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LAND USE PLANNING ® ENVIRONMENTAL ANALYSIS
April 24, 2011
Comments regarding the Deer Creek Village Draft EIR
Submitted on behalf of the following individuals and organizations:
Martin Bennett, Co-'Chair, Living Wage Coalition of Sonoma County
Denny Rosatti, Executive - Director, Sonoma County Conservation Action
Greg Reisinger, Co- Chair, Petaluma Tomorrow
Members of the Petaluma City Council,
This Project has had a complicated evolution, including straddling a
General Plan Update. But that does not justify any relaxation of
substantive and procedural requirements under CEQA. The DEIR is
fatally flawed in several respects. In addition, to the extent that
DEIR revisions reflect either new significant impacts or a worsening
of previously . identified unmitigated significant impacts, then the
appropriate solution is not to simply respond through a Final EIR, but
rather to recirculate the DEIR. Specific comments for response are as
numbered.
The DEIR relies upon an incorrect baseline for analysis.
1 Much of this results from creating an artificial trigger date of 2007
for determining the Project Setting and resulting impacts. The
Baseline is based upon the filing of a Notice of Preparation, which*
occurred in February 2:8 of 2011. This is more than three years after
the baseline selected by the IS /NOP and DEIR.
2 The Notice of Preparation was submitted to the California Office of
Planning and Research (ORR) on March 11 201.0, 6 years after the first
NOR was releasedin 2004. The current NOP /IS noted various potential impacts
with respect to traffic only, in spite of .the fact that the NOP /iS identifies
potential impacts in several other impact areas'and proposed mitigations. The
result is that the mitigations embedded in th.e NOPIS appear severed from
the DEIR process, In iessence,'there are two clusters of m'iti'gations; the first are
included in the Initial Study (and used to screen out further study) while the
second set of mitigations is in the DEIR.
3 This is further complicated by the apparent confusion as to what
other agencies possessed what level of jurisdiction, up to and
including non - existent agencies as having. some level of authority.
The reviewing agency Fist did not identify CalTrans Planning, Housing
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and. Community Development, the Regional WQCB, or the Bay Area Air
Quality Management District as interested Agencies. The Project
Description provided with the, NOP then' provides a Fist of other
agencies that may have approval authority, - including CalTrans, the
Bay Regional Water Quality Control Board, the "Sonoma County Water
Quality Board ", the Dept. of Fish *and Game, and the US Fish and
Wildlife Service (NOP pg 6).
Again there is no reference to the Air Quality Control Board, but the inclusion of
a non- existant "Sonoma County Water Quality Board ".
4 Given the contradictory discussions of regulatory jurisdiction, this
issue should be resolved by modifying the DEIR to provide a comprehensive
list of all interested agencies, including all agencies described under CEQA as
either "Kesponding Agencies" or "Trustee" agencies. Since the NOP /IS
.as circulated conflicts with the CEQA statutes and the2 CEQAnet
posting for the Project, proof of service to.all Responding and
Trustee agencies should be confirmed and disclosed
The DEIR does not consistently relate the Project EIR to the General Plan
Program EIR
5 On another point, the ,NOP Scope of Analysis states this DEIR is a 2nd
Tier EIR to "focus on potential Traffic impact not fully analyzed in
the EIR for the General Plan 202.5 as certified on 4/7/08... "Other
environmental effects relevant to the Project which previously
reviewed in the General Plan 2035 EIR will be evaluated to ensure
adequacy of the prior analysis and adopted, mitigation measures."
Despite this statement, the numbers of references to the 2025 EIR, or
assessment of their current validity, are sparse.
No such discussion is found in the Executive Summary of the DEIR. The
DEIR listing of "Impacts found to be less. than significant" only
refers to the conclusion of the Initial Study that certain issues had
been "scoped" out of the DEIR (DEIR Section IV). The various issue
discussions in ;the Initial Study rarely make reference to the General
Plan EIR, with a s'trikin'g exception relative to Noise impacts.
6 The Initial Study states that the General Plan EIR identified significant
unavoidable impacts at. buildout with respect-to traffic, noise and
future rail service. The Initial Study provides no site- ,specific or
Project- specific confirmation that demonstrates that conclusion is
appropriate in "this case. In fact, without explanation, the DEIR relies upon the
Deer Creek DEIR comments,
April 25, 2011
General Plan Program EIR and acknowledge the significant unmitigated impacts,
but fails to identify a cumulative noise impact as a result.
