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HomeMy WebLinkAboutAgenda Bill 1.A-Late15 04/25/2011SHUTE MI -LY WEfNBERGERu_n 396 HAYES STREET, SAN FRANCISCO, CA 94102 T: 415 552 -7272 F: 41S'S 52-5816 www.smwlaw.com April 22, 2011 Via email and hand delivery Heather Hines City of Petaluma Community Development Department 11 English Street Petaluma, CA. 94952. hhines @ci.petlauma.ca.us GABRIEL M.B. ROSS Attorney ross @smwlaw.com Re: Deer Creek Village Project Draft Environmental Impact Report, State Clearinghouse No. 2004090293 Dear Ms. Hines: We are writing on behalf of the Petaluma Neighborhood Association to express our grave concerns about the environmental review of the proposed Deer Creek Village shopping center (the "Project "). The Draft Environmental. Impact Report ( "DEIR ") fails to meet to meet the standards of the California. Environmental, Quality Act ( "CEQA "), Public Resources Code section.21000 et seq. for all of the reasons set out below. Unless the DEIR is extensively revised and recirculated, any approvals made on the basis of its environmental analysis will be unlawful. The essential defect of the DEIR is its persistent failure to provide sufficient analysis of the Project's potential environmental impacts. Because, as the Project's Initial Study admits, the Project will have potentially significant impacts (Initial Study at 4), an EIR.is required. But the DEIR analyzes only traffic and air quality impacts, relying on the Initial Study for all otherimpacts. This gaping omission is unjustifiable and the DEIR offers only shifting, vague explanations. At the same time; the analysis contained in thei DEIR and Initial Study is riddled with flaws of fact and reasoning. Most importantly, the DEIR-completely ignores the Project's serious inconsistencies with the Petaluma General Plan. This Project site is Heather Hines April 22, 2011 Page '2 designated for mixed -use development, but this Project is simply a standard big -box, automobile dependent retail operation. It is not the. truly mixed -use, pedestrian- focused project that the General Plan envisioned and that Petaluma deserves. The DEIR must disclose this inconsistency and consider real alternatives. Moreover, the DEIR assumes that the currently illusory Rainer Avenue Connection will be constructed. This inappropriate assumption many ofthe document's conclusions regarding the severity of the Project's traffic impacts. And in several instances, the DEIR ignores feasible mitigation measures or defers the identification of measures until after Project approval.. All of these errors add up to a deeply flawed document that must be thoroughly revised and recirculated before the City may even consider this ill- considered Project. I. The DEIR Omits Many Impact Analyses and Provides Inconsistent and Inadequate Explanations for this Omission. CEQA requires that an EIR analyze all of a project's impacts. See Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431 -32. The DEIR here, however, analyzes only two impacts: air quality and traffic. The DEIR attempts to justify this approach in two inconsistent ways. First, `it explains its omission of all other impacts by claiming that it is. a "second tier" EIR that relies upon the EIR prepared for the Petaluma General Plan. DEIR at:I -2. This tiering, the DEIR claims, relieves it of any responsibility to consider impacts that were exarnined.in the General Plan EIR. Id. Later, however, the DEIR states that: various impacts were omitted from its analysis because the Initial determined that these impacts were not potentially significant. DEIR at I -3. The combination of these explanations leaves the DEIR's approach entirely unclear. The Initial Study makes clear that the DEIR's dual approaches are both flawed. Although the DEIR claims that it is a "second tier document the Initial Study does not consistently rely on the General Plan EIR. Several of the 'important analysis, such as biological resources and public services, do not even mention the General Plan EIR. There is thus no evidence that the Project's impacts were actually adequately considered in the previous document. The DEIR further claims that the Initial Study found only three potentially significant impacts: air quality, greenhouse gas emission s, and traffic and transportation. DEIR at I -3. The Initial Study, however; finds that several other impacts would be significant in the absence of mitigation measures: See Initial Study at 26 (geology /soils), 36 (hydrology /soils,), 40 (biological resources), 44 (noise), 54 (public services). An EIR SHUT - E, N11 H \I-Y Heather Hines April 22, 2011 Page 3 may not omit discussion of an impact.simply because. mitigation measures could reduce'it to a less- than - significant level.. Thus, according to the Initial Study, the DEIR should have included several further analyses, at least. A careful consideration of the General Plan -EIR is likely to reveal that it does not, in fact, cover the Project's impacts. As discussed in Part VI below, the Project does not meet the General Plan's criteria for mixed -use development. Thus, this Project was not, in fact, included in the General Plan.. The DEIR cannot rely on the General Plan analysis, because that analysis never considered the Project. See Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th'I184, 1217. The.DEIR must be revised to include analyses. of all of the Project's potential impacts. II. The DEIR Fails to Adequately Analyze and Mitigate the Project's Significant Transportation Impacts. A. The DEIR Falls to Evaluate the Project's Traffic Impact During the A.M. Peak Period and. the Weekend Midday Peak Hour. The DEIR fails to fully evaluate the Project's effect on local and regional traffic conditions because it focuses on impacts only during the afternoon, or p.m., peak hour, ignoring potential impacts in the a.m. peak and weekend peak hours. The DEIR explains that the p.m. period was chosen for analysis not because it is the worst traffic period, but because it is supported by the most complete and conservative data , set available for the study area and that similar data was not available for the a.m. and weekend midday peak hours. DEIR at N:BA. The fact that data'do not exist is an inadequate reason for failure to conduct the analysis. CEQA requires that a project's impacts must be "painstakingly ferreted out:" Envir. oninental Planning and Information Council of Western El Dorado County v. County. of El Dorado, 131 Cal.App.3d 350, 357 (1982) (finding an EIR for a general plan amendment inadequate where the document did not make clear the effect on the physical environment). Morning, or a.m., peak hour background traffic volumes and traffic congestion may vary considerably from that in the p.m. peak hour. Unless a project generates no trips or a very low number of trips during the a.m. peak hour, both a.m. and p.m. peak hour traffic levels should be analyzed. Home improvement centers such as Lowe's generate almost as many trips in the a.m. peak hour as they do in the p.m. peak hour. http:Hwww. sand eg_o.y,ov /planning /pdf /tripinanual.odf excerpts attached as Exhibit A. Other Project uses including the fitness center would also generate a significant number SHUTE, MIHAI -Y Heather Hines April 22, 2011 Page 4 of a.m. trips. These trips may cause.greater congestion than the DEIR reports for the p.m. peak at all or some of the studied roadway segimnts and intersections. Similarly, the Project is, expected to generate more. trips, during the weekend midday peak hour than it does during the weekday p.m. peak hour. As the DEIR's traffic appendix notes, the Project would generate 985 trips the evening peak hour and 1,244 trips during the weekend peak hour. DEIR, Final Traffic Analysis at 2. Consequently, the revised EIR must include an analysis of the Project's traffic impacts during the a.m. and the weekend midday peak hours. Without this analysis, its conclusions regarding traffic impacts lack the support of substantial evidence. B. The DEIR Fails to Adequately Mitigate the Project's Significant Traffic Impacts. The DEIR concludes that the increase in trips generated by the Project would result in a significant traffic impact or contribute to a significant traffic impact at several area intersections including: (1) East Washington ,Street/North McDowell Boulevard; (2) Corona Road/North,McDowell Boulevard; and (3) Corona Road/Petaluma Boulevard north. DEIR at IV.B =46, 48, 53. The Project would also result in significant queuing impacts at East Washington Street/North McDowell. Boulevard (southbound right -turn lane). Id. at 50. Finally, the Project, along with., other development in the area, is expected to contribute to significant impacts along certain sections of Highway 101. Id. at IV.B -57. In all of these instances the DEIR states that "no feasible mitigation measures exist and impacts at these locations. would remain significant and unavoidable. Id. The DEIR provides no explanation for its failure to include any mitigation for these significant Project impacts. When an.EIR concludes that a project will have a significant impact, as it does here, CEQA requires the lead agency to adopt all feasible mitigation, even if this mitigation will not reduce the impact to a level of insignificance. CEQA Guidelines § 15126.4(a)(1)(A) (discussion of mitigation "shall. identify mitigation measures for each significant environmental effect identified in the EIR "); see also Woodward- Park Homeowners Ass'n, Inc. v. City of Fresno (2007) '150 Ca1.App,4th 683, 724 ( "The EIR also must describe feasible measures that could minimize significant impacts. "). Mitigation certainly exists, that would reduce the Project's trip generation and such measures would also, therefore, reduce the Project's significant traffic impacts on area roadways, intersections and Highway 101. For example, the..EIR could evaluate the feasibility of reducing the amount of on -site parking, since excessive parking supply can exacerbate problems with traffic congestion: ' In addition, the Project could be required to S H U T l, M 11 -I A LY `0f- ­ \X /EINBERGE=Ri.