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Agenda Bill 7.A-Attch08 04/19/2004
Page 1 of 3 Crump, Katie .. ..... _ _ _ . __.. __ _. _.. _.. _. From: Eileen Morris [eileenmorris1 @earthlink.net] Sent: Sunday, October 26, 2003 146 PM To: citymgr, Mayor; Keith _Caneuaro @ci.petaluma.ca.us; mike4pet @aol.com; re,dhawks @sonic. net; Bryant @bryahtmoynihan.com; petaluniamike @'aol.com; ptorliatt @aol.com Subject: Chelsea EiR To: the Petaluma City Council Re: Chelsea project EIR From: the Sonoma County :Living Wage Coalition Contact: Eileen Morris, 78'1 -6968' The Living Wage Coalition believes that approval of the Chelsea project will result in at least one significant environmental impact that has not been noted in the EIR— housing overcrowding. Furthermore, we believe that one aspect of the project's objectives; "To promote the public necessity, convenience and general welfare," is not adequately advanced by the proposed project or addressed'in the exploration of project alternatives. Cost to city services must inevitably,groW when low -wage employment —a cost that detracts from the general welfare and will not necessarily be offset by increased tax revenues. 0 ® Housing Overcrowding Housing overcrowding caused by a development is considered a significant environmental impact. We believe that the treatment of this. issue in all .iterations of the Chelsea EIR has been cursory and insufficient. The preparers state in "Petaluma: Village Marketplace FSE1R C &R," "The Draft Subsequent EIR does not speculate on'.future wages'thatm'ay be offered by unidentified tenants at the Project, and does not provide any discussion of socio- economic' effects associated with low -wage employment, as this is beyond the scope of an Environmental Impact Report" (page 329). We differ with the preparers on this issue, and believe that CEQA demands a consideration of the housing overcrowding effects of this project. According to land -.use consultants Jones and Stokes' periodical CEQA updates based on recent court decisions (available at www jonesandstokes_com), "Where a physical change is caused'by economi'corsocial effects of the project, the physical:ch may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine thatthe physical change is a significant effect on the environment. If the physical change causes adverse- economic or social effects on people those adverse effects may be used as a factor in determining whether the physical change is significant. For example, if the project would cause overcrowding of a public facility and the overcrowding causes an adverse effect on people, the overcrowding would be considered as a significant effect." 10/27/2003 ATTAC H M E N T 8 CA � 0` Page 2 of 3 A lead agency shall make its decisions based on substantial evidence, the Jones. and 'Stokes' update continues. "Substantial evidence shall include facts, reasonable assumptions predicated on facts, and expert opinion supported byfacts.'" The Living Wage Coalition has presented the City of Petaluma with substantial evidence that the Chelsea project will result in housing overcrowding. Indeed, part of'our substantial evidence comes from ;a report commissioned by the city of Petaluma, in, partnership with other local governments —the Jobs- Housing Linkage Fee study. That report finds that low - wage employment. contributes to our housing shortage. In addition, we :have provided the city with two reports,, which we attach again to these comments — "A Living Wage for Sonoma County," and `Affordable Housing' for Everyone: Solutions to Sonoma County's Housing Crisis." In "A Living Wage. for Sonoma County .," drafted by Samantha Teplitzky a researcher from UC Berkeley, there isample evidence to make an assumption "predicated on facts" that the jobs created by Ch:elsea's new development will not pay a wage sufficient to allow workers to find decent, un- crowded housing. Workers at the existing- Chelsea development and at a similar development in Santa Rosa, were surveyed, and it was found that'the average worker was an adult breadwinner —not a teen, or secondary wage :earner as predicted in the EIR before you. The median wage was $9.57 per hour (pages 28. to 30.ofthe report). This wage, which common sense and "reasonable assumptions predicated` on facts" urge us to believe will prevail in the new part of the project, is woefully inadequate to allow a worker to afford decent housing_ It is a reasonable assumption— i'ndeed,,:a foregone conclusion =that workers will crowd into units because they will earn wages. comparable to • workers in similar positions. The costs, of rental housing and housing ownership are exorbitantly high ;in Sonoma County. Amonng UC'B researcher Nari Rhee's findings in "Affordable Housing for Everyone," is the distressing fact that low -wage jobs in the.'service and retail industries account for 44 percent of all new jobs created in Sonoma County between 1,995 and 2002, and that, 57 percent .of ,all Sonoma County workers earned less. than $12.50 per hour. She lists a total of 752,28.0 low wage jobs, representing 4,6 ,percent of all local employment opportunities. "None of the jobs listed provide wages-that are high enough to afford the 2002 median one bedroom apartment rent of $823" (page 15, "Affordable Housing for Everyone. "). Again, the facts in this report lead us to the reasonable assumption that Chelsea's project will result in further housing over - crowding. According to a 2002 report from Pepperdine University's Dave nport'lnstitute,, "The consequences of overcrowding ;impact two primary areas: (1) the quality of life; for California's families — especially for children — is adversely degraded and (2) the deterioration of critical infrastructure in the state accelerates much faster, since significantly more. people move into neighborhoods not idesigned to accommodate higher density conditions. This constrains a community's capacity to provide the necessary, level of public services such as water, .sewer; roads, parks, fire., police, etc.," . Promoting public necessity, convenience and general welfare 10/27/2003 Page 3 of 3 We believe the city has; a right under its police powers to deny development that will result in significant costs to the public sector, We direct you to the two attached fact sheets on community impact reports for Kook at how a city can determine how much low wage .employment impacts the public sector. Finally, if you as a Council do decide to approve the project despite its significant environmental impacts, we request that you weigh the considerations you might believe to be "overriding'` = increased sales tax dollars and convenient shopping for Petaluma residents —with the actual costs of_iow wage employment to city, county, state and federal government. We believe that under condition 51 of Resolution 91 -136, you can safely charge this cost to the developer. Hand Delivered "Housing for All: Solutions to Sonoma County's Housing Crisis," by Nari Rhee, doctoral candidate, Department of Geography, Graduate Student Researcher, Center for Labor Research and Education,, University of California at Berkeley; published in 2003 by New Economy Working Solutions and Service Employees International Union Local 707. "A Living Wage for Sonoma ;County," by Samantha Teplitz, MA, UC Berkeley; published in 2002 by the Sonoma County Living Wage Coalition. Attachments "A Model Community Impact ,Report;" by Jessica Goodheart, co- director of research for the Los Angeles Coalition fora New Economy; published by Los Angeles Coalition for a New Economy. "Community Impact Report Fact Sheet," published by the South�Bay AFL -C10 Labor Council. is 10/27/2003 Sonoma County and thel iving Wage: . Page 1 !' A Study of the Impact of a Living Wage Ordinance on'the Cities of Santa Rosa and Petaluma LiNving > Wag For Rosa A Report on the Benefits and Impacts of a Living Wage Ordinance on the Cities of Santa Rosa and Petaluma August 2002 Samantha Teplitzky, M.A. UC Berkeley Center. for Labor Research and Education COMMUNITY IMPACT REPORT 9' OVERVIEW In the midst of a dramatic economic decline communities across California are questioning how tangible community needs can 'be: better, met by the billions of public dollars invested in sports complexes, retail inalls, indistial parks and transportation infrastructiire A rrew tool, the Community Impact Report., li'as been developed to empower comint.inities to e srire that new development meets their neecls. Such a tool is essential for pol,icymakers, community residents and developers interested in a process that secures community input and evaluates the effect of' development projects during the initial phases cif a project. ,Jose residents to The City of San. Jose, through the Redevelopient,Agency, has invested roughly $1.7 billion in downtown revitalization and other redevelopment. project areas. The impacts of this investment have been mixed. The need for the CIR can be illustrated by a review of several projects for which the availability of such a report would have been helpful - lessening or eliminating a negative impact on the community. One example is the subsidized United Artists Theater complex off of Third Street in The purpose of the CIR is to enable San 'Phis document presents an ! overview of the Community Impact Report (CIR). As the name suggests, the purpose of' the CIR is to enable San Jose residents to evaluate the effects of'publicly funded development on the community. Such an evaluation would contain economic and social data of concern to those directly affected by a project, the broader community, as well as to the developers and city leaders. It Nvould be prepared in addition to the :standard enNrironmental review. A CIR policy would snake such a report a component of all developi-rierrt projects receiving public fi.uzds in San ose. J evaluate the effects BACKGROUND downtown Sari Jose. Research completed prior to the project illustrated the high demand for nightly entertainment in the area and projected significant profits from the development. However, severe financial losses following the opening of the complex led the theatre to close its doors less than six years after the development agreement was approved, leaving the city with roughly $5 million in losses. Looking backwards in time, it is apparent that the planning process failed to accurately evaluate the San Jose retail market and demographics of the surrounding area. It did not recognize the difficulty UA would experience in securing the most potentially popular films from distributors. It failed to secure public input on the project including residents' likelihood of attending a new downtown theatre. This failure to gather and. incorporate comprehensive public input injured the project's chance of success. Another us - efbl example of where a CIR might have helped identify significant impacts to the THE SOUTH BAY AFL -CIO LABOR' COUNCIL of publicly funded development on the community. COMMUNITY IMPACT REPORT city and the community can be seen in the elev elcip"rnent-of the San Jose Arena. In this case,: -, the RDA failed to observe or measure the adverse effects of the project on' job quality or public services . before granting the $1?,8 million subsidy. As a result, the Arena development created a Popular (ritertainnierit venire downtown and generatedap,proximately 520 and a demand for roughly 337 housing units. However, due to the lack of wage provisions Ill the development agreement roughly all Arena workers earned less than a liiing wage, and few were eligible fiir employer- ;health insurance. As a result, new employnentc.reat:ed an increased need for affordable housing, a greater reliance on publicly funded health services for the uninsured, and additional deniand for numerous ether forms Of public assistance to low wage `vorking families. COMPONENTS The C:IR do scrzibes conditions in an existing corrrrnriinty arid estiiriates the effects of a proposed development on that coninlun'i'ty. It. covers potential effects Of a deve.lopment in six areas: employrrie-ht, housirig, public sector finance,. smart growth, nei(;hborhood services, and environmental quality. It opens with a, snap Of the pro' . ect:area as well as a picture of the community that lives there. Then, based on information provided both by the developer and the city, it. describes effects that a project may have. For example a GIR may help answer the following ki`n:els of questions: • Is the project likely to be economically viable? ......... ..................... ........ .. ........ ..... • To what extent does a project contribute to the local tax base? Does the,' add to the tax base or move parts of the tax base from one site to another? • What public costs = such as. the costs of subsidies or infr — will be required for the completion of the project:' • Does the project add' jobs to the cornm laity? If so, what kind of Jobsin terms of wages aiid benefits% • Does the project increase the. need for additional housing in the region? Is the need for market rate or affordable housing? • Does the project help meet: the region's needs for housing? • Does the project provide community amenities - such as parks, childcare centers, etc? BENEFITS Use of the CI`R has pc�tenfial' advaiztages,ft)r decision- makers, community leaders, developers, and residents. By aggregating needed . information in cme d ocument, it avoids the needless delays associated with late. requests for- additional data. By requiring a coil prehensive overview of the project, it assures the community th'at,decision- makers wil Have full information w i le ,,, they exercise their judgment. By providing a solid base of facts, it helps t.o.focus debate on concrete issues for which win -win solutions can be formulated. • .. -- .. ............................ ........ THE SOUTH BAY AFL–CIO LABOR COUNCIL '' C f I M E'�F I': C)f C: CJ 1`1 �' E 1 -, MAR 0 Ci Y February 25, 2004 Honorable Mayor and Members of the City Council City of Petaluma 11 English Street. Petaluma, CA 94952 Dear Mayor Glass and Council Members, . The Board of Directors of the Petaluma Area Chamber of Commerce supports the application of the Petaluma Village Factory Outlets to expand its operation adjacent to its current site on PetalumaBlvd North. The PACC Board encourages the City of Petaluma to advance this project without delay. The Board also. urges the use of the City's retail leakage study in conjunction with the development of this property, recognizing that the study is a dynamic, evolving document. The support of this proposal is in accordance with the Board's policy regarding long -range economic plaruiing for the City of Petaluma and the curbing of retail leakage from our community. Yours truly, Onita Pellegrim Chief Executive Officer N E D E f- NOV 2 4 2FO03J MAYOR • ,.,,��.. ti Petaluma City Council I English St: Petaluma, CA ,94952 Dear Council Members: RECEIVED 1 AP N0 21 2003 MAYOR November IS, 2003 My family and, I, as residents of Petaluma, would like to request you not.to let the characters of this :township change - keep it historic. Two important points worth emphasizing 'include: • Please reject permits to expand the outlet mall or any future mall / strip mall styled development. — Big Box stores and outlet mall: expansion equal the�demise of our historic downtown jewel, a dramatic,increase' in traffic congestion, and increase Ithe probability of flooding • Please keep the character of Petaluma intact - by reviewing not only the environmental impacts but also whether the proposals .serve Petaluma',s values and goals We would appreciate it if you keep u& 'informed on the progress, of these points. Yours faithfully, Fereshteh Kujoory 'Aft ry, Ph.D. Home-Address: 529 Eawk_ Drive Petaluma, CA 9.4954 - 7 • ci ccl C\l fe C �COJZALyy�� PcizAt aq(ACI\, C%(I �Gv fi -ec Y oad On d. 3-tc � Cfe i' h7CS RECEIVED NOV 2 1 2003 MAYOR I lk6tbl) cG4 ct,�cl S D . Pe-` O,( / (IA q�45-L4 Dear City Council, RECEIVED NOV 19 2003 MAYOR I steadfastly support maintaining our historic downtown in keeping with its character rejecting permits to expand the outlet mall or any future similar style.developmeni including strip malls. Large chain stores and mall expansion threaten the social and economic viability of our downtown area. I support the council reviewing the environmental impacts of any future development and whether the proposals: serve Petaluma's goals and values. Sincerely, Richard A. Moeller 505 Fair St. Petaluma, CA 94952 Petaluma City Council 11 English St. Petaluma, CA 94952 November 1`7, 2003 :04 ,I a i El RECEIVED NOV 2 0 2003 MAYOR j,7 ILI j e, /J"l 7 la—� 2.e,� Ct,yt,il�•. tuJ2�c.