Yet the Initial Study. states those impacts are not further analyzed in the project
EIR "(Initial Study pg 47).
The General Plan consistency analysis is incomplete and inaccurate.
7 One key Land. Use impact issue is "Conflict with applicable land use
plan, policy, or regulation" with any agency. There is no discussion
of any plans or policies that might be pertinent to the Project or
site, from any jurisdiction other than the City of Petaluma. The
DEIR must include discussion of any applicable plan other than those
of the City.
8 The DEIR also provides an incomplete discussion of what constitutes
"consistency" with the General Plan NOP /IS pg 6). The IS /NOP
describes General Plan consistency as follows:
The General Plan Guidelines published by the State Office of Planning
and Research defines consi,stencyas, "An action, program, or project
is consistent with the General Plan if, considering all its aspects,
it will further the objectives and policies of the General Plan and
not obstruct their attainment." Therefore, the standard for analysis
used in the Initial Study is based on general agreement with the
policy language and furtherance of the policy intent (as determined
by a review of the policy - context). Inconsistency with a policy may
indicate a significant physical impact, but the inconsistency is not
itself an impact. The determination that the proposed project is
consistent or inconsistent with the General and Area Plan policies is
ultimately.the decision of the City of Petaluma. Using this approach,
the following policy consistency discussion provides a detailed
analysis of land use policies of the City of Petaluma's General Plan
2025.
This ignores very specific and accepted practice (consistently
supported by case law) that if a Project is inconsistent with a
policy that is specific in nature, mandatory, and applicable to the
Project, than that one policy inconsistency results in inconsistency
with the General Plan. The vague homogenizing approach described in
the IS /NOP only applies to policies that are general in nature and /or
not mandatory. Since, the entire General Plan consistency review
relies upon that procedural error, the consistency assessment needs
to be redone.
Deer Creek DEIR comments,
April 25, 2011
9 With respect to Land Use, the NOP /IS omits applicable policies such
as 1 -P -10 (re. the location and function of "neighborhood" centers ";
1 -P -12 regarding residential components in mixed use ;.and 1 -P -47
regarding approving projects prior to ensuring infrastructure.
10 With respect to Community Design,,.the NOP /IS omits applicable
policies such as 2 -P -5 regarding the character of key corridors; and
2- P -14 -18 relative to maintaining and strengthening the vitality of
the downtown;
11 With respect to the Natural Environment, the NOP /IS omits Policies
4 -P -2 regarding habitat protection: and*4 -P -8 and 9 regarding
alternative powered
12 With respect to Mobility, the NOD /IS omits 5- P -3, -5 regarding traffic
infrastructure timing; 5 -p -11 regarding additional traffic
mitigations and improvements with respect to specific areas: 5 -P -20
regarding accommodation of existing and planned bike facilities.
This is only a partial list that must be addressed.
Economic Impacts secondary impacts and blighting are inadequate.
This has remained a key consideration for the Project. The potential
for jobs and revenue is challenged by the potential near -term and
long -term impacts upon local businesses, shopping centers and even
City Planning Areas.
13 In that context, the General Plan consistency as regards financial
impacts merits its own discussion. The NOP /IS only considered a
handful of the policies (9 -P -13, 1.5, and 17). The remainder of
policies in the Economic Element of the General Plan is ignored.
14 Some key policies are 9 -P -1 regarding economic sustainability, Policy
9 -P -5 Linking infrastructure adequacy to new projects, 9 -P -12
regarding protecting the downtown businesses, Policy and 9 -P -16
regarding maintaining and expanding existing centers
As noted above, this is not a comprehensive list, but only some of
the more glaring relevant economic policies that received no
consideration.
4
Deer Creek DEIR comments,
April 25, 2011
The Urban Blighting Analysis relies on optimistic and non =e:
data to demonstrate the economic impacts, and even then s
significant near term pressure on local merchants.
15 The DEIR contains two different economic studies, that take profoundly
different approaches and with very different results. The DEIR relies only upon
the newer EPS report, which ignores the internal inconsistency in reports with
respect to economic impacts and any associated blight. The tow reports must
be compare and clearly reconciled.