�_r Heather Hines April 22, 2011 Page 5 contribute to. public transportation in the area, especially those transit lines that serve the Project site (e.g., Sonoma County Transit or the City's para- transit program). Reducing parking and funding public transportation are feasible and effective methods for reducing the Project's significant traffic impacts. C. The DEIR Underestimates the Project's Impact on U.S. Highway 101 As discussed above, the DEIR concludes that the Project, together with trips generated by cumulative development, would have significant impacts on Highway 101. Yet, the DEIR falls short in its analysis of impacts on Highway 101 because it incorrectly assumes that very few of the trips generated by the Project would travel on the freeway. The Project would generate almost :1,000 trips during the p.m. peak hour. DEIR Table IV.B -13. Yet, the DEIR assumes that, at most, 79 (or just 8 %) of these trips would travel on Highway 101. Id (Tables IV.13-6 and IV.13-17). Currently there are no home improvement superstores in Petaluma. See "Most Favor Friedman's Store," Pulse of Petaluma, The Press Democrat, July 1, 2010 available at http:/ /pulse -of- petaluma.blogs petaluma360.com/' 10484 /most- favor- friedman %oE2 %o80 %99s- store / attached as Exhibit B. The closest such stores are in Cotati and Santa Rosa. Consequently, a home improvement superstore, such, as'that proposed by the Project, will draw customers from as far north as the city of Sonoma and as far south as Novato, since neither of these communities have home improvement superstores. (Telephone conversation with P. Francis, April 7, 2011). Inasmuch as Highway 101 is the only north -south freeway within Sonoma County, motorists from these communities will travel on this freeway to access the shopping center. The DEIR's assumption that only eight percent of Project - related traffic would travel on the freeway during the p.m. peak hour is at odds with the reality of the -local market. The DEIR should be revised to use a more realistic projection of freeway usage by Project traffic. At the very least, -- a revised DEIR must include the regional market share assumptions underlying its traffic projections, and must provide evidence and reasoning to justify the assumptions. D. The Project's Cumulative Traffic Analysis Relies on An Inappropriate Baseline. The DEIR's analysis of cumulative transportation :impacts assumes that certain roadway improvements, including the Rainier Avenue Project will be constructed„ The document, however, contains no evidence that these highway projects will be SH'UTE N11NALY L"-. V/ E I N B E R G F f?ia_ra Heather Hines April 22, 2011 Page 6 constructed and operational by the cumulative buildout date.' DEIR at IV.13-26. Rainier Avenue is an east -west arterial connecting eastern institutional, commercial, and residential uses with North McDowell Boulevard. Although the City's General Plan contemplates improvements to this roadway, including freeway. interchange access, this project requires, but has not yet received, Caltrans approval. DEIR at IV.B -7, 26. Nor, as the DEIR makes clear, has the ultimate design of the Rainier Avenue interchange been configured and the full right -of -way for the project has not yet, been .acquired. Id. at IV.13-63. There is simply no evidence that these .roadway improvements will be operational, as the cumulative traffic impact analysis assumes; especially given the severe fiscal constraints currently facing California and local governments. This reliance on the unsupported assumption regarding the Ranier Avenue Project is a fatal. flaw in the DEIR's analysis, because it undermines the accuracy of the baseline. Whether the traffic impacts of a project.have been adequately analyzed in an EIR depends in part on whether the document relies on an appropriate baseline. Here, the DEIR's assumes that the Ranier Avenue Project will be in place, reducing congestion. Thus, the document starts with a baseline level of congestion is lower than it would be without the Ranier Avenue Project. The DEIR then adds the Project- generated traffic to this baseline. The result of that operation which determines the significance of the Project's impact, is also artificially low. The DEIR thus understates the Project's cumulative traffic impact. CEQA does not allow this approach. In the recent case of Sunnyvale West Neighborhood Ass'n. v. City of Sunnyvale (2011) 1190 Cal.AppAth 1351, the Court of Appeal invalidated an EIR that made precisely the same error made here. In that case the City of Sunnyvale had certified an EIR that measured the project's impacts against a baseline of traffic conditions in the year 2020; these conditions assumed a future, scenario where: (1) development had occurred according to the city's general plan, and (2) "numerous roadway improvements in the project area [were] in place by the year 2020 ...." Id. at 1361. In a lengthy analysis, the court held that this approach violated CEQA as a matter of law: "The stature requires the impact of any proposed project to be evaluated against a baseline of existing ' It is impossible to verify the accuracy of :the cumulative traffic analysis because the DEIR does not identify the year of the cumulative analysis. The Petaluma General Plan's planning horizon is 2025. If the DEIR authors relied on a date other than 2025 for the cumulative impact analysis,'it will be impossible to verify planning assumptions and conclusions. S H U "( E M 11—J A LY &--W F IN[31_RGE:R.�.�> Heather Hines April 22, 2011 Page 7 environmental conditions, which is the only way to identify the environmental effect specific to the project alone." Id. (citations omitted) In light of CEQA's mandates, as explained by the Sunnyvale court, the DEIR was clearly required to evaluate the effect that past, present and future land use projects would have on the local and regional transportation system as it exists today. The DEIR must be revised to include this analysis. E. The DEIR Fails to Examine the Project's Impact on Pavement Conditions. Shopping centers require extensive deliveries by heavy -duty trucks. The heavy - duty truck trips generated by the proposed Deer Creek Project (both for construction and for on -going deliveries) will cause incremental damage and wear to area roadways. Yet, with the exception of a cursory discussion of impacts to one roadway -- Lynch Creek Way - -, the DEIR does not address the effect the trucks serving the shopping center would have on pavement conditions. Road condition is an important factor in the overall capacity and operational characteristics of the regional roadway system. Roadways with poor pavement often result in a slowing of traffic as well as a marked increase in the potential for accidents as motorists attempt to avoid.potholes. Sonoma County roads are already notoriously poor, rated worst in the Bay Area for six straight-years according to the Metropolitan Transportation Commission. See The Press Democrat, Watch Sonoma County, Bumpy Roads Ahead for Rural Residents" available at http://www.watchsonomacouilty. com/20 1.0/11 /transportation/bumpy-roads-ahead-for- rural-residents/ attached as Exhibit 3. Due to.state and local budgetary constraints, it is unlikely that funding will be available to adequately maintain state and local roads. The revised DEIR should assess the existing conditions of area roadways and Highway 101 and assess how construction and operation of the Project will impact these highways. If impacts are determined to be significant, the DEIR must identify mitigation (e.g., contributing fees for on -going road maintenance) capable of eliminating or minimizing these impacts. F. The DEIR Fails to Evaluate Whether the Project'Would Result in an Increase in the Potential For Vehicular Collisions The DEIR fails to examine the Project's potential to increase motor vehicle- related accidents. The document identifies the. existing collision history for study area intersections and determines that three intersections currently have collision rates that are more than twice as high as the average. These intersections are: S H U -I - 1-, Nd I H A 0' &-- V! E I \ G' 11 R G, I, R i.i..r Heather Hines April 22, 2011 Page 8 Old Redwood Highway (Petaluma Blvd N.) /Industrial. Avenue- Stony Point Road Intersection Collision Rate IA 3 (State Average rate. 43) Professional Drive/North McDowell Boulevard Intersection Collision Rate .3 .0 (State Average rate .14) East Washington Street/North.McDowell Boulevard Intersection Collision Rate 1.39 (State,Average rate .43) DEIR at IV. B -1.8, 19. In light of the elevated accident rate at these intersections, the DEIR should have analyzed the Project's potential to increase accidents atthese and other area intersections, and along Highway 101. To this end, the revised DEIR should include an accident risk analysis to determine if the level' of safety (in terms of accident rates and severity index) needs improvement due to the increase in Project - related traffic. Inasmuch as the area experiences pedestrian, bicycle and. transit activity, the accident risk analysis must also identify any conflict points between vehicles and any other mode. G. The DEIR Fails to Adequately Analyze and Mitigate Construction- Related Traffic Impacts. The document fails to examine the Project's construction= related traffic impacts. Instead, it, includes a cursory statement that the truck and automobile traffic associated with the 'Project's construction period would, add to the existing traffic volumes along North McDowell Boulevard and Highway 101. DEIR at'IV.B -46. The DEIR then concludes that, because construction - related traffic would be less than the Project trip generation at the time the site is operational, it would. not affect the overall level of service along these roadways, and impacts would be less than significant. Id. The DEIR's logic is flawed. The Project's operational impacts would be significant at certain_ locations and therefore the Project's construction- related operations could also impact traffic conditions. The DEIR makes clear that numerous intersections in the area would operate at unacceptable levels of service with 'the addition of Project - related traffic. See DEIR Tables IV.B -15 and IV.B47 . Consequently, the addition of slow - moving heavy -duty construction equipment and vehicles traveling along these S H U _F Nil I Ki\ L_Y - W INBL RGERrasa Heather Hines April 22, 2011 Page 9 roadways and'Highway 101 certainly has the potential to contribute to localized periods of traffic congestion. Moreover, these impacts cannot be considered short-term since construction is scheduled to occur over al I to 15 .month period. DEIR at IV.13-46. Because the DEIR contains no analysis of the Project's construction- related traffic impacts, its conclusion of insignificance is not supported by substantial evidence and therefore cannot be sustained.. The revised DEIR must describe specifically how nearby streets, intersections and Highway 101 would be- impacted by construction of the Project. III. The DEIR Lacks an Adequate Analysis of the Project's Air Quality Impacts. A. The Project's OperationAt.Air Emissions Appear to Be Unrealistically Low. The proposed Project would include about 350,000 square feet of commercial and retail uses. The DEIR acknowledges that the Project's operational emissions represent the majority of the Project's air quality impacts and-,includes emissions from areas sources (such as fuel combustion from space and waterbeating and evaporative coatings) and mobile sources (such as customer, delivery and employee traffic). DEIR at IV.0 -16. The Bay Area Air Quality Management District's ( "BAAQMD" or "District ") ,June 2010 CEQA Guidelines ( "Guidelines ") contain detailed instructions on how to evaluate and measure air quality impacts from land. development projects. As a starting point, the Guidelines contain screening criteria to determine if the project may have potentially significant impacts. In evaluating the - proposed Project against the BAAQMD screening .criteria, it appears that the DEIR may have substantially underestimated the Project's operational emissions. For example, under the Guidelines an 87,000 square foot "home improvement superstore" is the conservative screening criterion for determining whether the proposed project would result in potentially significant impacts .2 See BAAQMD CEQA Guidelines at 3 -1 —'3 -3, Table.3 -1. Although the proposed Project is about four times larger than the home improvement superstore identified in the Guidelines' screening criteria, the DEIR determines that the Deer Creek Project's increase in emissions would be less than the BAAQMD thresholds of significance. DEIR at IV.C- 2 The BAAQMD developed screening criteria to provide lead agencies and project applicants with a conservative indication of whether the proposed project could result in potentially significant air quality impacts. If f the screening criteria are not met by a proposed project, then the lead agency or applicant would need to perform a detailed air quality assessment of their project's air pollutant emissions. These screening levels are generally representative of new development. on greenfield sites without any form of mitigation measures taken into consideration. Id. SHUTE,Mil - ALY V/ F. INBI:: R�_�:.� Heather Hines April 22, 2011 Page 1.0 24. Specifically, whereas the BAAQMD threshold of significance is 54 pounds per day of ROG and NO, the DEIR determines that the Project-would generate 50 pounds per day of each ofthese pollutants. DEIR at IV.0 =24. We question how such a large project can generate so little air emissions. Unfortunately; neither the DEIR or its air quality technical app_ endix provide the necessary detail to evaluate the. validity of the air quality analysis. The revised DEIR must provide the necessary assumptions relating to each of the pollutant sources (both area and mobile). ,If, as seems apparent, the DEIR preparers omitted certain emission sources our used inaccurate operating assumptions, the air quality analysis must be revised. It is likely that this new analysis will determine that the Project's air quality impacts would be significant. In that event, the revised DEIR must identify feasible mitigation measures capable of minimizing or eliminating these impacts. Finally, because the DEIR determines that the Project's cumulative air quality impacts would be significant (at IV.0 -2.7), it must also identify mitigation measures for these cumulative impacts. CEQA Guidelines § 15126.4. B. The DEIR Relies on an Unrealistically High Threshold of Significance For Evaluating the Project's Carbon Monoxide Impacts. The DEIR inappropriately concludes that the Project would.not result in any local carbon monoxide ( "CO ") -impacts despite the fact that several intersections and Highway 101 would experience extensive traffic congestion upon implementation of the proposed Project. DEIR at IV.13- 46,48,, 50,53, 57 and IV.0 -19. The document asserts that dispersion modeling of CO emissions is only necessary when the total hourly volume of an intersection affected by a proposed project exceeds 44,000 vehicles per hour. DEIR at IV.0 -19. This is an absurdly high standard as no intersection could possibly accommodate 44,000 vehicles per hour. According to a registered traffic engineer, the lane capacity of a freeway is 2,000 vehicles per hour. So, by the DEIR's reasoning, it would take 22 lanes of a. roadway to accommodate 44,000 vehicles in one hour. If each approach at an intersection gets 50% of the green time, then both streets would need 22 approach lanes. Telephone conversation with Tom Brohard, Brohard Engineering Inc, April 8, 2011. The threshold of significance effective means that no imaginable project could ever have a significant impact'related to CO. Use of this standard thus allows the City to avoid meeting CEQA's core requirements of disclosing environmental impacts and mitigating them. The threshold is plainly inappropriate. The DEIR must be revised to evaluate the Project's CO impacts using more reasonable criteria. . SHUT - I., MIHALY , - , V/ E I N B I- R G E Ru_r Heather Hines April 22, 2011 Page 11 C. The DEIR Fails to Identify Adeq uate Mitigation For the Project's Construction - related Air Quality Impacts. The DEIR's approach to mitigation for its significant construction- related air quality impacts suffers from two serious flaws. First, the DEIR fails to identify all feasible mitigation measures as required by CEQA. CEQA Guidelines § 15126.4. Second, it lacks the necessary evidentiary support to ensure that the Project's significant construction- related air quality impacts will actually be mitigated, as required by CEQA. See CEQA Guidelines § 15126.4; see also Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1"011, 1'034. The DEIR concludes that'the Project's construction- related air quality emissions would be significant and therefore proposes certain - mitigation measures. DEIR at IV.C- 21. Specifically, the document recommends the implementation-of the BAAQMD's "basic" air quality measures. Id. The DEIR touts these relatively insubstantial measures in concluding that construction of the proposed Project's impact on air quality is less than significant. DEIR at IV.0 -21. Yet, the DEIR fails to acknowledge that the BAAQMD Guidelines contain an additional list of measures that are recommended to be implemented when a lead agency determines that a' proj ect's construction- related impacts would be significant. See BAAQMD Guidelines at 8 -2, 8 -4. Because the Deer Creek DEIR determines that the Project would result in significant construction- related air quality impacts, it should have recommended the implementation of the District's additional control measures. Id. at 8 -5. The DEIR similarly fails to quantify the emission - reduction potential from each of the mitigation measures it does identify. Consequently, it lacks the necessary evidentiary support for its conclusion that the Project's construction- related air quality impacts would be mitigated to a less than significantlevel. We can find no logical explanation for the document's failure to quantify the .measures' emission reduction potential. Indeed, the Guidelines specifically recommend that emission reductions from control measures be quantified and even provides detailed guidance for such analysis. Id. at 8 -2 through 8 -6. 