�- �- 2.�.I, � � -�, ,.��1,titl��d- �Rr'Cr., ,.�) C�- U� �/�.�, ..�G��i� -�3�i 72' L?6� fi� � : Iti (� Icy f� l rc%'✓� Cc� CLIti� Judith E. Williams RECEIVED 2 Kazen .Way Petaluma CA 949-52 NOV 19 2093 MAYOR November 17, 2003 Petaluma. City .Council 11' English St. Petaluma, CA 94952 I am; very concerned about the prospect of ran expansion to the outlet mall 'in Petaluma. h "request that you reject permits to expand this mall or any future mall /strip mall' styled, development. Big Box stores and outlet mall expansion equal the demise of our historic downtown jewel, a dramatic increase in traffic congestion, and 'increase the probability of flooding: It'is vitally important to keep the character of Petaluma intact, byreviewing'not only the environmental impacts but also whether the proposals serve Petaluma's values and goals: I would appreciate it if you would keep me informed of any action the City Council takes on these issues. Sincerely, lams 0- :7 • • E THE. Ri .0-N! LIVED WED 1 9 2003 y N O ov 1 �q 2003 MA vic ZLAI C-c- Ln-� AV.- F �C ; c, ����� OP0003 I n � � eal- � - C y f K'. W� 4 U41 � M q DEC 10 2003 MAYOR 6-f 7�4 • DIn41C7� vya aY-Gwr y� fU -- loa,l 5fK1P Ytirn`� 76 lYeSr'zq� Germs pkv -jj Issu.c� / -14 11 • FP N4 AD O VU a� A.2a.'yI'v &- J kscth re yh /kiw Mr..S,Mrs. Mark Abdllla 831 Western Ave. Petaluma, CA 94952 -2547 f; . 0 ; R, s iwIV D To whom it may concern At the Petaluma City Council, I DEC 0 5 200 As a new resident of the city of Petaluma I've been impresse _ wig the care that the city council has given to the old historic buildings in town. I feel it would be a detriment to the city if we continued to expand on the already perfect little town atmosphere. We really don't need anymore strip- malls. Let the litt le guy have a chance at making a life for himself with the small businesses we already have in town. They are our little jewels of our historic downtown. And to make :maters worse the already thick traffic through town would get ten times worse.. Not to forget the environmental impacts on the city, the possibility of more flooding and the impact it could have on the Petaluma Diver. Let's keep our values and goals ;in perspective. It would be a sad day if Petaluma didn't have the small town charm anymore. Keep the people of'Petaluma inform, ed. on the progress of these issues. • Signed a :concerned citizen. 0 L Dae j AM)3 De aK • • L& ilt - b)LL)i% Pe iT,&& - P �e a3e- dO he &K Oil �LxO" - .'Or4l W . deg wwh) tok b, u5f &e 55e sc S�all. i 14un'i � d y L- L,4) i4 0 Lt-r U A ;'" aliK C ) ct d� 7�0 w a bLa�e L a,44 ou'r 54&:4e-, 7 kwvthLL)K 1 ct CrL)I- kr at'Ll Lt re 5t:vrdcYk, :��z.�� 1�'�tCn��z�z�eC�a.- FP Lu U LU 0 U Lu cc O CL -ICA 1 3 v L v CJ �--� �, I( � • 11.J(_ t� L` 1 t. L� 4 ~_ � t �..�L„�`. � C�� �,_%4 � .�.J� � f� L��� -C-•� ����.�.1 �. 2-4 L IL J b I t vt -L 4: J ut UY PIC) Dn -1 4H v vu L. J (oc��. -! L — 17 - < 1 (.7C_': Ju- n:� Utbo 1111 Li-`3t4 t -� O ff' A TRACY LADD 1653 MADEIRA CIRCLE PETALUMA, CA 94954 RECEIVE DEC 0 3 2003 fv;AYOR December 1, 2003 Petaluma City Council 1 I English Street. Petaluma, CA 94952 Dear City Council Members: I am writing to you as a concerned Petaluma resident who wants to make sure that Petaluma does not lose its downtown small businesses and atmosphere to 'large malls and Big Box stores.. it Please vote to keep the character of Petaluma. intact, by reviewing not only the environmental impacts but, also whether the :proposals serve Petaluma's values and goals. Please keep me informed regarding the progress on this issue. Thank you, Tracy La d V� REC-F� November 20, 2003 , DEC 18 2003 CITY nna Petaluma City Council 11 English. Street Petaluma, CA 94952 Dear Petaluma City Council Members, Please. keep our city charming! We do not want any ". Big BOX stores or ' strip mall. developments to be b u ' .i It, iin ,Petaluma. The tax income brought in by these, large retailers does not outweigh tfie, detriment to the city (ie: increased traffic flooding, not to mention making Petaluma "tacky "!), we do not need to compete, with . Rohnert Park. , P etaluma ,residents, are attracted by the character and ambience of our fantastic city please don't ruin this. Please kee P us informed about development in Petal,uma. ' Th a k G ✓�i%�fZ .d�� you 67, Kim & Rick. Sustek 1757 Rosamond Street Petaluma, CA '949 : • 0 VL /V:J /LVVti 11. :J1 J1 VV J1 JJ1iV 370 Grand Ave #5 Oakland, GA 94610 LAW OFFICES OF BKLAN GAFFNEY (5.10) 8914592 Phone (510) 891 -9380 FAX FAX MEMO TO: Petaluma City Council 707 -778 -4419 Petalma C_ity:Ck:rk 707 -7,9-4420 I= E B 0 5 2004 Petaluma Planniog Department 707 - 778 -4498 DATE: Febmaay 5, 2004. RE: retaluxam Well®Re; Marketplace Project and Subwqucmt EIR PAGES TO FOLLOW: 20 FID ENTIAL NOTICE ,10MMUNIiY IgVCLUNVIC10 utfAHIMtN' IWS docunwnt contains t nEvta non'bdonging to the sender whkh is iggany pnvt cr& nesinformadon is intended only for the'use of the indite oac deity named above ifyoa am nbt the idntended`redpient„ you see hereby notified that any &s44cros*e, copymg;,disbibution,.or the to mT ofany action in reliance on the contents of this tclecopied information i6. staidly PmhiUtcd If you have received taus 'ts mission in error, please iwo,medu tely notify me by'telep6one to =arrange for. "teean of 'the origixW document to me- 0 Fobruery 5, 2004 Comrmnt N42*etplsee Project and Subsequent EIR l The SEIR, kds t , Include: as Accuratei Stable Mad Fi project De.9criptiom Under CEQA, wit eccu jate,stable and finite project description i a n , essential element of an Descri infinformative and,legally sufficient. EIR. Chapter I Of the SEK entitl "Pro ption an Setting," defiries the project as Parcel B (consisting of 5 retail structures over 1 800 square feet) and Parcel c (consisting of a 41,000 foot 12 screen, 2400,sca movie theater;,s 36,000 square foot retail structure; aW,a detention basis in the north-east corner of Parcel C. Parcel B will include 923 parking spaces. Parcel C will iriclude 527 parking spews. See pgs. ES- 1, 1-) 2 and table 1-2. However, after the Planning C recommended approval of the SEIR unchanged from how originally presented, substanliaLmodifications to the project were recommended by the Planning Corrunissiowat its PCD hewing. Those chariges:included, inter alia, modifications to the footprint of buildings,. the m aximumand,minimurn size of building pads, the roadway alignment, , the parking lot layout and circulation, creek setbacks, drainage patteMS9 the location of proposed wetland mitigation sites; frontages, to freeway, building facades and tree replacement. After the Planning Commission'sFC13 hearings, the project specifically changed such that Parcel C May 91 may not include a theater. 1Part6 B might-inc lude only two, three or four - rather than the five considered in the SEDt - dependent upon the needs of the project applicant and/or certami unidentified prospective tenants'. None of these p ftet chang have been put into of a resolution nor otherwise ro) ge a the ; form - reduced to writing. In addition, City staff does not expect to rcleaselhe current project description to the public any sooner than February 20, 2003. Currently the public does not know what this propose p actually is orwill be. Cl the project described :'inlhe: SEER is not the, jept'bein considered today and thus pr the SEIR project &scriptionis nei-thcroniplete nor stable. 'be fluctuating nature bf this Project will have corresponding effects on the SEIR analysis of impacts, including analysis Of the impa Of the ,project on traffic pgftms, h (flooding, water . , quality and erosion/sedimentation), parking, biology and no I iseL r Without an adequate analysis of impacts, the City and public are deprived ofAiscussion of feasible, cf1bcfiY6 mitigati011s. ' If the changes in the prop it additional data changes the SEIR in a WAY that , ift S . advers deprives the. public � of a raceningful Opportunity �to � comme upon s ubstant i al "" environ eff, the SEIR must- be recirculated for additional public comment, even if the City dtt erminesVW.all im piots hayc been mitigated. February 5, 2004 Conwient p Re: d Village Marketplace Project-and Subsequerit EUR is I I � I vytub/ 20LIQ 11: 01 D 1 ri U J IL 'I . 0 L) e SEIR ro ._ .p y . t n o fth prq ect's stiream crossings p , -ci and the saratold t ha t ect descl� l on also;faels.to full desCn� � o �, Alteration Agreement and mod�ficatrons: The C ty _ . lw blic will be sough t $ee p. 1 =36: `l he SEIR fails'tb provide aproject descriptiornof the nature, scope, and design of streambed :alterations forswh Streambed Agreements. Without such a description of the design, and location of the strcambed alterations, the Council <and the pubic are unable to +assess the impacts'(and necessary mitigations) to riparian habitat instream habitat ,end :aquatic organisms from the proposed project. Finally, neither the ` SPATi W- EIR inor this proposed. SEIR include -the ehangcs in%he 8.28 - acre abandoned 'railroad right of way .in 'their project description. See reference at p. '1 - 4. Development of the abandoned railroad right of way was, however, included in,the 1991 project conditions of "app' al, for this project nterefore, o order ;to;comply with CEQA's.mandate that the project description be complete; the4sbamdoned;railroad right of way musubc included; ifnot the environmental impacts will'likely never be analyzed. U. The Sit Fail® °to;Adeqaately'Describe the Envirmnmental Setting An EIR is required t& include a description of.the physical environmcntal,tonditions i n the vicinity of the: project, which constitute the baseline - physical conditions by which :a lead agency determines whether an impact is significant. CEQA Guideline § 15125. Knowledge of the regional vironmental imp S cial em hasis,must be laced- on setting us °cnttcal to�tb�e assessment often _ _ par pe P p environmental resources that are °rare or.uniquev the,region and would be affected by the project. The EIR miistAeooionstrete thatthe significant environmental,impacts.oftthe proposed,Vtoject were adequately "investigated' :and.disc,ussed and:it must permit the significant effects :of the project, to be considered itt the full environmental context.1d. l The'SEIR fails in -this regard as it includes-no description of the,extent of the Petaluma River noodplain nor a floodplain >nap. Similarly, no land use mapiis included ia`the SEIR. See pgs. 1 -1. 5 - "Because of thctproximity of the Project sitato the Petaluma River, hydrologic issues are of primary importance to the'Project SHR" validity....See p. 54. The SEIR.hints`that a portiowbf the project would be located, within 'the floodplain, but does not describe the cxtent or location of the floodplain either pre or post project construction. See 5 -11. Knowledge of the extent of the floodplain is important to the analysis of environmental. impacts in order to evaluate the intrusion of `buildings' into the floodplain ,(p, 1 -116), compliance with the City's' "Zero Net Fill" policy regarding flood storage W ithin floodplain ( Id.) ,:consistency Policy Nos. 7 & February 3, 2004 Comioent Rs.. Petaluma villagt: Merketptoce Project aardSubsoquoot EiR 3 02/05/2004 11:01 5108919330 BRIAN_G4FFNEY PAGE 03 02/05/2064 11 :01 5i.08919360 BFIAN_rAFFNLY F'AUL 114 9 regarding flood managentent hazards (p. 2 -16 -2-17), consistency with the,City`s and FEMA' s Regulations regarding floor elevations; and floodplain encroachment (p: 5=9) and FEMA insurance requirements.- "Over the ears, flooding in.Petaluma has caused extensive [multi- million dollar) _ y g ., damage." See p. 5 -5. The City 'has spent over $40 million to alleviate those past damages. Tic SEIR's environmental setting also does not include any description of the parcel on which Village Drive is propose to be located between the Pctalurna River crossing and Petaluma Boulevard North- Withoutt is information regarding the baseline physical°conditions ofthe project, the EIR can not adequately `inform the City and the public of whether impacts will likely be significant. Ill. _ Inadequate Aimalys1s,of.Sgpfficaat Adverse Environmental Impacts L and Use and PlanwK, Policy. 1hunct Attttllvs s Flaws The SEIR has failed to properly analyze oomplianw of the proposed project with all applicable land use plans, polieies 'and regulations of agencies with jurisdiction over the project adopted for the purpose of avoiding or mitigating environmental effects. First, Chapter 2 commences *:promising that its "second section ,(Impacts and Mitigation Measures) will summarize the WOO* ct's conformance with all applicable plans and polices and identifying mitigation mea ures2`. See p.`2 -1. However, the "impact and Mitigation" section on p. 2 -26 and 2 -27 fails to include the °proper level of analysis. There is io discussion of the facts and rationale regarding this projects consistency with land use;plaas. Moreover, then is no conclusion of the significance or insignificance'of this project! Nor`is there any'discussion of mitigations. - The Council and the public are only informed that the project is- "generally consistent." This implies that in one or more undefined ways,the project is inconsistent with the Petaluma General Plan ( " GP" ), the Petaluma River Access and Enhinc snent'Plan (PRAEP) and/or theCity's Zoning Ordinance. Given that a conflict'with a land use plan policy or regulation, according to the SEIR is significant, this is afstsl omission: Ttie:sdting section describing various policies fiutlter confounds the reader. For example: GP Policy 7 (p. 2 -9) The prior EIR determined that .a minimum sctback of 120 feet from 'Notably, the 1'990 EIR for,Parcel A limited its analysis to the "policics" in the General Plea and did not address the Ge eral Plan' central or specific goals, objectives or programs shat could apply to this proposed project. 'Tlus' SEIR,promised to evaluate these other aspects of the General Plan. See p, - 2.6. • February 5, 2004 Comment Re: Peukl une Village Marketplace prpied red Subsequent EIR 4 02/85/604 11:61 5163919 Eh $RI AN- IiCEFfJEY FADE 65 the highway should be required for development of Pamcls'B and C to serve Policy 7. This projcc l oalyhas an 100 foot setback. This SEIR,concludes that the proje vis consistent with Policy. 7 and!W the project does `not .rise to the level.ofa "potential° environmental impact. The'SEIR offers no analysis.ordiscussion as to how it reached these conclusions. OF Flood Hazards Policy 7 (p. 2-16) The prior EIR determined that regturing `the floor elcvatiions.to be above the 100 year'flood plain would assure consistency of the project with Policy 7. However, we now knows that the floor elevations were See Comment JJ -IS at p. CR209. The consistency determination does not take this infomnation into, account. Further, there is,no determination of significance. Petaluma River Access and Enhancement Plan,(p. 2 -17 to 2 -25) 7be SEIR determines Ihat the project is consistent despite acknowledging that Village Drive 'Brid& would be constructed through a Preservation Zone where the PRA_EP prohibits development of any kind. Accordmg -to the SEK inconsistency with this,poliicy should be significant!