_9-15-20.pdf
Re: Froom Ranch Specific Plan and Final Environmental Impact Report
To the San Luis Obispo City Council and City Clerk:
Attached in PDF format please find correspondence addressed to the City Council concerning the Froom Ranch Specific
Plan project.
Please distribute copies to the Councilmembers in advance of the hearing on this matter currently scheduled for this
evening, as Agenda Item No. 9.
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
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1
September 15, 2020
By Email
Mayor Heidi Harmon
Members of the City Council
c/o Teresa Purrington, City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA. 93401
emailcouncil@slocity.org
tpurrington@slocity.org
Re: Froom Ranch Specific Plan and Final Environmental Impact
Report
Dear Mayor Harmon and Members of the City Council:
On behalf of Preserve the SLO Life and Los Verdes Park Unit One and Unit
Two Homeowners Associations, this is to request that the City Council take no
action at this time to certify a final EIR and approve the Froom Ranch Specific Plan
(Project), for the reasons presented below.
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 Unit
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,
expressing concern over the adequacy of that document’s analysis of impacts to
biological resources, air quality and human health, noise and traffic. After reviewing
the responses to our and others’ comments in the Final EIR, we sent a letter to the
Planning Commission on August 12, 2020 explaining how those responses did not
meet the standards of adequacy under CEQA for good faith, reasoned analysis in
response to substantive public comments. In both letters, which we incorporate by
San Luis Obispo City Council
September 15, 2020
Page 2
reference here, we asked that the deficiencies we identified be addressed and
corrected before a Final EIR was certified. We now repeat that request, and present
further reasons for it below. As will be seen, the primary concern is mitigation of the
Project’s traffic impacts.
A. Impact fees are insufficient due to a reduction in overall fee-paying
units without a corresponding reduction in the needed improvements.
Mitigation for many of the Project’s traffic impacts would require payment of
impact fees. Where the developer must construct needed facilities before project
occupancy, the developer would be eligible for a credit for costs in excess of impact
fees. (SLOMC, § 4.56.080.) Thus, under the municipal code, the developer will be
ultimately obligated to pay only the amount of the impact fees. This result is also
dictated by the Mitigation Fee Act. (Gov. Code, §§ 66000 et seq.)
Impact fees may only be used to pay for the improvements identified as the
basis of the for impact fees. (SLOMC, § 4.56.090.) The current transportation impact
fees are based on 2019 Transportation Impact Fee Nexus Studies for the Los Osos
Valley Road Subarea and for the Citywide area. (Council Agenda Report, July 2, 2019
available at
https://opengov.slocity.org/WebLink/DocView.aspx?id=94816&dbid=0&repo=Cit
yClerk.)
As CalTrans objected in its comment S.2-2, the Transportation Impact Fee
Nexus Study assumed Froom Ranch Development would generate 567 Peak Hour
Trips, whereas the DEIR now assumes it will generate only 420 Peak Hour Trips, a
reduction of 147 trips that will not be paying into the Transportation Impact Fee
program.1
There is no evidence that this reduction in trips will alter either the need or
plans for infrastructure to be paid for by impact fees. There is in fact evidence that
the same infrastructure improvements will be required. For example, the 2019 Nexus
Study states that “Although there are fewer trips than originally anticipated based on
the preliminary Froom Ranch traffic impact study, the need for infrastructure
contemplated under the fee program is the same.” (Council Agenda Report, July 2,
2019, Packet Page 187.) Furthermore, the EIR does not propose to eliminate any
previously planned transportation improvements.
1 The reduction is actually 143.7 trips because the impact fee study assumes that Froom will
generate 563.7 peak hour trips. (Council Agenda Report, July 2, 2019, appended Los Osos Valley
Road Subarea Transportation Impact Fee Nexus Study, Table 5, LOVR Subarea Trip Rates and Total
Trip Projections, Packet Page 226).
San Luis Obispo City Council
September 15, 2020
Page 3
However, because the Froom project will contain fewer impact-fee paying
units than assumed in the Transportation Impact Fee Nexus Studies, it will not
contribute the expected impact fees; thus, total funding from new development will
not be sufficient to cover those improvements. Mitigation via impact fees is not
sufficient where there is evidence that impact fees will not be sufficient. (Napa Citizens
for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 364;
Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, 785.)
The FEIR claims that the impact fee program will be updated in the future.