16 The EPS report "Deer Creek Village Urban Decay Analysis, or UDA,
(DEIR Appendix C) reflects the economic downtown, and concludes that
some financial damage will occur to some trade areas stating that
the. Deer Creek Project, in combination with other "pipeline"
projects "is likely to have a significant impact on'the performance
of existing retail space, potentially creating a conditions conducive
to urban decay for a 3 to 6 year period" (Appendix. C,.pg 3). The
situation is likely to be worse still, because the author of Appendix
C indicated that the most recent data may result in "overly
pessimistic retail sales" predictions (Appendix. C, pg: 20). In
response, the author proposes to use a 10 -year "proxy" as a better
indicator of market conditions.
This approach runs contrary to all other portions of the DEIR that
claim to be using conservative assumptions. In this case, the
10 -year proxy still yielded the potential impacts discussed above.
17 Even worse,.the UDA report appears to misstate the data that produces
the "proxy ". Figure 3 of the U.DA show an actual retail taxable sales
curve using reported data from 2000 to 2009. The data show a steady
decline from 200.5 to 2008, which suggest -a descending line and which
reflects problems beyond the recession.. Yet a sudden upward rise in
retail taxable sales in 2009 . changes the graph, and allows the
"proxy" to show - an even average of retail taxable sales of
approximately $800,000. This curve is central to the subsequent
conclusions and predictions.
18 The only problem is the hopeful uptick in 2009 is itself a made -up
number. The Figure 3 data comes from Table 8 "Petlaluma Historic
Sales Trends" App. C, pg. 21). That table shows reported data for
2000 - 2008, but then describes the critical increase in 2009 as
"estimated -for items where data is not available" (Appendix C, pg.
21, footnote 1). The optimistic rebound of 2009`has no supporting
Deer Creek DEIR comments,
April 25, 2011
documentation in the.entire Appendix C. The number has no
credibility absent documentation and is not substantial evidence
under CEQA.
19 The net picture that emerges is the entire prediction of sales tax
over time (which also affects the impact size and. duration to local
merchants) is produced by averaging over 10 years to produce a more
benign trend line, and even that averaging "proxy" only works by
conjuring up an intake in retail sales for 2009. Remove the 2009 data,
and the curves still look.grim.
20 In closing,, the UBA even in its optimistic assessment (created by
averaging in old data and also adding current data with no support or
documentation) shows a number of years of pressur& upon the local
businesses. The study confirms that the level of competition may
result in closures and urban decay. But that i's looking using
optimistic data. How much worse will it actually be?
21 The economic pressure beyond what the OGE predicts indicates that the
chance of closures and urban decay is that much. greater. This in
turn represents a new potentially significant.i.mpact (requiring..
recirculation) and potential inconsistencies with the General Plan.
The Traffic section of the DEIR is seriously flawedi by.omitted data
and contradictory assumptions.
Section IV -B addresses transportation and traffic. The DEIR takes the
approach that only PM traffic impacts will be used to determine
significant impacts, since the AM peak hour traffic is less than the
PM peak hour (85.3%), and the weekend mid -day volume is only 82.5% of
PM traffic volumes.. Based -upon this the DEER states that PM traffic
"was used exclusively as the basis for review of -potential impacts of
the proposed project
22 The DEIR also notes that while PM peak hour data was generated, that
"similar data was not available " for AM or weekend counts. Since traffic
studies rountinely have to generate or update information, the lack of pre-
existing data is irrelevant; it is the responsibility of the DEIR to obtain that data.
23 This is followed by stating that the economic downturn "would
underestimate" traffic conditions if current data was used (DEIR pg IV -13-1).
The DEIR solution is to use 2007 . as the Base Year (contrary to a baseline
consistent with the filing, of the NOP.
Deer Creek DEIR comments,
April 25,,2014
24 Even if this was appropriate, but several problems come up. The first
is that traffic volumes are a significant part of noise impacts. The
assumption that 2007 levels are the traffic baseline will inflate the
associated noise impacts from traffic. While this might appear to be
a conservative approach, 'it'ignores that noise impact 'is determined,
in part, by the amount of increase over background levels. If a
noise analysis used the current (and presumed lower) traffic data,
the increment of extra noise would increase, raising the potential
for more significant noise impacts than considered by the DEIR.