- Yet, the SEIR avoids' any statement regarding significances and in doing so also fails to discuss feasible effective mitigation measures. Second, the.SEM does not adequawly amlyze the potential significanfimpacts of farmland conversion. See p. 2 -27. "IIe SE1R.rcveals thaf- tltere way be'yrrterference with agriculture, but n "'t such " extent that it .would creates ssure to convert." Id However elsewhere the SEIR of o sa pre , states that "over tame, the on -going eonversiari" would be expected to permancotly change the existing visual zbaracter of rural' Petaluma.,See p. 13 -5. The adjacent livestock yard is an integral piece of agricuhure!in&astructune and its loss will lave cumulative impact on.farmland conversion throughoid'the region: CEQA requim analysis of this issue. Further, the SEIR offers no conclusion as�to-whether there will be a significant impact from, farmland conversion. Third, the SEIR fails to arxalyzc compliance of the proposed project with all applicable land use plans, policies. andregulations,ofother agencies w th,jtuisdict on over the projegt, California Deparonem Fish aind' Game, the U.S. Fish and. Wildlife Service, the U.S., Army Corps of Engineers; Federal Emergency Management Agency and the Regional Water Quality Control Board. I ourth the SEIR fails to analyze compliance with Conditions 51, 52, 54 and 55 of Resolution 91 - 136, which clearly are applicable land userregulations. Seep. 1 -5 to 1 - 8. The failure to analyze compliance e8ch of the above is a procedural` violation of CEQA. February S, 2004 Comment Re: Petaluma Village. Marketplace Project and' SubsequenCEIR S • 0 02/05/2004 11: 01 510891 1 3 3 190 r r , 4tr Hydrologic l I act Analysis haws The SEIR discusses si gnificant .hydrologic impacts including, flooding, water quality and erosion/sedimentation: • The significance criteria (p. 5 -1$) is flawed as it doesn't recognize as a significant impact inconsistency with.ihOCity's requiretnentthat "fmishedfloor elevation for new construction in the flood plain must be two feet above the 100 year flood elevation" (p. 5 -10). • The analysis of flooding impacts is flawed as there is now evidence before the City that the finished floor elevation for new construction in the floodplain is not two feet above the 100 year flood elevation. • The conclusion that an increase in runoff due to the project will have an insignificant impact is improper where 'based on conditions in the Petaluma River, rather than on the Pctalurna floodplain. • There is no analysis of the hydrologic impacts of the detention basin to be constructed on the northeast comer of Parcel C. • There is no analysis ofthe hydrologic impacts of the new Village Drrive>which will cross the Petaluma River. Bioloqjcal Resources impa t Analysis Flaws The SEIRviolates Resolution :91- 136which required environmental reviewof Parcels B and C to provide analysis of impacts deeded wrninimize adverse impacts tu:Capri.Creek, the Petaluma River and other natural physical features, including riparian habitat,: seasonal . wetlands and freshwater marsh. The SEIR fails to di cuss' mpacts`to rare plant despite the requirement of Resolution 91 -136 that a survey for such plants be undertaken. The SEIR &iled to analyze impacts to all of the species` present on the site, including the Sacramento slittai), despite the comments of the Dept': offish and Garne. Traffic and Circulatim llm, ggt Analysis Flaws Parcel A has 962 parking spaces: Parcel B.is projected to have 527'parkivag space an Parcel C 923 spaces. The SEER fails to analyze the impact.of traffic circulation within and:among the mall parking lots. The. SEIR fails to analyzeL the traffic impacts of the new Village Drive which will cross PvWurna River. February 5, 2004 Comment Re. Petalum Village Marketplace Project and Subsequent EIR 6 02/05/2004 11:01 `1 0891 1 t% I AN- r 1 - it- T The SEIR fails t co mply with. Resolution 91-136, Condition 51 ( requirement that specific, vicinity and "are-wi traffic impacts associated with p ro j ec t s on 8 & C ishall be identified concurrent with i * environmental analysis of the specific project. The SEIR fails to comply with Resolution 91-136, Condition 51 (E)'s requirement dlEt Mffic analysis for ParcelsB and C shall include evaluation of the potential need to requimsharedparking agreements with Parcel A and the potential need of prior completion of the, cast/west ovexpagstinteTchange, prior to project approval. The SEJR.doescnot include discussion of compliance with Resolution 91-13:6, Condition 54. Failure to AnALM the iMwje gilk Proi The SEMand 1990 EIR have failed to analyze the whole ;of the project. Developmentofthe abandoned,railroadright of way has not been subject '4o CWA analysis as part Of the 990 Final EIR nor this prop6sed SEIR. Sipificant vegetation was lost, a riparian area was filled, and a wetlands corridor :and , wetiands°acreage , wem,�lost. Similarly, the SEIR fails to include ,analysis of the-impacts from development of the parcel on which Village Drive is proposed to be located between the Petaluma River crossing and Petaluma Blvd. North. UaUlv to Analirzt indirect Impacts The , SEIR N4 to include analysis of the environmepto itppacts of the demise of local downtown, businesses as a result of the proposed project, including adverse, impacts to dowbtownlCentralfttaluma traffic: and circulation,- urban blight, abandonment and dmay of the central city 6ftrcommertial areas, employment; emergency and policy services. Under CEQA, - direct and indirectsi0ficarit effects of the project on theenvirorunent shall be clearly identified, and described, giving due consideration to bothithe shorl-term and long-urm TbzAiscussion should rinclude rckvaht specifics of the area, the resources involved, physical. changes, alterations to ecolbgiWsystcxhs and chagiies indu0c&in:pqpuIation distributiou, population concentration, the human use of the land (including commercial' and residential development); health and',sAfety proble'nis caused by the -physical changes, and other aspects of the resource base such as water, historical resources; scenic quality, and public services." CEQA-Guideline 1:5126.2(a) The SEIR has failed to meet time requirements. Failure to All Unavoidable Im2m The SEIR failed .to identify Seismic Hazards. as .u despite concluded that even after mitigation they wil be potentiallysignificant. The SEIR also did not analyze all significant f 5.Ioo4.c_omucw Rc: p ViJlW Marketplam Project and S EIR impacts identified by the 190`EIR for Parccl A;where mitigations were never implemented and thus the impacts arc unavoidable: IV. TbtSEIRF&bttoAdeqmtclYAB,*UCmulativc eos The SEIR includes a section devoted to "Cumulative Impacts on p. 13 -5. The SEIR 1) fails to analyze the cumulative °impacts of each lilkely<inPW -(ie there is no analysis of the cumulative impab to biological rewumes) and 2) fails tb properly analyze cumulative impacts resulting from the ux7anerrtal impact of pest, print and reasonably foreseeable future' projects.' Cumulative PopWatiort: HOMIrim Em loyment IraaM Anslvais Flaws The SEIR summarily concludes; without discuission, that rpo cumulative impacts eat "u combination with other development applications that could cause population, housing or esnployrnent.inVactS." See p-'13 This oonclusi- is flawed for al ;fleast tht+ee reasoaLS: I . An EIR must provide wAysis - not simply unsupported conclusions -.only thus may it serve its inteaded purpose of infonning Petaluma decision- makers and the public:. 2. By only considering "pering"'develapmeat applications the°SEIR necessarily does not analyze the "change in the arviror>oieat restilt A&from the project whep added to past, present and reasonably foreseeable projects.. "Pending dVvelopnnI=t applications" certainly do not include pest pro*ts. Moreover, there is no case law or CEQ 4, guideline which so narrowly restricts' masonably foreseeable projects" to "pending" development applications. Despite that the public, including David feller, apprized Chelsea of numerous reasonably foreseeable projects in comnnems on. the Draft SEIR, no adequate cumulative impact analysis has been conducted.. 3. The limitation to "significant" population, housing or employment impa eonWadicts the CEQA mandate that a cumulative impact ana ml ider "ineremental" impacts which way be individually minor but cumuladvelyt considerable. oddly, ttw SEiR next jumps to a diffciCrrt conclusion that because the proposed project would not .exceed the development allowed in the General Platy, "there would be no change in cumulative irnpacu6 associated with the °(proposed) . project that have not been c nsidewd in the environmental evaluation of am C 1, Plait." See, p. 13 -5. This too is flawed. As discussed above, such, conclusmy swernents' avoid'the required analysis of Past, presmt and reasonably` foreseeable projects. Even if the The flaws in the SEIR's 'Cumulative impact analysis at p. 13 -5 are, not rectified. in the "Sturrmary of impacts" ;section which o>»its any mention of "cumulative impacts_" See p. ES- 3 through .p. E -ZZ. Febnary 5, 2004 Comment Re: Petaluma village Mwketplece Project and subseyurnt,;E1R 02/05/2004 11:01 5108919 -20 WIAH—GAFFNEY PAGE 09 "amount and intensity" ofdcvelopartent W':twtb= a ccieoded, "this does °not,o nean.ipsofarto,that the impacts are equivalent; each "development has its own unique firrt;and design Which were not known wben.;the. General Plan: E1R was certified and *Lich also. tMy aifoet:pa� .dal environmental i?np . Further, the `purpose of General Plan EIR'is:.to evaluate ft impacts of the land use constitution then adopted. Mere ooafortnity with general plan, in vW of itself, will.not justify a findingthA the project has no s gnifidv* ennvtrnrtmerrtal effects. See Antioch v. Pittsburg (1986);187 Cal. App. 3d 1325. Neither the General F1R ,on its face nor the City at the; time of certification intended: for that EIR to suMlantthe analysis required i6EMs for spoci5c projects:, Neither th G enera l, Plan;E1R or the 1990 Elk for Parcel A adequately addressed the ;regional and w=wide cumulative impacts of the proposed Petaluma Villege,Marketplaoc project: Notably, pnpJeets arr',for eeaWe now which' nay not have been reasonably foreseeable at ft titne�ofccrtificat on of tbe.Gencnd Plan or the 1990:EIR for Pmrce1 A. Thus a cumulative .impact analysis today could dift. Cumulative Traffic k2@4 Antib* FW22 T he'SEIR concludes that "as discussed in Chapter 7 the proposed project "Would contra to the projected anrcidWve'rncm= fin traff a alaarg roadwacYs at►�d et':unersocfaons in the vicinity. ".See p.13- 5. From this statement, it's impossible to say if the IEIR is informing the City and the public either:if there is a cumulative impact or if this 'impact is 'd9r1ificattt.' Tbus,, the SEITt does not comply with CEQA Guideline scion 151`30 wtuch"requires'that the,the discussion of cumulative imp is rcflect.ttae °severity of the irnpaets,aioid'their likelibood of occu►7atce. If the cumulative impact is not sigrufrcant, the SEIR is uited to briefly indiicate why the cumulative bripact..is not signnificant, identifying facts and analysis 3upportingthat;oomclus on. Refetcnce: to Chapter 7 does not disclose a poper or full cumulative traffic it ipact.discussion. Under the title "fimu+c conditions "'(pgs. 7=5 7-8), the SEIR reveal§ 60'thelxvel of Service criteria were applied WA spemOos - l) misting conditions, 2) finure condition§ - '`t w traffic atnicipated for the year 2015 3) existing. plus project the existing uwffic volumes plus 9ptythe ' PeWu ma`V illW Mw*etplace ' 4, Compare twnext sentence where contribution to air quality is characterized as a "significant cumulative 'impact. 5 BelyingV*SEIR's claim of worst -case tratTrc analysis, tber future tree scenario "was developed solely °for`M peak' houivaiTic'volumes" and did not include the AM. or midday peak bourn (p. 7 -20). However, at times, thc,lcvcl of semcevin th6 AM is worse than at PM peak - eg, Ek sting•Conditions at'Intersection 14 (Washington/McDowell). See p. 7 -7. February 5, 2004 Corionent PeWuem'Village Markdplace Project and Subsequent E1R 9 02/05/2004 11:01 51089192 BFIAN_GAFFNEY PAGE 10 pagject astd 4) the ;future:trat ic:artticiliated for 2015 plus o& t Petaluma Village °Ma ketplaee project. What is missing is exoninabron 6`M9 plus present plus fit= projects. Indeed, the modeling which included tnncL:sclosod ';hisbarical 'trends' ores replaced, aPPereatly because the ,model yielded. results characterized onlyas "instable," See p. 7 -19. • Also, because they` EIR does nit reveal what ptvjects:were included -in the calculation of "Nture traffic anticipated for 2015, it is impossible to k w if all "r�bly foreseeable projects" were included as required by CEQA. It certainly appeuss certainly rot; elsewb em the SEIR`stotes two projects were included in the cumulative analysis - the Redwood Technology Park and a downstream flood oorrtroi projea See p.:1. -35. As diwuusaed'inJi'4 there are riiimeroua rreasorteble foreseeable projects in addition to these two. Thus, the cumulative traffic analysis is again,flawedbecause of its myopic focus, in clear contzavention of controlling CEQA law. Chapter 7 concludes 11iat the `Ytatune 'plus project conditions" result in potentially sigruficant impacts to 3 intersections and l roadway. The City and the public, deprived of a proper and full curnuladve traffic impr& have not. been informed if the. LOS for these intcrsec6ons/madway would degrade fiutber or if there am od= interjections and roadways which; also: would be significe®tly impacted. In addition, as discussed'*O without the requisite analysis cumulative :impacts, the FIR can not have adequately di= sWe Miitigations for such impacts. Cumulative Aesthetic t .Aralvsis Flaws The SEIR states that the project world "contribute to a cumulative reduction" in the number o open areas currently socn by those traveling along the 101 corridor. "Over tame, the on -going conversion" would be expected to gently amnge the a hng visual character of rural Petaluma. See p. 13 -5. Tlhis .swememt.does not discloseto the public or the Council whedwr theimpact is significant, and thus fails to:comply with CEQA.. Couespoadi4y7 by avoiding classifying the imp ct;as significw, the SEER makes; no attemptto discuss potential >tnitigations'for this cumulative irnpwL Incompaxison, Chapter l l of the SEIR discusses the individual aesthetic impacts of the project and eludes that there is a signi5cant iin� from 1) loss of spenic resources, 2) degradation of visual - character and 3) increased fight glare -and then recornrmeuds mitigation ateasures. Cumulative Hydrol = cK Analysis Flaws Chapter 5;of the SEIR discus significant hydrologic impacts including flooding, water quality 0 February's; 2004 Comrnent`Re: Petaluma Village Marketplace Project and Subsegt=t EIR 10 82/651-0 ©4 11:01 5768919390 BAI4N- U4FFf4EV FADE 11 and erosion/sWimentab on. Sce kupapts 5.1= 53. The SEIR fails to include a val id analysis of cumulatiive hydrol4c "impacts. First, thm is no analysis of tb�ecchAO&In the enviro�rt resulting from the project Whcp,gddod " - to past, present `and zeasonably`foreseeable projects, "The only o%= identified project ,consid&ed n this cumulative irapect analysis' is the Redwood Technology C.eow." See p. 3 -26. Thus, the SEM's cumulative impact ;analysis, only considered "tow projects" See p. 5 -26, 5 -28 (flooding), 5-29 (sedirnmtation). Thar is no consideration of 1) any past projects, including Perroel A develop n" or any�otber'projcct`in the PeWurna:River floodplain, 2) other existing developments of 3), any ressonably t'oneseenble�fimire,projects other than A Redwood Tecb Park. The SEIR remwkably evemignores the Army Corps dowastream;; flood` control project, despite describing futtirc projects for purposes of cumuilative impacts'as including this flood prIDJ ert Seep. 1-35. The SEIR did not. c onsider the.cumt ative:hydrologic jmpwts despite adMwledging'lughway commercial .uses west, ; industrial residential east across U.S. 101,and thafttalutoa Livestock Auction Yard to the nottb (we. p 1 -1), and the development of "Parcel A. There me also numerous reasonabk foreseeable projects which wctt;not considered as discussed fully below. CEQA,does not permitaconsh2ined cumulative iion maEizWysis ofmgional impacts; " "Bomuse of the 'prvximity.ofthe Project Site ' to the Petelu®na;Rrver hYdrvlogie issue s are of primary impo to the .Project SF1R validity. See p. 5 -1. Tire SEIR's flaodit�g model consider+od the 1?etal irna,Pivcr downstream of Willow Brook through Petaluma River upstvaun of Lynch CmeL However,'no'analysis ofctunulti ive,iimpact past presentandreasonaWfor�eseeab lepno ectslocatol even .witl , It is'limited. stretch of -the Petalwaa River was included in this SEIR. In Kings County Farm Rraeau, v City of Hanford, ('1990) 221 "Ca1..App. 3d 692, 723 -724; the Court suet asidtan EIR which failed to vongiderthe entire air basin in its cumulative impacts analysis. So here, this SEIR is flawed for bd ng such a . corustrainod approach to cumulative hydrologic impacts which .is of pa ticulair concern given the inevitability of floodiing;in the PetaluauaRivertoodplain. Second, the'SEIR Ws to..considcuthe cumulative effect of flooding on the Petaluma River when combioed with its three tributaries which run duvugh the proposed project. "ln addition to the'Pe River, several anAler tributary st rwm traverethe Projectct site - -..All three {]streams draiin w>der Highway 101 through culverts, cross the Projecusite, and di"asJWW to the Petaluma Rivet." See p. 5 -2 Third, the SEIR completely avoids a cumulative - water quality" analysis. The 'SEIR, • • February 5 2004 Comment Re; Petaluma Villap Matkcg4ace Project andSubwquwA EIR l 1 0 02 1 1 : 0 1 kip iAr4_ba F rqE); un p b! an data