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Home My WebLink About1/23/2024 Item 5g, Skanchy Skanchy, Andrew < To:CityClerk; Taylor, Callie Cc:Dietrick, Christine; Tway, Timothea (Timmi); Michael Slater; David M. Fleishman; josh@wcpdev.com Subject: Agenda Item 5.g Attachments:Letter to SLO City Council re Addendum(4066446.1).pdf This message is from an External Source. Use caution when deciding to open attachments, click links, or respond. Please see attached letter to the City Council regarding tonight’s meeting, agenda item 5.g. Thank you, Andrew Andrew M. Skanchy Downey Brand LLP 621 Capitol Mall, 18th Floor Sacramento, CA 95814 916.444.1000 Main 916.520.5412 Direct askanchy@DowneyBrand.com www.downeybrand.com CONFIDENTIALITY NOTICE: This communication from Downey Brand and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Moreover, any such inadvertent disclosure shall not compromise or waive the attorney-client privilege as to this communication or otherwise. If you have received this communication in error, please contact our IT Department at its Internet address (IT@downeybrand.com), or by telephone at (916)444-1000x5325. Thank you. 1 Andrew M. Skanchy askanchy@downeybrand.com 916.520.5412 Direct 916.520.5812 Fax Downey Brand LLP 621 Capitol Mall, 18 th Floor Sacramento, CA 95814 916.444.1000 Main downeybrand.com January 23, 2023 VIA E-MAIL City Council of the City of San Luis Obispo c/o City Clerk E-mail: cityclerk@slocity.org Callie Taylor Associate Planner City of San Luis Obispo E-Mail: CLTaylor@slocity.org Re: Avila Ranch: City Council Consent Item 5.g Dear City Council: On behalf of Avila Ranch Developers, I provide this letter regarding consent item 5.g on your agenda for January 23, 2024. The agenda item is for the City Council to: (1) approve the Final Map for Tract 3089 Phases 2 & 3 for Avila Ranch; (2) authorize the mayor to execute a Subdivision Agreement for Tract 3089 Phases 2 & 3; and (3) approve modification to Mitigation Measure TRANS-11 and a corresponding Addendum to the Avila Ranch Final Environmental Impact Report (FIER). As noted in the resolution, approval of actions numbers 1 and 2 are “statutorily exempt under the California Environmental Quality Act (CEQA)” because the approvals are ministerial actions and were already analyzed, contemplated, and approved as part of the FEIR. Further, action number 3 (modification of Mitigation Measure TRANS-11) is supported by a CEQA Addendum, which is the appropriate CEQA document for post-FEIR discretionary changes that have no new or substantially more severe significant impacts. (See Pub. Resources Code, § 21166; 14 Cal. Code Regs., §§ 15162, 15164.) A comment letter (Letter) regarding this consent item was submitted to the City on January 22, 2024, by Mitchell M. Tsai, on behalf of the Western States Regional Council of Carpenters. The Letter states that it is submitting comments on the FEIR and the Addendum for Avila Ranch, and alleges that further CEQA review is required. As explained herein, the Letter is meritless and demonstrates a misunderstanding of the law and the actions before the City Council. First, although the Letter states that it was submitted to provide comments on the FEIR and the Addendum (Letter, at p. 1), the FEIR is not at issue, as it was certified by the City in 2017, and is not up for re-approval. Further, the time to challenge the FEIR has long-since passed. January 23, 2023 Page 2 Second, the Letter asserts that the proposed modification of mitigation measure TRANS-11 would violate CEQA because “there is substantial evidence to support a fair argument that the project may have significant impacts, requiring a subsequent environmental impact report as a matter of law.” (Letter at p. 8.) The Letter also asserts that “it is settled” that an addendum is reviewed under the fair argument standard. (Letter, at p. 12.) These assertions are both false. Contrary to the Letter’s assertion, an Addendum to an FEIR—as is the case here—is not reviewed under the fair argument standard. Rather, it is well-settled that courts apply a highly deferential test when reviewing an agency’s determination that further environmental review is not required. That is, an Addendum to an FEIR is reviewed under the substantial evidence standard, and will be upheld if it is supported by substantial evidence. (See Save Our Heritage Organisation v. City of San Diego (2018) 828 Cal.App.5th 656, 667.) Further, Public Resources Code section 21166 provides: “When an environmental impact report has been prepared for a project … , no subsequent or supplemental environmental impact report shall be required … unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” The project changes, changed circumstances, and new information referred to in section 21166 only require a subsequent EIR if they involve new significant environmental effects, substantially more severe significant environmental effects, or newly feasible or different mitigation measures which would substantially reduce one or more significant environment effects. (14 Cal. Code Regs., § 15162, subd. (a).) Here, City staff appropriately prepared an Addendum to fully documents and provides substantial evidence that the proposed modification to Mitigation Measure TRANS-11 does not trigger the need for a subsequent or supplemental environmental impact report. For example, the Addendum explains: Mitigation Measure TRANS-11 as updated would be consistent with the City of San Luis Obispo’s Active Transportation Plan. With implementation of Mitigation Measure TRANS-11, the project would continue to reduce impacts identified under TRANS- 11 and AQ-4 to the greatest extent feasible. Implementation of revised timing of a portion of Mitigation Measure TRANS-11 would not change the environmental determination of the identified impacts or other resource sections in the Final EIR. Therefore, no new or more severe impacts would occur beyond what was previously analyzed in the Final EIR. (Addendum, at p. 7.) The Addendum provides ample analysis and evidence that there will be no new or substantially more severe significant impacts as a result of the modification. Indeed, the Addendum notes that January 23, 2023 Page 3 the modification may actually improve transportation safety (i.e., be environmentally beneficial) because it will discourage use of an incomplete bikeway. What’s more, the Letter provides no evidence—only speculation—as to the alleged significant impacts caused by modifying Mitigation Measure TRANS-11. The Letter merely makes conclusory statements that the modification would cause a “new and potentially significant impact in relation to the property owners to the south.” (Letter, at p. 13.) And that “new information suggests the Project may have more impacts.” (Letter, at p. 14.) The Letter provides no factual evidence to support these statements, i.e., there is no substantial evidence, which under CEQA is defined to include: “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (14 Cal. Code Regs., § 15384, subd. (b).) Thus, the Letter fails to provide substantial evidence of a potentially significant environmental effect resulting from the modification. Further, contrary to the Letter’s repeated assertion that the Addendum “provides no evidence” to support its conclusion (see Letter at p. 13), the Addendum provides many pages of evidence doing just that. (See Addendum, at pp. 5-8.) In sum, the Letter misunderstands the City’s proposed actions, is wrong on the law, and seems to wholly ignore City staff’s analysis in the Addendum. Thus, the Letter has no merit and does not warrant any deviation from the City Council’s proposed course of action. Avila Ranch appreciates the City’s ongoing support and cooperation on this vital project that will continue to provide more homes and benefits for the community. Sincerely, DOWNEY BRAND LLP Andrew M. Skanchy cc: Timothea Tway Christine Dietrick David Fleishman Josh Peterson Michael Slater 4066446.1