25 The second is that the DEIR traffic analysis ignores that fact that
impacted PM intersections may also reflect impacted intersections in
the AM period. Those AM traffic flows represent 'a reverse flow from
the PM pattern. As a result, any mitigationsi crafted to address PM
peak impacts may have no effect upon the AM peak impacts. For
example, if the PM stacking distance requires lane modifications,
those will respond to the direction of the traffic flow. Similar
impacts related to the AM reverse flow will not have been considered
or mitigated.
26 For example, the DEIR notes that the intersection of North McDowell
and ProfessionalDrive operates -at LOS F during the PM period.
Moreover, significant stacking issues at the East Washington/ North
McDowell eastbound left turn lane and southbound right -turn lane.
Similarly, at the East Washington /101 northbound-ramp intersection,
the westbound Left =turn 'lane- and the northbound right -turn lane also
experience stacking problems. (DEIR pg. IV.13-12).
27 There is clearly potential significant impact on both intersection and
stacking capacity for the AM flows, and those impacts will will differ from the
PM flows. By ignoring AM flows because the net volume is highest in the PM
period, the DEIR fails to consider that the lesser AM volumes may still trigger
significant impacts that would require additional and distinct mitigations
beyond those proposed by the DEIR.
28 The "Existing plus Pipeline" assumptions for the DEIR traffic
analysis then identify additional PM potentially significant impacts
at the Corona Road intersections with North McDowell Boulevard and
Petaluma Boulevard North. Stacking distance impacts were identified
at Study Intersection 16 and 18 (DEIR pg. IV. As noted above,
the failure.to conduct any AM period studies means that the predicted
reverse flow u'nd'er that scenario is unknown, and any stacking or
Deer Creek DEIR comments,
April 25, 2011
intersection mitigations may be ineffective during the morning flows.
Other issues or defects in the DEIR
29 The DEIR indicates in Appendix. F on Hydrology that the "Property also
appears to be higher than both the Petaluma River and Lynch Creek
500 -year floodplains (App. F, pg 27).
There is no mapping or other substantial evidence supporting such a
conclusion. The very wording of the discussion suggests even the
DEIR consultant is not convinced. Suitable documentation must be
provided.
30 In addition, the EIR should address the issue high tide surges in the
.context of predicted sea level rise around San Francisco Bay. The
Bay Institute had developed detailed projections for sea bevel rise.
The very real potential for flooding during a high' tide storm .event
should be considered.
31 The NOP /IS makes references the approval of a wetland jurisdictional
determination as updated and approved by the Army Corp of Engineers
in 2009 (NOP /IS pg 41). This document should be included in.the DEIR
Appendices.
The IS /NOP as prepared by staff notes *that the Regional Water Quality
Control Board was provided a copy of the Corps delineation,, but the
board has not responded to confirm agreement: The Corps standards for
wetlands and waterways to determine "waters of the United States" is
narrower than the definition of" waters of the State of California"
as determined by the State Water Resources Control Board. A
determination of the Corps does not equate to the same from the
Regional Water Quality Control .Board. This dis-ti'nction must be
reflected in the DEIR and the Regional Water Quality Control Board
can make no presumption regarding acceptance.
32 The reference in the NOP to the RWQCB indicating on August 18 of 2010
that a "final determination of wetlands" was made for the purposes of
the 401 Permit application. The DEIR makes more of this statement
than is appropriate. The "waters of the State" as regulated and
protected by the Regional Water Board include more than wetlands.
In light of the above comments reflecting the significant and serious
flaws .and omissions in the current DEIR, we strongly recommend that the
Deer Creek DEIR comments,'
April 25, 2011
City require that the DER be revised and recirculated as a complete,
accurate and comprehensive Recirculated Draft EIR for public and city
review. Allowing this DER to move on to a mere response to comments in
via an FOR will Leave the city and the public without critical and relevant
information necessary to make a decision about the adequacy of the EIR,
and to make judgments about the. Project's impacts on the environment.
Sincerely,
Scot Stegeman
Deer Creek DEIR comments,
April 25, 2011