or analysis that "with th proposed e proposed water quality y assurnes� withot4 y suppbrting M J .itjpfio'n,MC=AreS,fIDreaIch indiviclual' ' ed in place, no significant curnulative WkIff quality impact s ; -'CEQA * Tcq'*W analysis :of -would result rom,Ibe two PrOjectsi" See v 5 -29. , ' However, under cumulative impacts MWt be avoided on the. unsupporw4 assumption `that urlumever impacts odxx projects may have will btzlitiPtni In K—EW—Co—un-V the court "P ktned dut: The discussion i m the' FM of cumulative impacts of I energy _ similar to the [p GwF psujcct contains no list of the projects considered, 1n0 information regarding d cq =W:knpacts,on I gr0mdwnw resources ind noanklysis of the curnutative impacts. U - i6t& smh Iniocts MU how mda k by existing wW Planne WaW wn:jer a ion, efforts o¢.goveann x" ag=ics in' area Abwnt some data indicating the volunie of gvAWwzw used by all such projects, it is impossible to evaluate I ' Whether pacts associawd with "r use of grouodwaft are , sew ficaut mid whedier such impacts , Will Weed be miti by ft water conwrvvbon efforts upon which the EIR relies. Kim L � 32 . ,'CilApp.3d at 729-730 (emphasis adde4 upon wWr-h it relics. An Here, the SEM does not evmMentiODA94wood Technology Part nl ' t 'g a 6 Pm adequate curn uMve,iInpactanalysis would avoid such unsupported conclusions of insignificance and consider all past premg-wid fommeable projects as discussed above. Analysis Flaws Astonishingly, the SER'Wmomialysis of the cumuisfivelimpectof this Project to biological tesourom. A thorough cmulativc impacts analysi is ' p articularl y ' hD P ortant here because Of the substantial cv id e=o f- pac t s Ifio rn the pn�ed alom. Ei& signifi =Facts Un frMn the Project we identified in respect'tID l oss of seasonal wetlands. riparian , habites, -p,6pd turtles, red-legged frogs, nesting Yellow warblers, resting hirriers, nesting w hit e _uflled ldtes and degradation of water qua lity. See p. 6-25 duough 6-11. Yet, h th i mention of cumulative impacts Or impacts from peA present and future projects. I a ddit Ion , the SFJR has not analyzed the cumulative bnpw t biWo resourr-rs of d Palcels Band C in the context ofdevelopment o f the ,abaruloned,railroad right of way aid of Pawel Ai Si vegetation was lost, a riparian ar ea was filled, a wetlands corridor and wetlands acre age were lost I Wlitkft &velopmentof the abandoned railroad A& of way. M V MOM � - Me SEIR &wussion fa& to include either 1) alist-of Past, VM$eM 8 nd'PrcbWe AAW P"i" producing related or womulative impacts including d)ow pmjccts outside the control of the CitY. Or 0 F,I,,m 5, 2004 Comment Re: Pe,UJ ViJJ8WLMaik►PIWC Project and subsequent EIR 12 02/05/2004 11:01 51 BRIAN_GAFFNEY PAGE 13 2);a summmy of projections cotained in am adopW gewral plan or related planning doctnncnt, or in a prior, anvirownental document which has been adopted or certified, which, described or eveluated . mgional�or - amaMde;canditions cormibuting to „the:cumuladve ino ct. Prather the1SEJRNls to define the geographic IODPe of the area affected by the curaulative I and. fails. to provide a;re mnsable explanation for this goographic. lii nits&m Faitu to Adequately Analyze the Cumulative Irhpect of Past Proi” 'Tbie SEIR also acknowledges that it has excluded 'the rnost important: past project, - the development of Parcel A thet existing 195;000 sgU&re foot factory mull ,development: The SEIR acpressly focuses development of ParcclsB aril -C, "and xxA on Ow cnvironrncr al.effects associated with 4w w developmentof Panne ; A." See p. M, cmphasis;eWklcd. 'In addition, the SEIR does not include the irr�ental impacts of past projects while- peknowledging such development projects exist :; :in;the irtta odi'ate surroundings. See pgs. 141 .2 -3 (highway oommadal ,uses to theimrnediate -west; industrial and residential toes, east across U.S. 1 including but not linxited to Redwood B usiness Park III; Petaluma Livestock Yard to -tht north.) The SEIR states'that its consideration (rf firnrre pm)ects foor gauposes ol'wauilative , impacts Ww limited to only two projects - 1) the Redwood Technology Park and 2) a downstream flood ;control See p. 1 -35.. °There are munmruds foracrabic projects in. addition. to these two, including, intra, - alia, 1) the 30 acre Neighborhood at _Deer Creek application directly east- of 101 (connnercial and residential 2) the Rohnert park - tribal :casino 1 edeaftd_ Mans of Graton Indian,/ (unpacks' likely elated't+o +'•trafnc, Sonoma Co: Waier - Agency water, power generation, warstewater and emecgencyscrvtce i 3)'RAWer -U S.101 FmewayIntencl nge. and /orCrosstown residential smviwbnat Pctalum Btvd orrd Jesse -4m, 5)` *pomibility that the.existir g rna"*Parcel' A will.be leveled and rebuilt, tS) projects M ,the Central Petalrmta Specific Plan,project area, 7 the Johnson Prvpeny aparwnertts - .zoned for over'300 units of hdxisang 8) projects related to:anrxRtion of nmthwest4 velopnxnt at the site ofthe existing Pacific Cinema theater, 10) chain stores added'to existing retail shoppingventets at Plaza North, Plaza SoiM and 'Washrington; Square, '1'1) redevelopmenf oflCenilworth Junior High School site, 12)Aevelop rent at the, Adobe. Lumber site, 13) nzw housing projects at , Magnolia : Avenue and Paulat Lane, and 14Y expansion of Santa _Rosa Junior College. At a mii1irntm the SEIR should have cons diced those reasonably foreseeable futw+e projects Pebnwry 5, 2004 Comment Re: Petaluma Village Marketplace;, Pro.kc wd Subsequent E1R 13 82105/2004' 11:01 51d8915'33? ' f, ,_ BkfiX 134FFt�4E`Y. . FAVt 14 • which the SEIR c1*�zed -as "the level of development that tbe ultimately anticipates in the vicinity of the p olect site (p:, CR255), referencing Figtmes 2.1 arrd.2.2:1n fact, bocau:9e of the regional nature; ofrwyofthcse , impacts .(e.gtraffr, water ry dowmwwn,Petal . , .tuna bltght}„the cumulative impact analysis such consider projects oxide the "unmediate" vicinity (e.g. flood issueswithin the floodplain). T r ctanulative impact- analysis for all impacts is inadequate as it failed to consider these projects. CEQA requires t' emulative impact analysis include reasonably foreseeable' future hat the projects. This SEIR ;limits cumulativc impacts analysis to those "formally received" by City and "considered complete." In doing so; it replaces the CEQA's standard of reasonably foreseeable future projects with "absolutely foreseeable" future projects. The cumulative impacts - flaws discussed above are procedural flaws in the ElR, and am not based on a difference' in opinion nor refirted by substantial evidenc)6 ,Ifthe City were to oertify the SEIR in its current form,. it woWd be exposing'itself to judicial scrutiny on these very issues. "(1)t is vitally important that an EIR avoid:rriinrno 'zis g the cumulative impacts. Ratifier, it _must reflect a conscientious effort to provide public agencies and thegeneral public with adequaoe:and °relevant detailed 'inFosnation about them. 'A cumulative iimpact analysis which understates information concerhingthe severity and significance ofcumulative impaCU i' pecles ittde8ningfW public discussion arad skews °tire docisioraaaker's pmspecive c teeming, the cnvironment;al consequcnces of the project, the 'necessity for noxitigation treasures, and the appropriger ss of project approval.' "Morevrtain Lion Coaldioit v Fish and Game Commission (1989) 214 Cal. App. 3d 1043,1051, Kings Cr►uno;, sal ra, 221 Cal.App.3d at 723, citations omitted. IV. Inadequate Axalysis o! Propfted 11668360na Laud Use ROAD K6959M F3aw5 The SEIR failsto address any 6t gations related to land plan policies and regulations - idrylo c Nfi iggj Flaws • There is no analysis of mitigations for the hydrologic impacts of the detention basin to be qonmucW on the northeast comer of Parcel C. Zheceris:rio analysis of nuitiga ono for the hydrologic impacts ot`the new Village Drive which will cross the Petaltmw River. • T=ins no analysis of the - c$oc-tiveness of the proposed hydrologic mitigations: For example, • February S, 2004 Comment Re: Petaluma Village Marketplace Projea and Subsequent'EIR 14 02/05/2004 11: Ell BPIAN GAFFNEY PAGE 15 Nfitipfion 5. 1.1 claifiu,tominimize the. iDUWiOnVf buildings :into; the flood Plain. Yetthercis no discussion of where the buildings will be locmted: Not is there disclosure; Of'the extelu Or 16da6bedf PeWiana flood! P) WithmddisclosweOf4m, par. andp .. ject,wmvuction locafionDf0mbuilklingsand'the extent and location of the flood pLain, the Council the public are unable to"detmtnint.theeffectiverbdss the' px"-Iod.-nxitig ,on- It is,impropm to consider .a Wfigatbd to point of lem . Pact to be: mitigated so l e ly on crgimenng standards; parti&Warly whom as here water quality has been deterrnined to be §101 limited. CEQA requires that where scvcnd measures aWavailable to mitigate an impact; , the bip sit hr se l ec tin g a p aj ficulmnxmsure. should . be identified': The SM fails to thisbasis f 6 i PrOPOscd biological resoiuce mAgationS. The SEIR,defzrs mitt . ganons without specifying perfomvw= sbumiardS or cTitcTiao Th SEIR I &ijed to consider or discuss the f&sibility of Prqmwd initigitions. Obtaining permits and agieem=us from other agencies may j , 30t' be: -leasible. Any mitigation `fiscal contnbutiom from the Chelsea am Ucly Infeasible givda that Chelsea has ' failed to fi=ly pay $ . 1.2 as uimd by Resolution #91 -122 and'RooWtio'n 491 - Million Dol]= iiAaan , inWm - bmrin9 escww' Rq 136 for buffic mitigations: The SEIR fails w ana l yn rth e feasibility of t . he Proposed motigafion in ligbt of ty o Chelsea's history in this -MgWd' Likewise, dle SEIR avoids discussion Of kaSibili - f proposed mitigations LbaW'O,D,resUlb_ fr"M the Parcel A NfitigatiomMonitoring'aM ReWrtiN Plan. The -SEIR Ws to discuss mitigations to rare plarb despite the requirement'of RCSDIU60n 91-136 that a survey for such plants be undartalmL The SEIR ;Eiiled to analyze mitigations for all of the Vemes Mmeffl.on the site., including the Swrmncuto spituit,,dcspite the commemof the Dept. of Fish and GaIne. The SEIR failed to define the location of wetlands on the project and the lion an&a of mitip6ons. The SEI ba discus f ra iti ga fi or i,for the c6mgmin the 9.29- acre abandoned railroad right of w4 . gs was jijl4,a wetlands:cOrridor and wetlands y Si Sipificant v egeta tion s c r e a gemere lost with this development: Yet, the failsAO'dis,WSs anymitigati6n ftse 'impacts- JFcbnmLry 5.,,1004,GW='en;'RC: petaluuji village Marketplace seq cu Projeo and Subsequent t EIR 15 • • 024e5/2604 11" W x.10851 1 3HE) PAGE 16 The 9M vio!#tes,Rbsdlution91143,6 which required cnv.U"D=cnW ruvkW Parcels Band C to;providc'Analysis needed.tD rr�inimizeadvcrseimpwtsto Capri OwIr, um the.Pctala River mitiga and otber. y to, fc#ws, including .ripariawhabiM scascvialwe"&WW frushwpW-Tarsh.- _ The SEIR further violaiks Resolution 9 as there has been no p2i6paration of a riparian enhancernentplanIor Parccls;B and C, including identi5cation.oferoels including Setback based on emviromental values, hydrologic constraints, and? protection and preservation of existing habitat M. i t OW V.—T - - = , 0 M -TIT-7 35 - CEQA nquircs tbad where several measures am, available to naitigate an impw 4 the basis for selecting a particular measure `should W identified. TheSElR fails, t-D pro%Ue this basis for proposed traffic and cimndafion mitigaition&I The SEIR defers rnifigafioas without qxm6W perfmmanm�standards or criteria. 0 The SEIR. has: failed to,comider or discuss the fma of proposed initigatiam. Any witgation based on fiscal :contributions from the Cheisea.are hkely i6asibW given that Chelsea has failed to timely pay V 2 Mion Dollars irft an intm-st-Ix-Aringescrow as reqWred by Resolution #91- 122 and Resolution #91-136, for traffic mitigations. The -SEIR fails to analyze the feasibility of the proposed miti0on in light of CheLm"s history in this regard. In response to commcnts the SEER acknowledged due, in,the absence of4imdin, effective impleracntation of proposed traffic mitigations is in doubt. See CR.262. Likewise,. the SEIR avoids discussion o u�m f feasibility of proposed mitigations based an results f rn the Parcel A Nfitigation Monitoring and Reporting'Plan. The SEIR failed to consider feasible traffic 1willptions, includingAhose proposed by Caltrans. See CR77 (1-5). The SEIR fails, wcomplywith Resolution 91-136, Condition 51 (E)'siNuirement that specific, vicinity and "am-wide" traffic; mitiptions associated with projects on D & C shall be identified concurrent with theeenvbmmwntal analysis of the specific project. N3i624on Of CAgPUIQTivY6In CF,QA has respowled to the probkem of ina==tal enviromnental. degradation :by requiring analysis oftumulative unpacts. By avoiding proper analyms of the curnulmdve impacts, the SEIR makes to �"tialz-dfipdons for any cumulative impart. no aftempl. _discusv po February 5, 2004 Comment Ref PetalunmVillao Marketplace Project and Subsequent EIR 16 02105/2004 1*1: 02 BPIAN_G4FFNEY PAGE 17 VI. The EIR Failed to Adequately Respond to ,Comments • The governing standard for response to comments in a requires that: n preparing the final EIR, the fagcnqyf must describe the'disposifion of C6 sigmftant environmental isturs,11iiised and must,particularly set forth,,in,detail the: reasons wbythtparticulw agency) considered the dlpvelopment offt project to be of overriding, importance. A coac' ry Juso statement 'unsupported by empir*W. or ex mental Oft"sciewific authorities, or explanatory f ails inforiinformation o f kind any not only faiis crystallize issues (citation)buVaMids-no basis f6r comparison of the problcms involved with ft proposed project and, the difficulties mvdivedin.the alternatives."(0tation.) Moreover, where comments from rcspqnsiblc experts or sister:a2encies:disclose, new or conflicting Aata* -- thm that opuuons� ftause' tondern the Mcneymay noil bavefullyevaluaked-th; project andits alternatives, these c o not simply be ignmrA Them musl,'be;gogo' (Ernpl:i"s added)(Citati6noibitted.) .. .'Wd conclude #W the [agency's] fail respond with specificity1fli: W hibe EIR "to ifie.comwents and,*eoons to the, draft EIR renders tk,f final'. EIR -fatally dcf&iive." (Nople -0. County of Kern (1 974) 39 830, 941-841; StanislausXa(WaMerifage Project v. County ofShwiilatis (1 06) 48 CalAp A` 192 p The SEWS Responselto Cornmients:.(RTC)fas to 1) describe the dis PIO sition,ofeach of the sigwficantenvironmental issues .raised, 3);.