(FEIR, p. 8-28. RTC S.2-2.) However, there is no assurance that impact fees would
be updated before this Project pays its fees. For example, the LOVR Subarea fees
were not updated to align development and needed circulation improvements during
the fourteen years from 2005 to 2019. (Council Agenda Report, July 2, 2019, Packet
Page 184.) Furthermore, CEQA is clear that the mere intention to update an impact
fee in the future is not sufficient. (Anderson First Coalition v. City of Anderson (2005) 130
Cal.App.4th 1173, 1188 [insufficient that City intends to update impact fee to include
needed second phase of interchange project]; Gray v. County of Madera (2008) 167
Cal.App.4th 1099, 1121-1122 [no commitment to adequate impact fees].) CEQA
requires that there be a committed, enforceable impact fee sufficient to cover this
Project’s “fair share” of the actual cost to mitigate impacts. (14 CCR, § 15130(a)(3).)
Failure of this Project to pay its fair share of needed mitigation also conflicts
with General Plan Policy 6.1.5, which requires developers to pay a fair share of
needed improvements.
B. Impact fees are insufficient due to the increase in multi-family
residential units.
As CalTrans objected in its comment S.2-3, the City’s Transportation Impact
Fee is based on the assumption that only 130 multi-family residential (“MFR”) units
will be constructed for the Froom Ranch project, whereas the DEIR proposes 174
MFR units. (See Council Agenda Report, July 2, 2019, appended Los Osos Valley
Road Subarea Transportation Impact Fee Nexus Study, Table 5, LOVR Subarea Trip
Rates and Total Trip Projections, Packet Page 226).
Because transportation Impact Fees were set by in proportion to expected trip
generation, other projects are required to pay higher impact fees than they would
have had to pay if all of the Froom Ranch MFR trips had been included in the impact
fee determination. In effect, the Froom Ranch MFR housing will not be paying a fair
share because its impact will be subsidized by other projects. This violates CEQA
because impact fees must cover a fair share to count as mitigation. (14 CCR, §
15130(a).)
San Luis Obispo City Council
September 15, 2020
Page 4
Furthermore, under the Mitigation Fee Act, other projects could decline to
pay this subsidy in view of the lack of nexus and proportionality to their own
impacts, rendering the total fees inadequate to support the planned infrastructure.
Again, the FEIR argues that the impact fee program will be updated in the
future. (FEIR, p. 8-28, Response to Comment S.2-3, referencing Response to
Comment S.2-2.) Again, the mere intention to update an impact fee is not sufficient.
(Anderson First Coalition, supra, 130 Cal.App.4th at 1188; Gray, supra, 167 Cal.App.4th
at 1121-1122.)
C. Mitigation measures fail to specify enforceable impact fees.
As CalTrans objected in its Comment S.2-7, the DEIR fails to identify the
actual fair share mitigation fees, which requires at least a planning level cost estimate
for the needed facilities. The FEIR responds that cost estimates were not required in
the scope of work for the Transportation Impact Summary. (FEIR, RTC S.2-7.)
Regardless of the City’s arrangements with its consultants, CEQA requires that the
method for determining the impact fee and the actual amount of the impact fees be
specified. (Anderson First Coalition, supra, 130 Cal.App.4th at 1188; Gray, supra, 167
Cal.App.4th at 1121-1122.) Without this information, the EIR is informationally
inadequate.
For the Project’s existing and near-term impacts to facilities within the City’s
jurisdiction that are not included in the City’s Transportation Impact Fee program,
the public has no basis to determine what the impact fee may be. For example,
Mitigation Measures TRANS-3, 4, 5, 8, 9, and 18 require that the applicant build
facilities or that the applicant “contributes an appropriate fair share as approved by
the City.” If the cost to build the facility exceeds “the Project’s proportional share”
the Project will receive fee credits or reimbursements. Nowhere do these mitigation
measures provide an enforceable mechanism to exact a definite dollar amount for
needed improvements. Neither the fair share percentage nor the dollar cost of
improvements is specified in the mitigation measures.
Similarly, for the Project’s long-term impacts, the proposed Mitigation
Measures TRANS-26, 27, and 28 address improvements that are not in the City’s
Transportation Impact Fee program. TRANS-26, 27, and 28 provide that the “City
shall verify that the Applicant contributes an appropriate fair share as approved by
the City and that adequate funding is collected to implement these improvements.”
The language of these mitigation measures fail to specify either the fair share
percentage or the dollar cost of the improvements. Furthermore, the language
requiring the City to ensure “that adequate funding is collected to implement these
San Luis Obispo City Council
September 15, 2020
Page 5
improvements” is not enforceable against the Applicant; nor is it enforceable against
the other developers whom the Applicant may argue are responsible for some share
of the costs. In effect, there is no enforceable commitment that these needed
improvements will be funded and constructed.