3 The BAAQMD June 2010 CEQA Guidelines recommend that all projects implement its Basic Construction Mitigation Measures, "whether or not construction- related emissions exceed the applicable thresholds of significance." See-BAAQMD Guidelines at 8 -4. 4 The BAAQMD recommends the quantification ,of aifquality measures and provides detailed guidance in this regard. BAAQMD CEQA Guidelines. at 8 -6 and Appendix B. SHUTS` Nil 11-i &-- - V/ E INBERC.ER��ra Heather Hines April 22, 2011 Page 12 The DEIR must be revised to 'include all-necessary mitigation to minimize or eliminate entirely the Project's construction- related air emissions and provide quantified support for this emission reduction. IV. The DEIR Fails to Adequately Analyze and Mitigate the Project's Impacts Related to Greenhouse Gas 'Emissions. As described in detail below, the DEIR's treatment of the Project's impacts related to greenhouse gas ( "GHG ") emissions is fatally flawed. First, the modeling assumptions used to support the DEIR's analysis are unclear. Second, the DEIR employs an inappropriate threshold of significance for evaluating construction period GHG emission impacts and fails to mitigate those impacts. Third, the DEIR provides an incomplete analysis of greenhouse gas emissions by ignoring black carbon emissions. Fourth, the DEIR fails to provide evidence to demonstrate that Project features and proposed mitigation will effectively reduce related to GHG emissions. Finally, the DEIR fails to analyze recognized mitigation. measures that could reduce the severity of the project's climate impacts. Without 'making substantial modifications to the document and recirculating it for further public comment, approval of the project -would violate CEQA in several respects and would set a dangerous precedent for local governments' CEQA analysis of greenhouse gas emissions. Most importantly, approval would allow the Deer Creek project to proceed without adequately reducing the project's significant contribution to the acute problem of climate change. The .State of California has recognized the enormity of the problem of climate change and has determined that we must reduce emissions of greenhouse gases to their 1990 levels or below. AB .32 and other state legislation have set the state on the path toward those reductions. Nevertheless, we will not achieve those necessary reductions if we- continue to approve new sources of emissions without dramatically reducing or offsetting those emissions. By requiring analysis. of the GHG emissions attributable to each new development project, CEQA provides the best opportunity to ensure that such new development does not undermine our efforts to reduce our existing level of emissions. A. The DEIR's Modeling Assumptions Are Unclear The DEIR uses air dispersion modelingto,predict Project - related GHG emissions. DEIR at IV.0 -23. -However, the DEIR, fails to present a clear description of the modeling assumptions used for the analysis. For example, the DEIR is vague regarding emission reductions applied for certain project features (such as pedestrian and bicycling facilities) that are- incorporated into the modeling process. DEIR at IV.G23 ( "[M]itigation options SHUTE MLHALY &— W E- I N B f_ R G E. R Heather Hines April 22, 2011 Page 13 in the model were used to account for project features that provide walking and bicycling opportunities at the project site. "). Such modeling assumptions must be clarified so that readers and decision- makers may understand how emissions estimates were derived. B. The DEIR Employs an Inappropriate. Threshold of Significance For Evaluating Construction Period GHG Impacts and Fails to Mitigate These Impacts. The DEIR acknowledges that BAAQMD provides guidance regarding the evaluation of GHG - related impacts associated with construction. DEIR at IV.0 -24. This guidance directs project applicants to quantify and disclose expected. construction emissions and to incorporate Best Management Practices ( "BMPs ") as applicable. BAAQMD Guidelines at 8 -7. These BMPs include, but are not limited to, such measures as using alternative fueled construction vehicles /equipment of at least 15 percent of the fleet, using at least 10 percent local building materials, and recycling or reusing at least 50 percent of construction waste. Id. Unfortunately, the DEIR completely ignores the agency's guidance. Instead, the DEIR inexplicably applies the BAAQMD's operational threshold for GHG emissions of 1,100 annual metric tons. DEIR at IV.0 -25. Given the BAAQMD's explicit guidelines for treatment of GHG emissions during construction, the DEIR's approach is inappropriate.. Agency guidance specifies an approach that reduces construction- related impacts through BMPs'regardless of emission levels. Id. By relying on a seemingly arbitrary threshold of significance, rather than following established guidance, the DEIR shows a blatant disregard for actual impacts. In sum, the DEIR must be revised to include applicable BMPs that will reduce.the Project's construction- related GHG emissions. C. The DEIR Underestimates Project GHG Emissions by Ignoring Black Carbon. The DEIR underestimates project'GHG emissions because it fails to account for the project's black carbon emissions. Black carbon, which is a component of soot, is produced by incomplete combustion and is a significant contributor to global warming. Although combustion produces a mixture of black carbon and organic carbon, the proportion of black carbon produced by burning fossil fuels, such as diesel, is much greater than that produced by burning biomass. See Global and Regional Climate Changes Due to Black Carbon, Ramanathan and Carmichael, Scripps Institution Oceanography, March 2008, attached as Exhibit D. Black carbon heats the atmosphere in a variety of ways. First, it is highly efficient at absorbing solar radiation and in .turn heating the surrounding atmosphere. Second, SHu MIHALY \Yf E.1 \_ B E R G E R i.�.r Heather Hines April 22, 2011 Page 14 atmospheric black carbon absorbs reflected radiation from the surface.. Third, when black carbon lands on snow and ice it reduces the. reflectivity, of the white surface which causes increased atmospheric warming as well as accelerates the rate of snow and ice melt. Fourth, it evaporates low clouds. Notably, black carbon is often associated with other aerosols such as sulfates, which. greatly increases its heating potential. Id. Due to black carbon's short atmospheric life span and high global warming potential, reducing black carbon emissions offers an opportunity to .mitigate the effects of global warming trends in the short term. Id. It is estimated that black carbon is the second greatest contributor to global warming behind carbon. dioxide. See id. In developed countries, diesel combustion is the main source of black carbon. Diesel emissions include a number of compounds such as sulfur oxides, nitrogen oxides, hydrocarbons, carbon monoxide, and particulate matter. Diesel particulate matter is approximately 75 percent elemental carbon. See EPA, 2002 Diesel Health Assessment, available at http• / /www.scribd.c61n/doc /1011. 