%O forth ,in'detail the !reasons wb T the particular, cOmments and objections to riswere rejected, 3 set fortb why theCity considered the'developmept of the�proj ect be of overriding importanct, 4) avoid conc)[usory, statements 'unsupported by data or explanatory informatioN and 5) provide good faith, reasoned' analysis. Y)FG comments 0 DF-Gisthe state agency with responsibil ity thec.o.rMon, law public trilsudoctrim,the Fish A Game Code and the California Endangered Species Act for ftsuring the long term. S f - f FWs - comments demand good faith and reasoned Call 6tnies wildlifelarid habitat. In thixixble D analysis and detailed reasons2why the particular conirnents and"objections were rejected. The SEIR in,its current form fails meet these CEQA standards. For example, DFG comments that the 3E IR must "analyze, impacts to steelhead migrationAnd rearing'habitar because of the project's-potential to impact the Petaluma River, its riparian woodlands and _adjacent wetlands. JjFG comments that Table 6-3 and Table 6A are inaccurate' regarding, steelhead, Sacramead spittail, Uiforriia freshwater "mp. DFG comment3 the Draft SEIR conclusions regarding impacts to fish at p. 6-31 are 'Prot justified'! and that steelhead, Sacramento spittall, California freshwater shrimp,coudd be "sigiaificantlyimpacted" by a new bridge wd by utility crossings.. The RTC responds , duit , mitigationfora golijon ofthe project`- Village, Drive Bridge - would reduce clTects to steelhead. (Response F-1) UMer'CEQA, mitigation does not substitute' for the analysis b C '9 by m iti g ation can only betproposedoncc the impacts have been_ analyzed. The RTC avoids any discussion of impacts from, utility , crossings. Inaccuraciies.pointed by DFG'in Table 6- 3,Table 6A, and regarding inaccuracienn SUR February 5 2004' Cdmment Re: Petaluma VillageMarketplue Projoct and Submquaw EIR 0.2/8512 004 11:,01• 5108,9153B@ >' f`,. BR TkEY PAGE 1B discussion of'steellieail presence and spawning habitat at the project site (p:6- 21,) 'are completely ignored. No changes;are made, i n he Final SEIR and n responsive analysis is provided regarding ' timpacts" to steelbead`. DFG comments that insufficient information - ~ � is presented the Draft SEIR to justify a conclusion (p. 6 -32) that no mitigatioxiis'needed. DFG then suggests 5 separate feasible mitigations for the i npact i DFG ",foresees to special., status fish. The Utprovides no response to this comment. See Response F =6. The RTC provides no response to DFG's continent that focused surveys may be needed to confirm that there °will' be no impacts to shrimp. DFG comments tbat:the're s.no discussion ofthe impacts of theproposed river walls trail and suggests a mitigation that,:the river walk trail and any landsca p'- & bg located outside the 100 foot landscape setback. The RTC does'not provide the requested impact analysis or address. DFG's comments,' instead the RTC mitertites the proposed project. No revisions were, trade to Chapter 6 of the SEIR is response to DFG's substantive comments. i.. It_ Al., 1 1 Caltrans inquires as to the hinetable implementation ofg�:mit gation measure proposed in Chapter 7 in relation to the project development schedule. Ttze RTC references clarifications at • p CR9 to CRI4: Review of that section provides no information on the timetable for implementation inrelationto the projectdevelopment schedule. Tbus, the SEIR has failed to provide the required good faith, rensunod response or sct forth in detail the reasons why the comments and objections were rejected BAAOMD Comments BAAQm recommends "substantially more" to mitigate the air quality impacts and to reduce vehicle trips beyond the SEIR's "generic ,list disconnected from the .specific project or location," as the vehicle etnissions'for this project are mom than double the District's thresholds. Specifically, BAAQMD Mcommends consideration of reduced parking space and employee incentives to ride transit. The RTCrejmtslthe idea ofpreparing more airquality mitigations, without providing detailed reasons why the BAAQMD argd objections were rejected. Wliile the "City'Council willult inntely decide; ," thc;role ofthe EIR is.toprovidc cffective, feasible; mitigations for the Council to consider particularly where, as here, the SEIR's mitigation measures fail to to reduce "air quality impaects less than sigaif'cant. Thus, the RTC :further fails as it does not set;forth why the de-velopmentlof the project is considered of overriding importance. David Keller'COmbpents The RTC doss not respond to Kelley's comments regarding.idnpacts to employment and 0 February 5, 2004 Comment Re Petaluma Viltage'Marketplace Project and Subsequent EIR 1 82/85/2604 11:01 5108919_60 BRIAN_V(4FFNEY PAGE 19 housing (JJ -1). The,RTC,does not respond to Keller's commentsxegarding inconsistency with, each General -Plan '`'Central Goal" (JJ -2), with General Plan Chapter 8 (JJ -S), or with General Plan " Chapter 3 (JJ- 6)..Instesd"the reiterates the Draft SEIR position regarding Genial Plan "land use deli aAation," thereby failing disposition of the significant issues raised by Keller regardi GP Central Gools, and 3, andIailiing to provide the reasons why the comments were rejected._ The RTC responds'to Keller' -s . comments regarding project inconsistency with the River Access land ,Enhwoement. Specific Plans by stating the project is "generally consistent." Without explaining the degree aind`scope of the consistency /inconsistency, the RTC,has employed impermissible ,conciusory statements iirisuppbrted by data or explanatory information While true that the "City Council will determine Geneml.PIan consistency, the EMs rokis to Oroamote informed docision making by addressing "The EI . "has'aAirther role ofrespondingto comments: by the public. Here, because this SEIR does not comply with CEQA's procedural mandates, certification would be an abuse of discretion. The RTC does!not "respondto Keller's commerits`negarding the project's direct';andindirect immediate an long term adverse 'impacts to the center of Petaluma from the demise of local downtown businesses as a result of the proposed project, including adverse imposts to Central Petaluma traffic land circulation, urban blight, abandonment and decay of the central city aml.othcr existingicommercial arcas,.employmn nt Iow iitcome:housing needs(for low= income'nWl employees, . emergency.and policyservices; (JJ -2,-3, 7, 8) These are notmerely "economic" problems; but clearly have environmental„ ;physical imparts which may be significant. The RTC iagain employs conclusory, statement unsupported by data or;explanatory information and thus avoids the good faith, reasoned analysis requl =i d byCEQA. The RTC does.not respond toXeller's comments regarding a duty to use the most:recent and comprehensive information available (JJ -2), thus avoiding a "description of the disposition, 'thi's significant issue: The RTC won't touch Keller's cornment that there is piecomealing of a larger roadway -project wuch' would conncct`to a Rainier road elipunent (JJ -14). The RTC does not respond to ;Keller's comments that the, U.S. Airny Corps of Engineers told Petalumm all additional building upstream will compromise the flood control project (J7 -18). The does 6 Under CEQ& "direct and indirect "significant effects. of the project on �thc environment shall - be clearly identified and described, givin due consideration to both'the short -terra and long -term effects The,discussion:,should include relevant specifics of the area, "tbe resources involved, physical�changes, a lteiatironssAo,ecological systams, aad 6=6 induc 4 In population and safety problems caused by • lt ( including commercial and aes residential development); bealt onceiatranon, the human use of the.lan � physical changes and other . . P l aspects of the resource base, such as water, historical resouilces, scenic quality., and public services: "`CEQA Guideline 151126 emphasis' added. February- S,'Zlxl4 Comment Rec'Petaluma Village fi9srltetplace Project and Subsegtunt E[R 19 ®2/85/2U8u 11 &1 51,H91'3360 �BPIAIJ 4aFFtJEY PAGE 20 respond to KelWs comments that the SEIR does not assess the cwmulative loss of wetlands for the upper 'Petslurna.River.basin where this proposed project is located l9,). The RTC does not respond to Keller's comments that there needs to be surveys for shrimp as the. surveys conducted were too late in 7 thi season (JJ- f9), h The RTC does not m*ond`to Keller's:comments regarding the alternative ofpurchasing the Corona. Reach of the Petaluma River as a park, the need for analysis of additional species, inconsistency with the Oak:Precservatiin Zone, or the cumulative loss to the River corridor (JJ -21). Response JJ -21 solely references Response.F -9 which deals withrnone ofthese issues, but only with concerns by the RWQCB regarding the river walk trail. C7 0 February 5, 2 004 Comment Re Petaluma Village M"etplwe Project and Subsequent EIR 20 CITY OF PETALUMA, CALIFORNIA MEMORANDUM Community Development Department, Planning Division, 11 English Street, Petaluma, CA 94952 (707) 778 -4301 .Fax;(707) 778 -4498 E -mail: planning*eLpetalumaxa.us DATE: March 19, 2004 TO: Mike Bierman City Manager FROM: Mike Moore Community Development Director Betsi Lewitter, Project Planner John Courtney, Lamphier- Gregory, SEIR Consultants SUBJECT: Petaluma Village Marketplace Response to February 5, 2004, FAX from Law Offices of Brian Gaffney Per your request, the following is a response to the FAX received from.the Law Offices of Brian Gaffney on February 5, 2004. 'The 20 pages submitted by Mr. Gaffney addresses what he considers to be inadequacies of the Subsequent Environmental Impact Report (SEIR) completed • by Lamphier- Gregory for the Petaluma Village Marketplace Planned Community District Amendment. It ,should be, noted that the required 45 -day review period for the Draft Subsequent EIR originally began on December 2, 2002; however, due to lack of notification to some interested parties, the public comment period was revised to begin December 18, 2002, and end on February 3, 2003. In addition, although encouraged' but - . not required by the California Environmental Quality Act (CEQA), the Planning Commission held public hearings on the Draft SEIR on January. .14 and 28, 2001. Mr. Gaffney did not submit written comments during the public review period nor did he speak at the Planning Commission public hearings. His letter was received by the City of'Petaluma on February 5, 2004; one year after the public review period on the DSEIR had formally ended. After the January 28, 2003, Planning Commission meeting, the City's. EIR consultant, . Lamphier Gregory, .was directed to prepare the FSEIR, which provides responses to comments received on the Draft SEIR and clarifies any errors, omissions, or misinterpretations., The Planning Commission reviewed the Final SEIR on April 22, 2003, at which time, additional public input was taken. The Planning Commission then recommended certification of the SEIR to the City Council on a 5 -1 vote. The comments •from the letter are presented in italics,, with the related Staff response immediately following in plain text. The Planning Commission's recommendation that SEIR be approved is not binding on the City Council: • The City Council takes- independent action on the proposed project. It can either certify the SEIR as adequate and complete or disregard the Planning Commi'ssion's recommendation and dcide not to certify the SEIR as adequate and complete. Substantial changes in the project were made in the Planning'Commission,'s subsequent PCD approval hearings. Although the Planning Commission hearings have .resulted in some modifications to the description of the Petaluma Village ;Marketplace Project as defined in the SEIR, the modifications would not.result in any new significant .environmental effects not evaluated in the SEIR, and would not be expected to increase the magnitude of any significant Project- related environmental effects identified in the SEIR. In 'a number of cases, the modifications to the Project Description have been -made to further reduce potential environmental effects identified in the SEIR. The Petaluma River Council and David Keller have had no opportunity to address this Council with respect to the. changing Project Description and how it affects the SEIR. The City Council is: holding a public hearing on, the SEIR to provide, an opportunity for comments related to the environmental evaluation of the Petaluma Village, Marketplace. I. The SEIR,Fails to Include an Accurate, Stable and Finite Project Description The SEIR evaluates the project as defined at the time the DSEIR and FSEIR were prepared • (November 2002 and April 2003, respectively), which consisted of 173,400 square feet of`retail space on Parcel R and a 10 to 12 screen :movier theater and 36,000 square feet of retail space on Parcel C. Any,modifications that may have been made in the Project Description since that time have not been incorporated in the. SEIR. These modifications include: 1. A reduction in the size of the retail spaces on Parcel B to 'no more, than 163,000 square feet divided into a minimum of,two buildings. 2.- The ,installation of a view corridor between the buildings on Parcel B through 'which Village Drive was rerouted to ;pass'through. 3. The extension of the Riverwalk to the most. southern point of Parcel B. 4. An irrevocable offer of dedication by the Chelsea Group to the City of a conservation easement over the triangular portion of Parcel B south. of Deer Creek'. 5. A maximum parking ratio on Parcel B: of 5 spaces for every 1,000 square feet of retail space. 6. An . increase in the setback from the Petaluma River to a minimum of 100 feet and where practical, 15,0 feet. 7. A maximum of 81,00.0 square feet of retail space on Parcel C, to be divided between two separate buildings to again create a view corridor between the buildings. The Planning Commission then requested additional, changes, which were reflected on the plans reviewed'by the Commission at their December 9, 2003, meeting, as follows: 2 1. The parking on Parcel B was, reduced to a4.75:1,000 ratio; approximately 30% are to be compact size per City standards. 40 spaces were moved from Parcel B to Parcel C. 2. All parking was removed from the view corridor on Parcel B. 3. The ,setback. from. the Petaluma River was _increased to an average, of .150' for Parcel B and the setback from both Capri and Deer Creeks were increased to a minimum of 50' ; per the requirements of the Petaluma'River Access and Enhancement Plan. City Staff has determined ;than these modifications would not result in any new significant environmental effects not :evaluated in the SEIR, and would. not be expected to increase the magnitude of any significant ..Project - related environmental effects identified in the SEIR. In a number of cases, the modifications to the Project Description have been made to further reduce potential environmental effects. identif ed in the SEIR. CEQA requires that a brief summary of the proposed project be included in the draft EIR. Although case law has .determined that a project description must be accurate and consistent throughout the. EIR, the CEQA process will often result in project changes reducing the severity of environmental ,effects. "The CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold' of the initial project; indeed, new, and unforeseen insights may emerge during investigation, evoking revision of the original proposal." (Kings County Farm Bureau, supra, 221 Cal. App. .3d at pp. .736-737.) "CEQA compels an interactive process of assessment of .environmental :impacts and responsive project modifications which must be genuine. In short, a project must be open for public discussion and subject to agency modification during the CEQA process ". (Concerned Citizens of Costa Mesa, Inc. v. 32' District Agricultural Association (J 986) 42 Cal. 3d 929, 936 [231 Cal. Rptr. 748].) If an agency, after completing an EIR,, ultimately chooses to approve only a portion of the larger "project" analyzed in the EIR, such action does not retroactively invalidate the project description ". (Dusek, supra, 173 Cal.-App., 3d at pp. 1040 - 1041.) The SEIR project description fails to fully describe any of the project's stream crossings and modifications. All stream crossings proposed. as part of the Project Description are shown in REVISED DSEIR Figure 1.3: Project Site Plan on page 'C &R -362 of the FSEIR. As noted on page 1 -36 of the Draft SEIR, the project will be subject to approvals and permits from the U. S. Army Corps of Engineers (USACOE), the U. Fish and Wildlife Service (USFWS), the California, Department of Fish and Game (CDFG;) and the Regional Water Quality Control Board. Prior to the submission of „applications for permits from these agencies, pre- construction surveys will be required. The SEIR fails to provide" a project 'description of the nature, scope and design of streambed alterations for such Streambed Agreements. Streambed Alteration. Agreements .are negotiated between the two involved parties. (the project applicant and the California. Department of Fish and Game) following completion of the appropriate level of environmental.review (in this case, certification of the SEIR). 3 Neither the Final EIR nor this proposed SEIR include the changes in the 8.28 -acre abandoned railroad right of way, in their project description. The SEIR evaluates the. Petaluma Village, Marketplace Project as shown in REVISED DSEIR Figure 1.3: Project Site Plan on page C &R -363 of the FSEIR. All development proposed at the time of DSEIR. publication (November 2002), including .any development. proposed within the abandoned railroad right- is evaluated in the SEIR. II. The SEIR Fails to Adequately Describe the,Environmental Setting The SEIR fails in this regard as it includes no description of the extent of the Petaluma River floodplain nor a floodplain map. The SEIR contains :an extensive discussion of the Petaluma, River floodplain and related impacts. Local flooding issues are addressed on pages 5 -11 through 5 -16; of'the DSEIR, and Project - related effects associated with flooding are evaluated on pages 5 -20 through 5-22 of`the DSEIR, with text modifications as indicated in the FSEIR. Those portions of the Project .site that' are Within the floodplain of the Petaluma River and tributaries are shown in Figure N -B -2: FEMA FLOOD ZONE AND CROSS - SECTION LOCATION MAP in DRAFT ENVIRONMENTAL IMPACT REPORT' :RIVER OAKS/PETALUMA, OUTLET VILLAGE � MASTER PLAN (March. 