For those improvements that are included in the Transportation Impact Fee
program that must be constructed prior to occupancy, the proposed Mitigation
Measures TRANS-6, 7, 10, 16, 17, 19, and 20 permit a fee credit or reimbursement if
the Applicant constructs the improvement and the cost exceeds “the Project’s
proportional share,” but without specifying the basis on which that credit or
reimbursement will be determined. An enforceable mitigation measure must specify
the dollar and percentage amount of the “Project’s proportional share.”
For those improvements required to facilities under the jurisdiction of the
County or Cal-Trans that are not in the City’s Transportation Impact Fee program,
the EIR also fails to provide an enforceable payment obligation. Mitigation Measures
TRANS-12 and 25 purport to address needed improvements to the LOVR/Foothill
Blvd. intersection, but would permit the Applicant merely to contribute “an
appropriate fair share to the satisfaction of the County.” The EIR should not leave
that determination to the future discretion of a County employee but should instead
specify that fair share by dollar amount and percentage. Mitigation Measure TRANS-
2 purports to address impacts to Cal-Trans facilities, but, again, it fails to specify the
fair share dollar and percentage terms.
For all of the mitigation that is not included in the City’s Transportation
Impact Fee program, the determination of the actual mitigation impact fee or fee
credit will be left to discussions between the Applicant and City staff or, for some
mitigation, County staff. This violates CEQA’s requirement that the decision-making
body apply its independent judgement and not delegate analysis and mitigation.
(CEQA, § 21082.1(c)(3); Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296,
306-307.)
Furthermore, without knowing the actual cost of the proposed mitigation, it is
impossible for the City or the public to determine that additional or alternative
mitigation is feasible for this project. For example, CalTrans asked that the City
consider alternative mitigation at the LOVR/101 Southbound Ramp in the form of
dual lanes. Even though the FEIR admits that queues will exceed available storage
pockets, the FEIR declines to propose CalTrans’ preferred mitigation. The public is
entitled to know the cost of the proposed and the alternative mitigation to
understand the basis of the City’s refusal.
San Luis Obispo City Council
September 15, 2020
Page 6
D. Recirculation of a revised Draft EIR is required due to new information.
As CalTrans objected in its comments S.2-4 and S.2.5, the DEIR fails to
provide sufficient information to demonstrate the feasibility of proposed mitigation
through signal optimization and through turn pocket extensions in MM TRANS-2.
CalTrans also objected in its Comment S.2-6 that the DEIR fails to establish the
feasibility of proposed mitigation through storage capacity extensions for impacts at
the southbound LOVR/U.S. 101 ramp, suggesting that a two-lane off ramp should
be provided instead. CalTrans also objected in its Comment S.2-7 that the DEIR’s
analysis is inadequate because it is based on out-of-date baseline traffic volumes from
February and March 2016. CalTrans accordingly requested that the analysis be
updated using the 2016 traffic data set.
In response, the FEIR claims that the feasibility of mitigation has been
demonstrated through revisions to the October 24, 2019 Traffic Impact Study, which
originally appeared as Appendix J to the draft EIR. (FEIR, Responses to Comments
S.2-4, S.2-5.) The FEIR further claims that the feasibility of mitigation at the
southbound LOVR/U.S. 101 ramp has been demonstrated in a new technical
Appendix M, and that this Appendix M contains the current baseline data requested
by CalTrans. (FEIR, Responses to Comments S.2-5, S.2-6.)
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 FEIR, 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 and where 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. (14 CCR, § 15088.5(a); Spring Valley Lake Assn. v. City of Victorville
(“Spring Valley”) (2016) 248 Cal.App.4th 91, 108-109; Sutter Sensible Planning, Inc. v.
Board of Supervisors (“Sutter”) (1981) 122 Cal.App.3d 813, 816-818.)
The changes are material. For example, the new Appendix M no longer claims
that queuing impacts will be fully mitigated according to the thresholds of
significance established in the DEIR, which require that there actually be “available
turn pocket capacity” for the 95th percentile queue. (DEIR, App. J, p. 118; DEIR, p.