457 /Health- Assessment - Document -for Diesel- Engine- Exhaust -EPA- May - 2002 excerpts attached as Exhibit E. Project construction will require the use of diesel powered heavy duty trucks and construction equipment, and. project operations will also undoubtedly entail diesel emissions generated by trucks making deliveries to businesses in the project area. Thus, it is important that black carbon emissions be addressed as part of a new DEIR for the project. D. The DEIR Does Not Provide Substantial Evidence To Demonstrate That Project Features And Proposed Mitigation Will Be Effective in Reducing The Project's Climate Impacts. CEQA's central mandate is that "public agencies, should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects." Berkeley Keep Jets Over the Bay Comm. v. Bd. of Port Comm'rs (200`1) 91 Cal.App.4th 1344, 1354 (quoting Pub. Res. Code § 21002). CEQA requires lead agencies %to identify and analyze all feasible mitigation, even if this mitigation will not reduce the impact to a level of insignificance. CEQA Guidelines § 15126.4(a)(1)(A) (discussion of mitigation measure "shall identify mitigation measures for each significant environmental effect identified in the EIR "). Mitigation under CEQA can include: (a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the.action and its implementation. S H U 1:„ N 1-1 A Y & V/ F I N 13 I R G C_ R u..r, Heather Hines April 22, 2011 Page 15 (c) Rectifying the impact. by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. (e) Compensating for the impact by replacing or providing substitute resources or environments. CEQA Guidelines § 15370. The effectiveness of a; project's proposed mitigation must be established based on substantial evidence. Gray v. County of Madera (2008)167 Cal.AppAth 1099, 1115 -18 ; see also San Franciscans for Reasonable Growth v. City & County of San Francisco (1984)151 Cal.App.3d 61, 79 (measures must not be so vague that it is impossible to gauge their effectiveness). Here, the document provides quantitative estimates of emission reductions ostensibly achieved by the'project mitigation measures. DEIR at IV.0 -28. It estimates total emission re_ ductions due to mitigation of four percent of the Project's emissions in direct, indirect, and vehicular emissions. Id. Yet neither the text of the DEIR nor Appendix J provides any support, .let alone substantial evidence, for this estimate. The text fails to mention how emission reductions were estimated. Appendix J includes a list entitled "Mitigation Measures Selected" which summarily asserts percent reductions in direct and indirect emissions and an unstated amount 'of reduction in vehicular emissions, but it too fails to explain why the percentages are appropriate estimates. Under CEQA "such a bare conclusion without an explanation of its factual and analytical basis is insufficient." San Joaquin Raptor /Wildlife Rescue Ctr. v. County ofStanislaus (1994) 27 Ca1.App.4th 713, 736. "This requirement enables the decision - makers and the public to make an `independent, reasoned judgment' about a proposed project." Concerned Citizens of Costa Mesa v. 32nd Dist. Agric. Ass'n (1986) 42 Cal. 3d 929, 935 . The DEIR's conclusory analysis does not provide that supporting evidence for the measures relied on to mitigate the project's climate impacts.' E. The Project Neglects Mitigation Measures That Could Further Reduce or Offset Project GHG Emissions. The bEIR acknowledges that project -level and cumulative impacts related to GHG emissions will be s'igni'ficant and unavoidable. ,DEIR -10 through 13 and IV.C- 28. With this significance determination comes CEQA's mandate to identify and adopt feasible mitigation measures that would reduce or avoid the impact. CEQA Guidelines § 151263(a)(1); see also Woodward Park, 150 Cal.App.4th at 724 ( "The EIR also must SHUT L, M I Id A LY Heather Hines April 22, 2011 Page-16 describe feasible'measures that could minimize significant impacts. "); Berkeley Keep Jets Over the Bay Comm., 91 Cal.AppAth at 1'354 ( "[P]ublic agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects." ) (quoting Pub. Res. Code § `21002). Accordingly, CEQA requires lead agencies to identify and analyze all feasible mitigation, even if this mitigation will not reduce the impact to a level of insignificance. CEQA Guidelines § 15126.4(a)(1)(A). Here, not only does the DEIR fail to identify all feasible measures available, it also fails to propose mitigation measures identified specifically as appropriate for reducing GHG emissions at this project site by the air quality consultant for this Project. DEIR Appendix J -3 at "Mitigation Measures Selected." For example, the report recommends measures to reduce solid waste related GHG emissions. Id. Yet, the DEIR entirely ignores this measure and fails to include it as part of Mitigation Measure AQ. -4. Given' that the measures identified in Appendix J -3 were incorporated into the model to estimate expected emission reductions, the DEIR's failure to identify. in those mitigation measures means that the model has overestimated the'reduction that will be realized, and underestimated the Project's actual impact. This error must be corrected. In addition, the DEIR fails to propose a variety of mitigation measures identified by other agencies and CEQA practitioners as feasible mitigation that would reduce Project emissions or offset those emissions by reducing emissions elsewhere. Several sources of GHG emission mitigation measures are readily available on the Internet. See, e.g., CAPCOA; CEQA and Climate Change, App. B,, excerpts. attached as Exhibit F; California Department of Justice, The California Environmental Quality Act: Addressing Global Warming Impacts at the Local Agency Level, available at <http: / /ag.ca. gov/ glQbalwartning/ pdf /GW_mitigation_measures.pdf>, attached as Exhibit G; Governor's Office of Planning and Research, CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act (CEQA) Review, available at <http : / /www.opr.ca. gov /cega /pdfs /june08- cega.Pdf>, attached as Exhibit H; Sacramento Metropolitan Air Quality Management District, Draft GHG Measures, available at < http:// www. airquality. org/ climatechange/ AQM,DGuidanceForGHGReduction .pdf>, excerpts attached as Exhibit I. Examples of:measures that the City has not included the DEIR include the following: SHUTF, N11'IHAI -Y & E I\BLRGE Ru-v Heather Hines April 22, 2011 Page 17 • Ensure that public transportation will serve the site, by constructing bus stops or other facilities and funding the transportation agency to include site on routes if necessary. Ensure that shuttle service to mass transit uses low- emission, alternative fuel vehicles. • Require use of a catalyzed diesel particulate filter on both new and existing diesel engines. Because black carbon is a component of diesel particulate matter, strategies that reduce particulate matter will also reduce black carbon. Require the Project to minimize and recycle construction- related waste. • Requiring the Project to generate all or a portion of its own power through alternative means, such as photovoltaic' arrays. • Require the Project to generate all or a portion of its own power through alternative means, such as photovoltaic arrays. • Use salvaged and recycled- content materials for building, hard surfaces, and non -plant landscaping materials. Use the combination of construction materials with the lowest carbon footprint. Use passive heating, natural cooling, and solar hot water systems. • Construct the most energy-efficient buildings possible, to decrease heating and cooling costs. • Require the use of only Energy Star heating, cooling, and lighting devices and appliances. • Prohibit the use of incandescent light bulbs for interior lighting. • Provide prioritized parking for electric and hybrid vehicles. • Charge employees for parking and subsidize alternative transportation. • Reduce available parking. • Require the use of "cool pavement" ihat.re fleets more solar energy. Such pavement can. markedly reduce heat islands, have been used ,effectively in California and SHUTF,MIHALY \X %l_INBFRGI -Ru_r, Heather Hines April 22, 2011 Page 1.8 elsewhere. In fact, new building standards in California, called "CalGreen ", will require use of such pavement in certain instances. • Purchase "green electricity from solar, geothermal, wind, or hydroelectric sources through green tags. • Require vehicle fleets operated by commercial occupants of project buildings to be composed of low emission and alternative fuel vehicles. All of these measures would,result in direct reductions in emissions that would otherwise be attributable to the Project. In addition, through a combination of other on- site and off -site measures, the agency could require all aspects of the Project to be "carbon neutral." For example, the City could also establish a mitigation fee program to fund GHG emission reduction or sequestration projects to offset emissions from this project and other projects in the City. The fee could be used to fund a wide variety of emission reduction or sequestration projects in the City. By funding local emission reductions, such a program would reduce GHG emissions, while providing local side benefits, including reducing co- pollutants generated along with GHGs, such as ozone precursors and particulate matter, and generating local "green" jobs. Another important aspect of such mitigation. would be the adoption of an off -set requirement for any reductions that could notbe achieved _directly. CEQA specifically envisions such offsets for the mitigation of GHG emissions. CEQA Guidelines § 15126.4(c)(3).