1990) and FSEIR Figure 2: Floodway and Floodplain in the Vicinity of the Project Site (page C &R- 409): . The SEIR's environmental setting also does not include any description of the °parcel on which Village Drive is proposed to be located between the Petaluma River crossing and Petaluma Boulevard North.. Without` this information regarding the, baseline physical conditions of the project the EIR cannot` adequately inform the City and the public of whether impacts will likely be significant. The FSEIR addresses the area through which the proposed Village Drive would pass on pages C &R -383 and C &R -384: The proposed Village Drive. would pass through the western portion of the .Noyes Property (048 -142 - 013), between the: Petaluma River and Petaluma Boulevard' North. This vacant parcel is not owned by the .Project Applicant, and an adequate right -of -way for the proposed Village'Drive would need' to be acquired by the Project, Applicant prior to any bridge and roadway construction. As shown in the aerial photograph of;the'Proibet site and vicinity (Draft Subsequent EIR, Figure 1.2 page 1 -3), there is limited. vegetation along -the western edge of the Noyes Property, and the construction of the proposed roadwaywould not be expected to entail adverse effects on sensitive biological resources. The construction of the proposed roadway would not be inconsistent with the adopted plans and policies of'the City of Petaluma, and would not divide an existing community. The construction of the proposed 'roadway would not result in any population or employment growth impede employment growth or.result in housing overcrowding. The: proposed roadway would not expose people or structures to potential substantial adverse 4 geological effects, (,i.e ,, earthquake fault;rupture, strong, seismic ground shaking, seismic - related ; ground failure or landslides), although mitigation identif ed in Chapter 4 of the Draft 'Subsequent EIR would need to be employed to reduce the possible adverse effects associated with soil. expansion and ground corrosivity to .levels of insignificant. Although a portion of the proposed roadway is within the Petaluma River floodplain, compliance 'with the City's "Zero Net Fill" policy would. be expected to reduce potential adverse effects associated with flooding (no portion of the proposed alignment through the Noyes Property would be within the Petaluma River ,floodway). Given the soil characteristics in the area, construction of the proposed roadway would not be expected to have a significant effect on groundwater recharge, or any adverse effects on groundwater resources. Compliance with Best Management Practices during construction, and with the measures identified in a Stormwater Pollution Prevention Plan on an on -going basis, would be expected to reduce potential adverse effects on water quality to a level of ?less than significant. The traffic analysis presented in Chapter 7 of the Draft Subsequent EIR has been conducted. takirg the proposed Village Drive into account, and mitigation has been identified that would reduce potential unacceptable levels of service, at the intersection of Village Drive and Petaluma Boulevard North to a level of less than signifcart. Implementation of measures identified in Draft Subsequent EIR Chapter 8 to reduce construction - related air quality leff6cts would be expected to reduce possible adverse air quality impacts associated, with roadway construction to a level of less than significant, and the operation of the proposed Village Drive would not result in any change in the estimate of Project- related regional air pollutant emissions. Implementation of measures identified in Draft Subsequent EIR Chapter 9 to reduce construction - related noise effects would be expected to reduce possible adverse noise impacts associated with roadway construction to a level of less than significant. Given the existing 'and anticipated noise :'levels along Petaluma Boulevard North in the vicinity of the Project site (see Draft Subsequent EIR Table 9.3, page 9=11), anticipated traffic along the proposed Village: Drivels not expected to generate a significant increase in noise levels that would,.adversely affect sensitive receptors. The construction of the proposed roadway would not require,'the provision of any additional police protection facilities, fire protection facilities, school. facilities, parks or recreational facilities, water service, sewer service, telephone service, gas and electric service or solid waste disposal service. Although streetlights would be installed along the proposed roadway, the pavementitself Would follow , the natural .contours of the property, and the construction and operation of the proposed Village Drive would not be expected to .have any significant adverse visual or aesthetic effects. The vacant Noyes Property does not support any apparent historical resources,, but'complance with the Recommended Actions identified on page 12 -3 of the Draft Subsequent EIR could reduce any potential adverse. effect on unknown archaeological resources that are not evident at the site that may be disturbed during construction, to' a level of less than significant. IIL Inadequate',Analysis..of Signicant Adverse Environmental Impacts • 5 The Impacts and Mitigation section (Land Use and Planning Policy) fails to include the proper level of analysis There is no , discussion of the facts and rationale regarding th&,project's consistency, with. land use plans. Moreover; there is' no conclusion of the significance or insignificance of this project! The Council and the public are only informed that .the project is "generally consistent. " This implies in one or more undefined ways the project is inconsistent with the Petaluma General Plan ( "GP'), the Petaluma River Access. and Enhancement Plan (PRAEP) and `the City's Zoning Ordinance. Given , thaat aT conflict with a land use plan, policy or regulation, according to the SEIR is significant; this is a fatal omission. As indicated in RESPONSE 0-5.on FSEIR,page'C &R -123, in Chapter. 2, the'Draft Subsequent EIR indicates that the proposed Project is consistent with the approved Ricer Oaks/Petaluma Factory Outlet Village Master Plan Program,, is consistent with the current Petaluma General Plan and use designation for the site, is consistent with the current zoning for the site and is generally consistent, with the General Plan and Petaluma River Access and Enlancement Plan .goals and policies. Decisions regarding Project consistency with approved plans and polices of the City of Petaluma ultimately rest with: the City Council, and not with the preparers of the Draft Subsequent EIR. The prior EIR determined ,hat a minimum setback of 120 feet from the highway should be required for development of Parcels B and C to serve Policy 7. This project only,has a 100 foot setback. 'This SEIR concludes that the project is consistent with Policy 7 and' that the project does not rise to the level of `potential "' environmental impact. The SEIR offers no analysis. or discussion as to how it readied these conclusions. The context for 'the discussion of the required setback from the Highway is shown in. the text of Policy 7 -. The the Petaluma. River and the west .side of Highway 10 f ;from Corona Road to the railroad, right- shall be developed in a;manner that strikes a balance between the industrial uses allowed and the desirability of keeping freeway frontage lands open.. .In discussing Policy 7 on page 2 -9, the ,DSEIR states "The prior EIR determined that the Outlet Village on Parcel A, which included ,:a minimum setback of 120 feet fiom the 'highway, would serve Policy 7, and that the Community Development Department should ; require a similar buffer or setback for the development" of Parcel B and Parcel C. Policy 7 does riot establish a setback requirement, and the Project site is now zoned for "Special Commefc al and not industrial uses. The, City Council will `ultimately determine the whether or not the proposed 100 -foot setback would serve Policy 7. The prior EIR determined that requiring the floor elevations to be above the I00 -year flood plain would assure consistency of the project with Policy 7. However, we now know that the floor elevations were off. See Comment JJ-18 at p. 0209. The consistency : determination . does not take this inform, ation into account. Further, there is no determination of significance. Policy 7: The City shall regulate land; uses in flood. prone :areas and .should allow development in those areas only with appropriate mitigation. 0 As' indicated in RESPONSE JJ -18 on FS'EIR pages C &R -263 and C &R 7264 "Uncertainty is inevitable in the prediction of flood conditions, and can only be addressed by 'conservative assumptions and the incorporation of safety, factors in planning new development. New information will y . always be developing ;that ,rnay change: our lunderstanding of flood, conditions." Policy 7 does not set specific requirements for flood mitigation, and the City will determine what is appropriate mitigation for each project that may be proposed in a flood -prone area. The City Council will ultimately determine whether the floor elevations proposed at the Project site represent appropriate mitigation consistent with Policy 7. The SEIR determines that ithe project is consistent despite acknowledging that Village Drive Bridge would be constructed through a Preservation Zone where the PRAEP prohibits development of any kind. According to the SEIR, inconsistency with this policy should be significant! Yet, the ,SEIR avoids any statement regarding significance and in doing so also fails to discuss feasible effective mitigation measures. The location of the proposed Village Drive crossing in relation to'the policies of the PRAEP is addressed on DSEIR pages 2 -24 and 2 -25 -River Oriented Development' Zone Policy 24 on Page 81 of the PRAEP states that the- number of roads and bridges across the river should be minimized. It further states, "In the river -reach between Corona Road and Lynch Creek, future development is likely to require bridges across the Petaluma River and across tributaries. These roads must pass through Restoration, Preservation and Buffer Zones:" PRAEP Programs 24a and 24b on the same page state that road bridges should be located in places of least habitat sensitivity and where damage to existing habitat is unavoidable due to bridge construction, damages should be mitigated to the extent feasible in adjacent areas within the greenway. The location of the proposed bridge has been selected to avoid potential, effects to established oak groves /riparian woodlands located to the north and ,south of the proposed crossing within the designated protection zone. Development of the proposed, bridge4n this area would be required to comply with the Supplemental Guidelines of the PRAEP. ' The SEIR does not adequately analyze the potential signif cant impacts of farmland conversion. The SEIR reveals that there may be "interference " with agriculture,. 'but not "to such an extent that it would create pressure to convert. " However, elsewhere-the SEIR states that "over time, the on -going conversion would be expected to permanently change the existing visual character Of rural Petaluma. The adjacent livestock yard is an integral piece of agricultural infrastructure and its loss will have cumulative impact on farmland conversion throughout the region.. CEQA requires further analysis of this issue. Further, the SEIR offers no conclusion as to whether there will be a significant impact: from farmland conversion. As indicated o DSEIR page 2 -26 the significance criteria for Project =rel'ated effects associated with the conversion of agricultural land relate to Prime Farmland, Unique Farmland or Farmland of'Statewide Importance. No portion of'the Project site has been designated as Prime Farmland, Unique Farmland or Farmland of Statewide Importance, and as indicated on DSEIR page 2 -27, the Project would not result in the conversion of such farmlands. As indicated on DSEIR pages 2 -27 and' 2 -28, development of the Project site as proposed would not be expected to interfere with on -going agricultural operations in the vicinity to such an extent that it would create pressure to convert these activities to non - agricultural uses. Potential conflicts with on -going 7 agricultural operations are more commonly associated with adjacent residential development, • rather than with adjacent commercial development, and the placement of parking areas at the Project site could be expected. to provide an adequate buffer between proposed commercial structures and nearby agricultural. activity: In addressing cumulative impacts, the DSEIR on ;page 13 -5 states: "Although the General Plan anticipates development at the Project site, the proposed conversion of two vacant parcels to commercial use would contribute to a cumulative reduction in the number of "open" areas currently seen by those traveling along the U:S. 101 corridor in the Petaluma area. Overtime, the on -going conversion of additional sitesi in this, corridor which currently provide "open" visual features would be expected to permanently change the; existing visual character of what has Gong been perceived as a rural portion of Petaluma." As' this paragraph deals solely with cumulative changes in.the visual character of lands along�U.S. 1011, nothing in this paragraph Js related',to the conversion of agricultural land, or possible effects on agricultural uses within the region. . The SEIR fails, to analyze compliance of the proposed project with all applicable land use plans, policies ands :regulations of other agencies with jurisdiction over the. project, including the California Department of Fish and Game; the US. Fish and Wildlife Service, the U.S. Army Corps of Engineers, Federal Emergency Management'.Agency and the Regional Water Quality Control Board. Project compliance with the regulatory requirements of these agencies is addressed.'in DSEIR chapters on,Hydrology, Drainage Water Quality and Geomorphology (for U.S. Army Corps of Engineers Federal Emergency Management Agency and Regional Water Quality Control Board) i and Biological Resources (for California Department of Fish and Game U.S. Fish and. Wildlife Service and U.S. Army Corps of Engineers): The SEIR fails to analyze compliance with Conditions 51, 52 54 and 55 of Resolution 91436, which are clearly applicable land use regulations. These conditions are,addressed.on pages 1 -5 through 1 -8 of the DSEIR. As indicated on DSEIR page 1 -7, . "The current application is ; intended to comply with the requirements set, forth in Condition Number 51 Condition Number 52 Condition Number 53, Condition Number 54 and Condition. Number 5'5;" The City Council will ultimately determine the whether the Project complies with these conditions. The failure to analyze compliance with each of the above is a procedural violation,of CEQA. Each of the issues raised above have been. addressed in the SEIR. As indicated on FSEIR page C &R -2, "CEQA does not require technical perfection, in an EIR, buv rather adequacy, completeness and a good- -faith effort at ..furl disclosure. A court does not pass upon the correctness of an EIR's environmental conclusions, butr only determines if the EIR is sufficient as an informational document ". • • Hydrologic Impact, Analysis Flaws The significance criteria is flawed; as it ,doesn't recognize as a significant impact inconsistency with the City's requirement that "finished floor elevation for new construction in the flood plain must be two feet above the 100 year flood elevation ". As indicated on DSEIR page 5 -18, the significance criteria used in the SEIR analysis of hydrologic, drainage, water quality or geomorphic impacts 'are derived from standard engineering practice, CEQA. Guidelines, and the floodplain development requirements of both the City of Petaluma and FEMA. The DSEIR states on page 5 -22 (Footnote 1): "The design finished floor elevations are at least four feet above the current FEMA base .flood elevation (see Table 5 -6)." The analysis of flooding impacts is flawed, as there is now evidence before the City that the finished floor elevation for new construction in the floodplain is not , two feet above the 100 year flood elevation. The November 2002 : DSEIR used the- most current information, available at the time of publication, and states on page, 5 -22• (Footnote 1): "The design finished floor elevations are at least four feet above. the, current FEMA base flood