3.13-59.) The FEIR’s newly provided Appendix M now admits that the 95th
percentile queues will exceed available turn pocket capacity at intersections # 10 and
11 (LOVR/U.S. 101 NB and SB ramps), but that this will somehow be “contextually
less than significant.” (App. M, pp. 9, 11.) In effect, the FEIR obscures the threshold
of significance applied in the DEIR to avoid disclosing the fact that the actual
impacts will in fact be significant. Furthermore, the FEIR refuses to propose the
San Luis Obispo City Council
September 15, 2020
Page 7
mitigation that CalTrans identified as necessary to address the significant queuing
impact at the southbound LOVR on/off ramps. (FEIR, P. 8-29, Response to
comment S.2-6.)
An EIR must clearly identify and apply its threshold of significance. (Lotus v.
Department of Transportation (2014) 223 Cal.App.4th 645,655 [EIR inadequate because it
“fails to identify any standard of significance, much less to apply one to an analysis of
predictable impacts from the project”].) Here, the FEIR either misapplies or changes
the DEIR’s threshold of significance for queuing impacts. This violates the mandate
in Lotus. Furthermore, recirculation is required because either the FEIR is now
disclosing new or more severe significant queuing impacts, i.e., recirculation per 14
CCR, § 15088.5(a)(1) or (2), or because the FEIR is disclosing that the draft EIR’s
identification and application of its threshold of significance for queuing was so
conclusory and inadequate that it precluded meaningful public comment and
response, i.e., recirculation per 14 CCR, § 15088.5(a)(4).
In sum, 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 traffic impacts; because the
new information discloses new significant impacts or substantially more severe
significant impacts; and because the new information discloses feasible mitigation
that would lessen significant impacts but the Applicant declines to implement it. (14
CCR, § 15088.5(a).)
E. Non-disclosure of significant unmitigated impacts
An EIR must identify significant and unavoidable impacts and the City must
adopt findings that identify such impacts. (14 CCR §§ 15126.2(c), 15091(a).) The City
must also separately weigh such impacts in determining whether overriding
considerations justify project approval despite its significant unmitigated impacts. (14
CCR § 150093.)
Adequate mitigation must be fully enforceable. (14 CCR 15126.4(a)(2).) As the
EIR correctly acknowledges in some instances, impacts to facilities not under the
City’s jurisdiction, e.g., County or CalTrans facilities, must be identified as significant
and unmitigated because the City cannot ensure or enforce mitigation. (Tracy First v.
City of Tracy (2009) 177 Cal.App.4th 912, 937-938.) However, the EIR fails to disclose
that some impacts would be significant and unmitigated because the City does not
have jurisdiction to enforce mitigation.
For example, Intersection #10, LOVR/101 Southbound Ramps, is under
Caltrans jurisdiction and the Traffic Impact Study admits that CalTrans must approve
San Luis Obispo City Council
September 15, 2020
Page 8
any mitigation. (DEIR, App. J, p. 151.) The EIR concludes that Mitigation Measure
TRANS-2 is required in order to avoid a significant impact under existing conditions.
(DEIR, p. 3.13-82.) However, the EIR fails to identify the impact as significant and
unavoidable even though the City cannot ensure or enforce the required mitigation.
(DEIR, p. 3.13-88.)
In addition, the EIR concludes that Mitigation Measure TRANS-25 is required
to avoid significant impacts at the County intersection of Foothill and LOVR under
cumulative 2035 conditions and that County approval and coordination is required.
(DEIR, pp. 3.13-110, 3.13-113.) The EIR also concludes that Mitigation Measure
TRANS-26 is required to avoid significant impacts at Intersection # 5, LOVR/Royal
Way, under cumulative 2035 conditions, and that CalTrans approval and coordination
is required. (DEIR, p. 3.13-110, 3.13-114.) However, the EIR fails to identify the
residual impact under cumulative 2035 conditions for any facilities as significant and
unavoidable. (DEIR, p. 3.13-114.)
The failure to identify significant unmitigated impacts and to explain why the
Project is being proposed notwithstanding these impacts in the EIR violates CEQA.
(14 CCR § 15126(c); CEQA, § 21100(b)(2)(A).) The failure to recirculate the draft
EIR in light of significant new information that these impacts are significant and
unmitigated violates CEQA. (14 CCR § 15088.5(a).) The failure to disclose these
impacts as significant and unmitigated in findings violates CEQA. (14 CCR §
15091(a); 15092(b), 15093.)
Conclusion
In conclusion, for the foregoing reasons the City Council should decline to
certify the Final EIR and approve the Project until the foregoing issues are addressed
in a revised and recirculated EIR.
Thank you for your consideration of these concerns.
Most sincerely,
M. R. WOLFE & ASSOCIATES, P.C
Mark R. Wolfe
MRW:sa