( "Measures to mitigate the significant effects'of greenhouse gas emissions may include ... [o]ff -site measures, including offsets that are not otherwise required "). Emissions could be offset either through financial contributions to sustainable energy projects or through the purchase of carbon credits. Such programs are increasingly common and raise no issue of infeasibility. V. The EIR Fails to Adequately Analyze and.Mitigate the Project's Impacts on Biological Resources The DEIR's treatment of potential impacts to the site's biological resources is inadequate because (4) it fails to adequately analyze impacts: to jurisdictional wetlands and special status species and (2) it defers identification of measures to mitigate those impacts. The DEIR'relies on an Initial Study prepared for the Project in March 2010 to conclude that project - related impacts to biological resources would be less -than- significant. DEIR at IV.A -1. However, the lack of analysis in the DEIR is not justified by the analysis provided in the Initial Study. S NI U T 171 Nil 11-1 <\ LY Heather Hines April 22, 2011 Page 19 The proposed project is located on undeveloped property containing .81 acres of wetlands and other jurisdictional waters, including vernal pools. DEIR at III -28. In addition, as the Initial study for the proposed project acknowledges, despite the site's disturbed nature, the project site has the potential to support four special - status species known to occur in the area and that are known to use similar habitats in the region. Initial Study at 42. Despite the ecological value of the existing environment, the DEIR concludes that the Project will not have a significant impact on biological resources. The evidence in the DEIR does not support this conclusion. A. The DEIR's Analysis of Impacts to Wetlands Is Inadequate The DEIR recognizes that there are federally- protected wetlands on site that will be impacted by Project. DEIR at II -15. However, the DEIR concludes that the project's impacts to these resources will be less than significant in part because the project would avoid impacts to wetlands to the extent practicable. Id. The DEIR also relies on the Project's proposed preservation and enhancement of Deer Creek to conclude that impacts to wetlands would be mitigated to less than significant levels. DEIR at III - 28. This reasoning suffers from several flaws. First, the DEIR is vague about the Project's avoidance of impacts to wetlands. The DEIR.states that "certain areas of the project site are identified as jurisdictional " but then fails to specify what jurisdictional areas would be altered and what areas would be preserved. Thus, the DEIR fails to describe the extent and severity of project- related impacts to wetlands. While it is apparent from comparison of DEIR Figure. 11 and Initial Study Figure 3 that all of the vernal pool areas would be filled, the impacts to Deer Creek are less clear. The Project includes a 50 -foot buffer on each side of Deer Creek. DEIR at III -28. However, the Project proposes to develop pedestrian and bicycle trails, exercise stations, outdoor seating, and eating areas within the "buffer." DEIR at III -28 and III -29. Not only could the construction of improvements and the improvements themselves impact the wetlands, but presumably heavy use of the area by people using the trails can damage the wetlands as well. Thus, in this. case, the "buffer ":serves neither to avoid impacts to wetlands and nor to protect the wetlands or resources within them. Second, the proposed`preservation and enhancement of Deer Creek includes no provision for monitoring the restoration area. to ensure that the native plants become permanently established. If invasive and non - native species are not removed from the area, 'it is entirely probable that these species will spread in the restored portion of site, thus eliminating the benefit of the enhancements. SHUTS, MIHALl' Heather Hines April 22, 2011 Page 20 Under CEQA, the City's deferred analysis of these potentially significant impacts is unlawful. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307. Proper analysis of these impacts must be included in a revised. EIR for the Project. B. The DEIR Fails to Provide Any Analysis Otthe Project's Potentially Significant Cumulative Impacts to Biological. Resources. CEQA requires lead agencies to disclose and analyze a, project's "cumulative impacts," defined as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." Guidelines § 15355. Cumulative impacts may result from a number of separate projects, and occur when "the incremental impact of the project is added . to other closely related past, present, and reasonably foreseeable probable future projects;" even if each project contributes only "individually minor" environmental effects. Guidelines §§ 15355(a) -(b). A lead agency must prepare an EIR if a project's possible "impacts though "individually limited," prove "cumulatively considerable." Pub. Res. Code § 21083(b); Guidelines § 15064(i). Extensive case authority highlights the importance of a thorough cumulative impacts analysis. In San. Bernardino. Valley Audubon Society v. Metropolitan Water Dist. of Southern Cal. (1999) 71 Cal.AppAth 382 for example, the court invalidated a negative declaration and required an EIR be prepared for the adoption of a habitat conservation plan and natural community conservation plan. The court specifically held that the negative declaration's "summary discussion of cumulative impacts is inadequate," and that "it is at least potentially possible that there will be incremental impacts... that will have a cumulative effect." Id. at 386, 3,99. see also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d at 728 -729 (EIR's treatment of cumulative impacts on water resources was inadequate where the document contained "no list of the projects considered, no information regarding their expected impacts on groundwater resources and no analysis of the cumulative impacts "). In contravention of these authorities, the DEIR provides no discussion of the Project's cumulative impacts on biological resources. The DEIR provides a list of related projects but then stops short of analyzing cumulative impacts from the proposed Project in combination with the related projects. DEIR at II -14 and 15 (addresses only project- level impacts); Initial Study at 43 (no discussion of cumulative impacts). The DEIR thus completely ignores the cumulative effects of recent development approvals and potential future approvals in the City. For example, the DEIR acknowledges that the Project would result in a loss of foraging habitat for special status birds. Initial Study at 42. Yet, the DEIR fails to evaluate the cumulative loss of foraging habitat that would result from S H U - 1 - 1 f M. I H A I_1' - V!E- 1N BERG1 Rt.r.ra Heather Hines April 22, 2011 Page 21 all of the identified related projects. A revised EIR must evaluate the impacts of the Project when combined with all other development projects in the City to analyze potential cumulative impacts to biological resources, including habitat for special status species. C. The DEIR's Treatment of Mitigation of Inipacts to Biological Resources Is Unlawful. To ensure effectiveness mitigation measures proposed in an environmental document must be "fully enforceable and must not be so undefined that it is impossible to gauge their effectiveness. Pub. Res. Code § 21.081.6(b); CEQA Guidelines § 15126.4(a)(2)); San Franciscans for Reasonable Growth v. City & County of San Francisco (1984)151 Cal.App.3d 61, 79.. Further, mitigation may be deferred only if there is a reason or basis for the deferral and the measures contain specific performance standards that will be met. San Joaquin - Raptor Rescue Center v. County of Merced (2007) 149 Cal.AppAth 645, 670 -7l, Here,. the City's mitigation measures are wholly. insufficient. For example, the DEIR's purported mitigation of impacts to special status birds is limited to avoiding direct disturbance by.,construction activity during breeding season. DEIR at 1I -14. The DEIR does nothing to protect these species during the non- breeding season, and simply ignores the 'impacts caused by the day -to -day operations of a 36 -acre retail /office park. Such incomplete, ineffective mitigation does not comply with CEQA. CEQA Guidelines § 15126.4(a)(1)). In addition, the DEIR asserts that applicant's compliance with existing law and other agencies' permitting procedure's will ensure adequate mitigation. For example, the DEIR assumes thatperinitting activities of the Army Corps ( "Corps ") and the Regional Water Quality Control Board ( "RWQCB ") will suffice as mitigation for impacts to wetlands. Mitigation Measure BIO -2 (DEIR at II -15.) (applicant is required to comply with ACOE and RWQCB requirements to mitigate for impacts to wetlands). The City's reliance on compliance with the permitting activities' of other agencies is unwarranted, where, as hefe, no valid reason is given for deferring the identification of concrete, specific mitigation until ,after approval of the Project. San Joaquin Raptor, 149 Cal ;AppAth:at 6,70 (no, valid reason for deferral where designing. mitigation measures is . not infeasible or impractical prior to project approval). Here, the DEIR fails to provide, assurance that compliance with the permitting requirements of other agencies will suffice to mitigate the Project's impacts on the biological resources. In short, the DEIR's analysis of impacts to biological resources understates the Project's potential to significantly affect special status species, sensitive habitats and wetlands. Even the applicant's own Biotic Assessment provides substantial evidence that SHU MIHAL:Y Heather Hines April 22, 2011 Page 22 a fair argument exists that,impacts to these resources may be significant. At the same time, the DEIR fails to provide effective, enforceable measures to mitigate such potentially significant impacts. 