elevation (see Table 5 -6)." The conclusion that an increase in runoff due to the project will have an insignificant impact is improper where based on conditions in the Petaluma River, rather than on the Petaluma floodplain. As indicated on DSEIR page 5 -19, "...the Project site's location and size in relation to the Petaluma River watershed (emphasis added) are such that site runoff will peak far earlier than the Petaluma River at this location„ and thus have a negligible effect on peak flows in the river. Only a small fraction, ofthe runoff from the site will contribute to river flow at the peak of the river flood flow, which is the controlling factor for flood hazard impacts. ... Therefore, an increase in the local 100 -year peak runoff rate due to the Project does not represent a significant impact to. flood conditions in the Petaluma River." There is no analysis of the hydrologic impacts of the detention basin to be constructed in the northeast corner of Parcel C. The design for the proposed detention basin has not been finalized, but the revised Mitigation Measure on FSEM page R46 provides additional detail on the functional requirements that the basin would be required to meet: Mitigation Measure 5:2.1: Detention Basin on Parcel C. A detention basin is planned for'the Project; site on the northwestern edge of Parcel C, adjacent .to Corona Creek. The • primary function of this basin will be to reduce the flow of water quality constituents to the Petaluma River. The basin will be sized to contain a 2 -year, 24 -hour storm or an 9 alternative stormwater quality design "storm as acceptable to the Regional Water Quality . .Control Board. It will also be consistent with the design criteria for Extended (Dry) Detention Basins specified in. Start' at the Source (BASIVIAA 199:9) _(personal communication Wayne Leach CSW S6 These.:design cri teria•include'the following•. an average residence time of 24 hours interior slopes no , greater than 3 horizontal to 1 vertical, energy dissip at the inlet, a forebay for initial settling: minimal norid area wttn'Ceptns less than 18 inch to. discourage mosquito reproduction, and a reeular maintenance schedule. There is no analysis of the hydrologic imp_ acts of the new Village Drive, which will cross the Petaluma River. The FSEIR addresses the area through which the proposed Village Drive would pass on pages C &R -3'83 and C &R -384, and includes the following statement related °to hydrology and water quality issues: Although a. portion of the proposed roadway is the Petaluma River floodplain, compliance with the City's "Zero Net Fill" policy - would be expected to .reduce potential - : adverse effects associated with flooding (no portion of the proposed alignment through the Noyes Property would be within the Petaluma River floodway). Given the soil characteristics in the area, construction of the, proposed roadway would not be expected to have a significant effect on groundwater recharge, or any adverse effects on groundwater resources. Compliance with Best Management Practices during construction, and with the: measures, identified in a Stormwater Pollution Prevention. Plan on an 'on -going basis, would be expected to reduce potential adverse effects on water quality-to a.level of less than significant. Biological Resources Impact Analysis Flaws The SEIR violates Resolution 91 7136 which required environmental review of Parcels B 'and C to provide analysis of impacts needed to minim_ ize adverse impacts to Capri Creek, the Petaluma River and other natural physical features, including riparian habitat, seasonal wetlands and freshwater marsh. Project - related impacts to seasonal wetlands and riparian_ habitat are addressed on. DSEIR pages 6 -25 and 6 726. Emergent marsh at the Project site is addressed on DSEIR page 6 -3,, and no Project- related impact to these areas was identified. The SEIR fails to discuss impacts to rare plant despite the.requirement of Resolution` 91 -136 that a survey for such plants be undertaken. As indicated :on DSEIR page 6 -6, no special status plant species were observed during surveys conducted in the Project area in 1997. 0 10 The SEIR failed to analyze impacts to all of the species present on 'the site including the Sacramento spittail; despite the comments of the Dept. of Fish and Game'. See RESPONSE F -3, on FSEIR pages. C &R =67 -and C &R -68 for a discussion of the Sacramento splittail and potential Project- related 'impacts to this species. Splittail are presently found primarily in the Delta, -Suisun Bay, Suisun Marsh, Napa 'River; Petaluma River and other parts of the Sacramento -San Joaquin estuary. Sampling by CDFG between 1992 and 1998 has shown that splittail have continuously lived in the Petaluma River ,since the 1980's and have successfully spawned in. 1992, 1995, and 1998. This species was also captured during construction of the Petaluma.Flood` Control project; however it was likely that its presence was a result of high tides and flow, rather than active use of habitat. Sacramento splittail have been known to use habitat downstream of the Project site for spawning, particularly in areas closer to San Francisco Bay. Instream construction may impact spawning or rearing individuals through increased turbidity, siltation, or loss of habitat. However, implementation of the measures discussed in the Construction of Village Drive Bridge section of the Draft Subsequent EIR's Project Description (Chapter 2, see REVISIONS to page 1 -16) would reduce potential adverse effects to a level of leg's than significant. Traffic and Circulation Impacts Analysis Flaws Parcel A has 962 parking spaces - Parcel B is projected to have 527 parking spaces and Parcel C 923 parking spaces. The SEIR fails to analyze the impact of traffic circulation within and among the mall parking lots. Internal circulation at the Project site was evaluated by W -Trans for the EIR, and is addressed on DSEIR pages 7 -27 and 7 -28, where: it indicates that the proposed site plan provides adequate on- site circulation and access to parking and driveway locations. The SEIR fails to analyze traffic impacts of the new Village Drive, which will cross Petaluma River. The FSEIR addresses the area. through which the proposed Village Drive would pass on pages C &R -383 and C &R- 384, which includes the following statement: The traffic analysis presented :in Chapter 7 of the Draft Subsequent EIR has been conducted taking the proposed Village Drive into account, and mitigation has been :identified that would reduce potential unacceptable levels of service at -the intersection of Village Drive and Petaluma Boulevard North to a 4evel of less than significant. The' SEIR fails to comply with resolution 91 -136, Condition 51 (E) 's requirement that specific, vicinity. and "dr..ea- wide" traffic impacts associated with projects on B &, C shall be identified concurrent with the environmental analysis of the specific project. Traffic impacts associated with the proposed Project (the development of Parcel B and Parcel C) are evaluated in DSEIR pages 7 -14 through 7-27. The SEIR fails to. comply with Resolution 91 -136, Condition 51 (E) 's requirement that traffic analysis for Parcels B and C shall include evaluation of the potential need to require shared parking agreements, with Parcel A. and the potential need of prior - completion of the east /west overpass /interchange prior to project approval. The level. of parking to be provided .on Parcel B and Parcel C is sufficient to support the uses proposed on those parcels, and does not require shared parking agreements with Parcel A. As indicated on DSEIR pages 7 -17 and. 7 -25, the completion of a new east -west cross town connector.. and U.S..101 ;interchange would mitigate operational impacts at Petaluma Boulevard North/ Washington Street to levels that are less than significant. In the absence ,of this connector, however, a .significant cumulative impact would be expected to occur at this intersection either with or without the proposed Project. The SEIR does not include discussion of compliance with Resolution 91 -136, Condition 54. The 15 intersections evaluated in the SEIR were selected to provide a comprehensive understanding of`Project- related traffic impacts in the vicinity of the Project site given current traffic conditions consistent with the intent of Condition Number 54 from Resolution 91 -136. Failure to Analyze the Whole of the Project The SEIR and' 1 EIR have failed to analyze the whole of the project. Development of the abandoned railroad right of way has not been subject to CEQA analysis as part of the 1990 Final EIR nor this proposed SEIR. Significant vegetation was lost, a riparian area was filled, ,and a wetlands corridor and wetlands acreage were lost. Similarly, the SEIR fails to, include analysis of the ,impacts from development of the parcel on which Village Drive is proposed to be located between the Petaluma River crossing and Petaluma Blvd. North., The SEIR evaluates the Petaluma Village:.Marketplace Project as shown in,REVISED DSEIR Figure 1.3: Project Site.Plan on page C &R -3:63 of the FSEIR. All development proposed at the time of DSEIR publication. (November 2002) including any development proposed within the abandoned railroad right -of -way; is evaluated in the SEEIR., The FSEIR addresses the area through which the proposed Village Drive would pass on pages C &R- 383 -and C&R -384. Failure to Analyze :Indirect Impacts The SEIR fails to ,include analysis of the environmental impacts of the demise of local downtown businesses as a result of the proposed project, including adverse impacts to downtown /Central Petaluma traffic and circulation, urban blight abandonment and decay of the central city and other commercial areas, employment, emergency and policy services. Under CEQA, "direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short -term and long term effects ,, The discussion should include relevant specifics of the area, the resources involved, the physical changes alterations to ecological systems, and changes induced in population distribution, ,population concentration, the human use of the land (including commercial and residential development), health and safety problems caused by the physical changes , and other aspects of the resource 12 base such as water, historic resources,, scenic quality, and public services: The SEIR has failed to meet these requirements: As indicated on, - . FSEIR ;RESPONSE,. 0 -3 (page .0 &R -122), . The Draft Subsequent Environmental Impact Report does not evaluate the, economic impacts that may be associated with the development of the Project site as proposed (i.e., the use of City redevelopment funds, competition between unidentified future tenants at the Project site and existing retailers in downtown Petaluma and elsewhere etc). Although economic considerations may be important in any City decision on the ,proposed Project and should be addressed prior to action on the proposed Project, under CEQA such economic issues are beyond the scope of an Environmental Impact Report, as -they do not relate directly to physical changes in the- environment. Failure to Identify. All 'Unavoidable Impacts The SEIR failed to identify Seismic Hazards as unavoidable despite concluding that even after mitigation they will be potentially significant. The SEIR also did not analyze all significant impacts identified by the 1990 EIR for Parcel A where mitigations were never implemented and thus the impacts are unavoidable. The 1990 EIR evaluated seismic hazards, and included the following statement with respect to mitigating seismic hazards (see DSE1R pages 4 -4 and 4 -5) "These are considered to remain potentially significant because although the proposed mitigations are standard, acceptable approaches to reducing the significance of impacts, there is no way to entirely reduce the potential for adverse impact,. The EIR preparers do not consider these impacts to be included in the City's statement of overriding considerations, however, but recommend that they be handled through .the. Mitigation Monitoring program for this project In some .instances [e.g., -air quality and water surface elevations in Capri Creek] the eventual level of development and project design for Parcels B and C' will' ,affect the degree of significant of'impact&. Design decisions for the future project can maintain, impacts at a level of insignificance. ,Impact potential due to seismic hazard, water contaminants and flooding can be rendered insignificant through future project design." Although any development within a seismically sensitive area such as Petaluma may be subject to adverse impacts during a major seismic event, compliance with current Building Code requirements can be expected to reduce the potential for these impacts to an acceptable level. The SEIR evaluates the Project:as proposed (the development of Parcel B and Parcel C), and does 'not address environmental imp_ acts or mitigation measures associated with the previous development of Parcel A. The SEIR Fails to AdeguatelyAnalyze Cumulative Impacts The SEIR summarily concludes, without discussion, that no cumulative impacts are expected "in combination with other pending development applications that could cause si ni scant population, housing or employment impacts. This conclusion is flawed for at least three reasons: 13 An EIR must provide. analysis _ not simply unsupported conclusions; only thus may it serve its intended purpose of informing Petaluma decision - makers and the public. 0 2. By only—considering 'pending" development applications the SEIR necessarily does not analyze the "change in the environment resulting from the project when-added to past; present and reasonably foreseeable projects.." "`Pending development applications'; certainly, do not include past,projects. Moreover -, there is no case law or CEQA guideline which so narrowly restricts "reasonably, foreseeable projects' to "pending" development applications. Despite that the public, including David Keller.., apprized Chelsea ofnumerous reasonablyforeseeable projects in comments,on the DraftSEIR, no adequate cumulative impact analysis has been conducted. 