'To comply with CEQA, the City must prepare an EIR fully analyzing the Project's potential impacts to these resources and identifying effective mitigation measures. VI. The DEIR Fails to Disclose the Project's Substantial Inconsistencies with the Petaluma General Plan. An EIR must analyze a project's consistency with applicable land use plans. CEQA Guidelines Appx. G.§ X(b). Any inconsistency between the project and such plans must be disclosed as a significant impact on the environment, and mitigation to reduce or avoid that impact must be identified. See, e.g., Pocket Protectors v. City of Sacramento (2004) 124 Ca1,AppAth. 903, 93.0, 934. The DEIR briefly discusses only a few of the relevant Petaluma General Plan policies in Chapter IV -C, but otherwise fails to identify potential inconsistencies between the Project and the General Plan (or between the Project and. any other applicable plan. or policy). Instead', it relies on the Initial Study, which includes a somewhat lengthy, but ultimately inadequate discussion. The City has just completed a long General Plan update process, including many public hearings and has adopted a General. Plan. Now, after only a short time and no. appreciable change. in circumstances, the City is proposing to ignore that entire, carefully considered process and claim that this Project as consistent with the General Plan. An overarching theme of the General Plan is the encouragement, of mixed use development and of using land inside the City's Urban growth Boundary more efficiently. This proposal, a big -box retail format .centered on a single retail use, contravenes the spirit and letter of the General Plan's policies. Moreover, there may be further plans and policies that apply to the Project site; the DEIR has completely failed to provide this analysis. Ultimately, it is the. task of an EIR, not the public, to do so. The major inconsistency between the Project and the General Plan concerns that Project site "s land use designation. The General Plan designates the site as "Mixed Use (2.5 maximum FAR)." This classification "requires a.robust combination of uses, including retail, residential, service commercial, and/or .offices." In a mixed use project that meets the General Plan's standards, "[d]evelopment is oriented toward the pedestrian, with parking provided, to the extent possible,.,in larger common areas or garages. The General Plan contains a discussion of what constitutes mixed use in Chapter 9: "Mixed Use is a land' use classification that supports multiple uses at a single site. Such uses may include residential, retail, service commercial and office ... The retail portion of mixed use projects is usually made up of convenience shopping, food service, S H UT E M r E -1 A CY &- -V. EINB R 0 1: Rt.ir Heather Hines April 22, 2011 Page 23 and potential personal and business services, oriented primarily toward the residential and business occupants of the development: there is synergy between retail and non - retail in a mixed use project. Retail is normally limited to the ground floor, which assures access and a degree of visibility." General Plan at 9 -6. Clearly the project as proposed falls short of the General Plan's. clear requirements and its guidelines for mixed use development. Contrary to these requirements, the Project consists of a standard, formula big box.retail center with the overwhelming majority of uses in the form of large format box stores and retail shops and services. The other uses proposed are not sufficient to provide a "robust" mix. Moreover, in light of the proposed parking and lack of transit and pedestrian connectivity, there is no way to characterize this development as "oriented toward the pedestrian.." The mixed use designation is an part of the General Plana It projects that mixed use development will expand from I % of the City's acreage to 6% over the Plan's buildout. Compare General Plan at 1 -2 with id. at 1 -9. According to the General Plan: "As compared to the existing land use distribution shown in Chart 1 -1, the key land use changes are the increase in residential and mixed use land areas. Additional mixed use land will allow for greater flexibility in Downtown,. Central Petaluma, and along major arterial corridors. General Plan at 1 -9. The Project's obvious inconsistency with this key pillar of the adopted general Plan is plainly a significant impact that can only be mitigated through substantial changes to the Project. The EIR must be revised to disclose this inconsistency and identify appropriate mitigation. The General Plan also mandates that "[s]trong entries are another important element of community design, as their character creates the image Petaluma presents upon arrival. Significant gateways or points- of entry to the city occur along Highway 101 and most of the arterials:" General Plan at 2 -2. Contrary to this provision, the Project provides for truck. deliveries at the rear of the big box stores, adjacent to Highway 101. DEIR at 111 -18 and Figure III -10. This plan means that Petaluma will present loading docks, storage areas, and. truck parking to visitors on arrival,: This is surely not the gateway that the General Plan envisioned, and is plainly inconsistent with the Plan. The General Plan further .requires that 'intersections should be maintained at Level of Service D or lower. General Plan at 5 -12. The Project would bring several intersections to Levels of Service well below D. See e.g., DEIR Table IV.B -18. Again, this a clear inconsistency that the DEIR should have addressed: Each of the inconsistencies identified above represents a potentially significant environmental impact. The DEIR must be revised to disclose and analyze these impacts, S1- 1UTL-, N1IHALY V/ 1: 1 N B R G F.' Ruse Heather Hines April 22, 2011 Page 24 and to identify mitigation measures to reduce or avoid them. Moreover, the Project may not be approved in the face of such an inconsistency. "The propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements." Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 570. VII. The DEIR Fails to Failed to Disclose, Analyze, and Mitigate Potentially Significant Aesthetic Impacts The Draft EIR completely fails to include a description of the Project's visual and aesthetic impacts. Instead, it relies on the inadequate analysis in the Initial Study. That analysis does not address the complete change that the Project would bring to the appearance and existing conditions of the site. The„ DEIR's conclusion that the Project's aesthetic impacts would be less than significant lack the required substantial evidence. The site is currently open space, devoid of structures, vehicular access, parking, lighting and signs. The Initial Study, recognizes that it is visible from many locations, including Sonoma Mountain and Highway 101. Initial Study at 49. The Project would construct numerous structures, signs,. lighting, landscaping-, and traffic facilities. These "improvements"' would "obviously degrade the appearance and quality of the site. The height and massing of the various structures, as well as a 30 foot high pylon sign, two 15 foot high monument signs and additional intersection improvements along Me Dowell Boulevard would similarly degrade the appearance of this. section of road. The DEIR and the Initial Study, however, both ignore these impacts, and so lack evidence for their conclusions that the effect would be less than significant. Similarly, the DEIR totally fails to analyze impacts associated with increased light and glare. The Initial Study states that there are currently no sources of light and glare on the Project site. Initial Study at 49. It, moreover, acknowledges that the Project would lead to increased light and glare. Id. In then coneludes that this increase would be less than significant (Initial Study at 48), but provides absolutely reasoning or analysis to support this conclusion. The DEIR is totally inadequate on the subject of light and glare. VIII. The DEIR and Initial Study Fail to Account for Uncertainty in the Project's Water Supply. The Initial Study determines that the General Plan EIR adequately analyzed the Project's impacts "related to water supply, and found'that sufficient supplies would be available. Initial Study at 61. As discussed in Part`Tabove, however, the Project is not in fact included in the General Plan EIR's projections; therefore, this DEIR may not rely upon that previous analysis. Even if the General Plan EIR did encompass this Project, S H U l' E NI 11 -1 A LY & \Y'.FINBE RGE:Ru.v Heather Hines April 22, 2011 Page 25 however, further analysis would be required: the Initial Study makes clear that circumstances have changed since the "General Plan EIR's analysis. These changes necessitate new analysis in a revised DEIR. Under CEQA, an EIR must demonstrate that sufficient water supplies are available for a development project, and must consider the environmental impacts of providing that water. Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 431. If "it is impossible to confidently determine that anticipated future water sources will be available, CEQA requires some discussion of possible replacement sources or alternatives to use of the anticipated water, and of the environmental consequences of those contingencies." Id. at 432. The City of Petaluma acquires most of its water supply from the Sonoma County Water Agency ( "SCWA "). According to the .Initial, Study, after the General Plan EIR was certified, the National Marine Fisheries Service adopted a Biological Opinion that "could potentially have an impact on water provided to meet summer month peak demands" of SCWA's water contractors, including the City of Petaluma. Initial Study at 63. The Initial Study states that "it is not known at this time what actions SCWA may propose or implement in response to the Biological Opinion." Initial Study at 63. In other words, SCWA's approach to water supply is now uncertain. CEQA is clear: when a project's proposed water supply is uncertain,'the EIR must identify an alternative supply and consider the impacts of that tapping that source. Vineyard Area Citizens, 40 CalAth at 432. Here, the circumstances of SCWA's ability to serve all of Petaluma's demands have plainly changed, and supplemental analysis is required. The EIR must be revised to. meet CEQA's standards. regarding the analysis of water supply. That,revision, moreover, must use an accurate measure of the Project's water demand. The similar Regency project had an estimated demand of 13.065 million gallons per year. Draft EIR for East Washington Place Project at 4.8 -17. The current Project is expected to use more water than the Regency project, as it will include a health club, which will add substantial demand. IX.. The DEIR Fails to Adequately Address Urban Decay and Blight Impacts Associated with the Project The DEIR clear that the Project has the potential to result in significant urban decay. DEIR at V-4, 5;* Despite this acknowledgement, the DEIR completely fails to analyze the environmental: impact of this potential decay; let alone meet CEQA's SHUTE M11 -1ALY ��`., W" EINBf RGER i_i.r Heather Hines April 22, 2011 Page 26 requirements by indentifying mitigation. Moreover, the likelihood and severity of the potential urban decay are grossly understated by the limited scope of the DEIR and Urban Decay Analysis. In Bakersfield Citizens, 124 Ca1.App.4th 1.184, the court expressly held that an EIR must analyze a project's potential to cause urban decay if there is substantial evidence showing that the project may lead to such impacts. The court pointed out that CEQA requires the project proponent to discuss the project's economic and social impacts where "[a]n EIR may trace a chain of cause and effect from a proposed decision on a project through anticipated economic or social changes:resulting from the project to physical changes caused in turn by the economic and social changes." CEQA Guidelines §§ 15131(a) and 15064(f). Bakersfield Citizens concerned a proposal to construct two Wal -Mart Stores within three miles of each other, and recognized that such,a concentration of discount retail uses could have an environmental impact' the Wal -Mart's could,cause economic harm to local retail outlets, which in turn could lead to physical deterioration. The court concluded that such blight impacts are an essential part of CEQA review. The Bakersfield Citizens court also noted that environmental review must,also consider cumulative blight impacts.. In other words, it is necessary to analyze the blight impacts of the proposed project together with other past, present and future projects in the area. 124 Cal.App.4th at 1193. The DEIR fails to fallow the clear direction of Bakersfield Citizens. Its Appendix C, "Urban Decay Analysis," concludes that the proposed Project, together with other likely retail projects, "could result in conditions' consistent with urban decay." DEIR Appx. C at 37. This conclusion understates the magnitude of the Project impacts. For example, its study area is artificially limited to include only the Petaluma Trade Area even though there is an existing Lowe's in Cotati less than ten miles away. Moreover, the information used in the study is out of date, as conditions have changed substantially since 2009. The DEIR, moreover, refuses to consider the potentially significant environmental impacts of these conditions. Instead, it explains its way out of such an analysis, citing the Petaluma zoning code and vague, qualitative aspects of market conditions. DEIR at V -5 through 7. The DEIR; however, may not simply brush off its own economic study without actual evidence. The Urban Decay Analysis clearly provides a fair argument that there could be environmental impacts related to urban decay., The DEIR therefore must S H U'r L, Ni I H A E -Y Heather. Hines April 22, 2011 Page 27 . provide analysis of those impacts. Its current. approach, of ignoring impacts with no substantial evidence, does not meet CEQA's standards., The Project could also cause urban blight through its increased traffic and localized air pollution (as.a result of queuing) alone. Traffic could depress property values, drive people and businesses away from Petaluma, and create a downward spiral of urban blight. These impacts, were not analyzed. The DEIR must be revised to- include a complete analysis of the potential environmental impacts stemming from urban decay. This.analysis must encompass an adequately largestudy area (e..g. Northern Marin County to at least Rohnert Park): The threshold of significance .must. recognize the possibility that urban decay could be caused by the deterioration of existing uses in the:area as a result of the impacts and nuisance factors; generated by the Project, such as traffic and noise or by the .type of economically - induced blight. discussed in Bakersfield - .Citizens. Until it includes such. analysis, and the required mitigation measures, the EIR cannot support approval of the Project. X. The DEIR'Fails to Examine a Reasonable Range of Alternatives. Under CEQA, an EIR must analyze a reasonable range of alternatives to the proposed project. A ,reasonable alternative is one that would feasibly attain most of the project's basic objectives while avoiding or substantially lessening the project's significant impacts. See Pub. Res. Code § 2.1100(b)(4) CEQA Guidelines § 15126.6(a); Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal. App. 3d 433, 443- 45 The DEIR's consideration of alternatives does not meet this structure. The DEIR does include a "Reduced Proj.ect.Alternative" (DEIR at VI -10), but this proposal is simply a straw man. The "reduced" alternative does not, in fact, reduce any of the Project's significant impacts to a less than significant level. A true alternative would involve. development reduced to a level that would actually serve the purpose of CEQA's alternatives requirements— reducing or avoiding the Project's significant and unavoidable impacts. Unless and until such a alternative is analyzed, the-EIR will remain insufficient to support Project approval. CONCLUSION For all of the reasons discussed above, the Draft Environmental Impact Report for the Project is wholly inadequate under CEQA. It must be thoroughly revised to provide analysi "s of, and mitigation for; all of the Project's impacts. This revision will necessarily require that the EIR be recirculated, for further public review. Until this EIR has been revisedand-re6rculated, the Project may not lawfully be approved. S 1-1'.1 E, M 1 HA LY f ... - V! f: I N E31: 1t G L R i.i.r Heather Hines April 22, 2011 Page 28 Very truly yours,, SRUTE M'I H ALY & WEINBERGER LLP Gabriel M.B.. Ross Carmen Borg Exhibits \\Smw01 \voll data\PNA\DEER\DEIR comment letter.doc S H UT F, M, I H A LY 0- - NX/ E 1.N B E R G, F R List of Exhibits . Exhibit A: San Diego Municipal 'Code, "Land Development Code" Trip Generation Manual, excerpts. Exhibit B: Pulse of Petaluma, The Press Democrat, 2010, "Most Favor Friedman's Store." Exhibit C: Watch Sonoma County, The Press Democrat. 20,10 "Bumpy Roads Ahead for Rural Residents." Exhibit D: V. Ramanathan and G. Carmichael,, 2008, "Global and. Regional Climate Changes Due to Black Carbon." Exhibit E: EPA, 2002, Diesel Health Assessment; excerpts Exhibit. F: CAPCOA, 2008, "CEQA and Climate Change" Appendix B, excerpts Exhibit G: California,Department of Justice; 20;10, The California Environmental Quality Act: Addressing Global Warming Impacts at the Local Agency Level Exhibit H: Governor's Office of Planning and,Research, 2008, "CEQA.and Climate Change-i Addressing Climate Change Through California Environmental Quality Act (CEQA) Review" Exhibit I: Sacramento Metropolitan Air Quality Management District, 2009, Draft GHG Measures \ \Smw01 \volt data\PNA\DEER\Exhibits.to DEIR Comments \List of Exhibitsvldoc