3. The limitation. to ``significant" population, housing or employment, impacts contradicts the CEQA ,mandate that a cumulative impact analysis consider "incremental impacts which may be,indiwidually minor but cumulatively considerable. Oddly,, the SEIR next jumps to a different conclusion that because the proposed project would not exceed the development allowed in the General Plan, "there would. be no change in cumulative. impacts associated with the [proposed] project that have not been considered, in the environmental evaluation of the General.Plan. This too is flawed. As - discussed above, such conclusory statements avoid the required analysis of past, present and reasonably -foreseeable projects. Even if the "amount and intensity" of development had not been "exceeded," this does not mean ipso facto that the impacts are. equivalent; each development has its own unique footprint and design which were not known when. the General Plan EIR. was certified and which may also affect potential. environmental impacts. Further, the purpose of a General Plan EIR is to evaluate the, impacts of the land use constitution then adopted. Mere conformity with a general plan, in and of itself will not justify a finding that: the project has no significant environmental effects. Neither the General EIR on its face ,nor the City at the time of certif cation intended for that EIR to.supplant the analysis required.:in:EIRs for specific projects. Neither -the General: Plan EIR' or the 1990` EIR for Parcel. A. adequately addressed the regional and areawide cumulative impacts of the proposed .Petaluma Village Marketplace project. Notably, projects are foreseeable now which may not have been reasonably foreseeable at the time of certification of the - General Plan EIR of the 1990 EIR for Parcel. A. Thus a cumulative impact analysis today could, differ. Cumulative impacts associated with the Project am addressed on DSEIR page 13 -5, as well as in Chapter 5; Chapter 7 and Chapter 8 of -the: DSEIR where related to flooding issues, traffic and air quality. Development of the Project site has been anticipated under the General.Plan, and the General Plan EIR addressed the area -wide cumulative impacts that could be anticipated with General.Plan buildout;(which would include special commercial development at;the Project site). However, potential Project - specific cumulative: impacts associated with. flooding, traffic and air quality received. considerable attention in the relevant chapters of the DSEIR. At the lime the DSEIR was published, 'CEQA Guidelines defined "probable future projects in Section 15130 (b) (1) (B) [2] as follows:' "Probable future projects" may be, limited to those projects requiring an agency approval for an application which has been received at the time the 14 notice; of preparation 'is released, unless abandoned by the applicant; , ;projects, included in an adopted capital improvements program, general plan, regional transportation plan, or other similar plan; projects included in 'a. summary of projections of projects (or development areas designated) in a.,general plan or,a similar plan; projects,anticipated, as,.later.phase of:a previously approved project (e.g. a subdivision); or those public agency projects for which money has been budgeted." In the current CEQA Guidelines discussion of Section 151 "30, it states: "When 'analyzing the cumulative 'impacts of' a project under 15130 (b) (1) (A), the Lead Agency is required to discuss not only approved projects under construction and approved related projects not yet under construction,, but also unapproved_ projects current under environmental review with related impacts or which result in significant cumulative 'impacts;" The inclusion of possible future development :proposals that may have received some media attention at the time of NOP issuance, but that have not been formally submitted to the City for review or environmental evaluation would lead to speculation in developing the cumulative analysis of the proposed Proj ect. As indicated in RESPONSE 0 -4 on FS'EIR pages C &R -122 and C &R -123, The cumulative analysis presented in the Draft Subsequent EIR was based on the traffic conditions anticipated to be present in the year 2015 (for Project- related cumulative traffic impacts), and on the assumed completion of two projects in the vicinity of the Project site that had been formally submitted to the City of Petaluma for review when the Notice of Preparation for the Draft Subsequent EIR was distributed (the Redwood Technology Center project, and the on -going U.S. Army Corps of Engineers flood control project). Other development projects "that have been formally submitted ® for City review since publication of the Draft Subsequent EIR in. November, 2002, are not reflected in the Draft Subsequent EIR cumulative analysis (except generally as contributors to local traffic in 2015 under General Plan buildout). Future development projects on parcels in the vicinity of the Project site which have not yet been formally submitted to the City of Petaluma for review are not reflected in£the Draft Subsequent EIR cumulative analysis. Cumulative Traffic Impact Analysis Fldws The SEIR concludes that "as discussed in Chapter 7, " the proposed project "would contribute to the projected cumulative increase in traffic along roadways and at° intersections in the vicinity. " From this statement, it is impossible to say if the EIR is informing the City and the public either if there is a cumulative impact or if this impact is significant. Thus the SEIR does not comply with CEQA. Guideline Section 15130 which requires that the discussion of cumulative impacts reflect the severity of the impacts and their likelihood of occurrence If the cumulative impact is not significant, the SEIR is required to briefly indicate why the cumulative impact is not significant identifying facts and analysis supporting that conclusion. Reference to Chapter 7 does not disclose a proper or full cumulative traffic impact discussion. Under the title `future conditions '; 'the SEIR reveals that the Level of Service criteria were applied , ,to 4 scenarios. "at is missing is examination of past plus present plus future projects. Indeed, the modeling. which included undisclosed historical trends -was replaced apparently because the model yielded results characterized only as unstable. • 15 Also, because the SEIR does not ,reveal what projects were included in the calculation of 'future traffic anticipated for 2015 ", it is impossible to 1know if all "reasonably foreseeable projects" were included as required by CEQA. it certainly appears not, elsewhere the SEIR states that only. two. projects Were included in the cumulative analysis — the Redwood Technology Park and a downstream flood control. project. As discussed infra, there are numerous reasonable foreseeable. projects in addition to these two..Thus'the cumulative traffic analysis . is again ' because of its myopic focus in clear contravention of controlling CEQA law. DSEIR page 13 -5 provides a brief summary of cumulative ,impacts addressed elsewhere in the document, without repeating the entire text of the relevant portions of Chapter 5 to cumulative cover traffic impacts :in detail. In terms of Project related traffic impacts, the Project would contribute to cumulative .impacts where ahe level of service at a particular intersection evaluated would decline below acceptable levels either with or without the: Project: The intersection of Petaluma Boulevard North/Washington Street would operate at unacceptable levels of service in'the absence of the Project,, therefore, the Project would. contribute to this significant cumulative :impact (Impact 7..1 and 7.5, identified as significant and unavoidable in the DSEIR). The Old Redwood Highway segment is projected to continue operating at an unacceptable level of service even without, the Project, therefore, the Project would contributp to this significant cumulative impact (Impacts 7.2 and 7.7, identified as significant and ` unavoidable in the DSEIR). Other impacts addressed on DSEIR pages; 7 -23 through 7 -26 are evaluated under the heading "Future Plus Project. Conditions (Cumulative) ", and these would, also be considered significant cumulative impacts which the proposed Project would,contribute traffic. In the traffic analysis, all previous development ( "past" conditions) is included in °the traffic model under ".Existing Conditions ". As indicated on -DSEIR page 7 -1, the traffic analysis relied on input froth. City of Petaluma Staff in developing modeling assumptions related to, future development to 2015 (see FSEIR pages C &R -14 through C &R -1.6 for a discussion of future traffic. 'projections, applied traffic growth assumptions and the consideration of specific development proposals) The DSEIR presents the results of the modeling conducted, and no earlier modeling was "replaced ". Chapter 7 concludes that the- `future plus project conditions" result in potentially significant impacts to 3 intersections and I roadway: The City and the public, deprived of a proper and full cumulative traffic ; impact; have not, been informed if the LOS for these intersections iroadway would degrade further or if there are other intersections and roadways which also would be significantly impacted. In addition as discussed . infr "a without the requisite analysis cumulative impacts, the EIR cannot have adequately discussed:mitigations for such impacts. Project- related traffic impacts are addressed at length on DSEIR pages 7 -12 through 7 -27. The tables provided in Chapter 7provide the reader with an accurate assessment of anticipated traffic level's of service at each of'the 15 intersections evaluated for the DSEIR based on the ;results of the traffic modeling conducted: • 16 Cumulative Aesthetic Impact Analysis Flaws of The SEIR states that'7the project would "contribute to a cumulative reduction in the number of .open areas currently.seen by those traveling -along the 01- corridor. ".Over time, the on -going conversion" would be expected to permanently change the existing visual character of rural Petaluma. This statement does not disclose to the public or the Council whether the impact is significant, and thus fails to comply with CEQA. Correspondingly, by. avoiding classifying the impact as significant, the SEIR makes no attempt to discuss potential mitigations for this cumulative impact. In comparison; Chapter 11 of the SEIR discusses the individual aesthetic impacts of the project and concludes that there is a significant impact from 1) loss of scenic resources, 2) degradation of visual character and 3) increased light glare and then recommends mitigation measures. On DSEIR page 13-5, the last paragraph reads as follows: "Although the. General Plan anticipates development at the Project site, the proposed conversion of two vacant parcels to commercial use would contribute to a cumulative reduction in the number of "open" areas currently seen by those traveling along the U.S. 101 corridor in the Petaluma area. Over time, the on -going conversion of additional ;sites in this corridor which currently provide "open" visual features would be expected to permanently change the existing visual character of what has long been perceived (emphasis added) as a rural portion of Petaluma." It would be speculative to attempt to determine when (or if) future development along this corridor would come to be subjectively perceived as a significant adverse effect relative to the current visual appearance of property along a major freeway where much development has already °taken place, and for this reason it cannot be identified +as a significant cumulative environmental impact. Cumulative Hydrology.ImpactFlaws Chapter 5 of the SEIR discussed hydrologic impacts including flooding, water quality and erosion /sedimentation. The SEIR; fails to include a valid' analysis of cumulative hydrologic impacts. First, there is no analysis of the change in the environment resulting from the project when added to past, present and reasonably foreseeable projects. "The only other identified project considered in this cumulative analysis is the Redwood Technology Center. " Thus, the SEIR 's Cumulative impact analysis Only considered "two projects' There is no consideration of 1) any past projects, including Parcel A development or any other project in the Petaluma River floodplain 2) other existing: . or 3) any reasonably foreseeable future projects other than the Redwood Tech Park. The SEIR remarkably even ignores the Army Corps downstream flood control project, despite describing future projects for purposes of cumulative impacts as including this flood project. The SEIR did:,not consider the cumulative hydrologic impacts despite acknowledging highway commercial uses ,to 'the immediate' west, industrial and residential east across U.S. 101, and the Petaluma Livestock Auction Yard to the north, and also the development of Parcel A. There are also numerous reasonable foreseeable projects which were not considered as discussed fully below. 17 CEQA. does not permit a constrained cumulative impact analysis of regional impacts. "Because of the proximity of the .Project site to the Petaluma River, hydrologic issues are of primary importance to the, Project SEIR " validity. The SEIR's flooding model considered the Petaluma River downstream of Willow Brook through Petaluma River upstream of Lynch Creek. However, no analysis of cumulative impact -of past; present sand reasonable foreseeable projects located even, within this limited.stretch of the Petaluma River was included in this SEIR:.In.Kings County farm Bureau v:, City of Hanford, the Court set aside an_EIA which failed to consider the entire air basin in it cumulative impacts analysis. So here, this SEIR is flawed for taking such a constrained approach to cumulative hydrologic impacts which. is ofparticular concern given the inevitability of flooding< in ,the Petaluma River floodplain. Second, the SEIR. fails to consider the cumulative effect of flooding on the Petaluma River .when combined with its three tributaries which run through the proposed project. "In addition to the Petaluma River, several smaller tributary streams traverse the Project. site ... All three [J streams drain under Highway 101 through culverts, cross the Project site, and discharge to the Petaluma River. Third, the SEIR completely avoids a cumulative "water quality" analysis: The SEIR impermissibly assumes, without any supporting data or analysis that "with the proposed water quality mitigation measures for each - individual project in place, no significant cumulative water quality impacts would result from the two projects -. However, under CEQA. the required analysis of cumulative impacts cannot be avoided on the unsupported assumption that whatever impacts other projects' may have will be mitigated: Here the .SEIR :does, not even .mention Redwood Technology Park mitigations upon which ,it relies. An -adequate cumulative impact analysis would avoid such unsupported conclusions of insignificance and consider all past; present and foreseeable projects as discussed above: Although the 'DSEIR does not provide a listing of all structures, roadways �or 'otherman -made objects that currently exist within the Petaluma River ;floodplain, the modeling conducted for the evaluation of Project- related hydrology impacts took into account all existing development within the study area in developing the baseline values' (pre - Project). As indicated above, the DSEIR limited the "reasonably foreseeable projects" to those either underway at the time of NOP issuance ,(the USACOE flood control project) ,or for which the City. , had received a, formal development applicat'i'on at the time. of NOP issuance (Redwood Technology .Park). The flow from all tributaries to the Petaluma River is also taken into' account in the modeling. The DSEIR analysis of flooding effects, by its very nature provides discussion in terms .of the cumulative context, as that is how the modeling generates Pr 0 1 j changes in current flow rates and water surface elevations. Although all of the specific measures. to protect water quality that would be included in the required SWPPP had not been identified for either the Project or the Redwood Technology Center at the time of DSEIR publication (November 2002), the types. of measures commonly included in SWPPP are - described in Start at the Source and other water quality publications, and approval of an. SWPPP that incorporates such measures by;RWQGB signifies that this regulatory 0 • agency believes that the effective implementation of the SWPPP would reduce potential water quality impacts to a level 'of less than significant. Cumulative Biological Resources Impact Analysis Flaws Astonishingly, the SEIR: has no analysis of the cumulative impact of this project to biological resources. A thorough cumulative impacts analysis is particularly important here because of the substantial evidence of impacts from the project alone. Eight signif cant adverse impacts from the project are identified in respect to loss of seasonal wetlands, riparian habitat, pond turtles, red - legged frogs, nesting yellow warblers, nesting northern harriers, nesting white- tailed kites and degradation of waterquality. Yet here there is not even any mention of cumulative impacts or impacts from past, present and future projects. THE DSEIR discussion of special status species covers those potentially occur -ring in the Project vicinity based on habitat requirements; based on a records search of the CDFG NDDB in June 2000 and the Jones & Stokes Associates studies of the Project area in 1997 (see DSEIR pages 6- 6 through 6 -23). Plants and animals that have been formally designated "special status species" have been given protected status due largely to cumulative damage to their preferred habitats. For this reason, any Project - related impact to these species or their habitat could also be regarded as a cumulative impact, although not specifically identified as such in the SEIR. In addition, the SEIR has not analyzed the cumulative. impact to biological resources of developing Parcels B and C in the context of development of the tabandoned railroad right of way and of Parcel A. Significant vegetation was lost a. riparian -area was filled, a wetlands corridor and wetlands acreage were lost with the development of the abandoned railroad right- of -way. The SEIR evaluates the Petaluma Village Marketplace Project as . , shown in REVISED DSEIR Figure 1.3: Project Site Plan on page C &R -363 of the FSEIR. All development proposed at the time of DSEIR publication (November 2002), including any, development proposed within the abandoned railroad right -of -way; is evaluated in. the SEIR. The existing: conditions discussions presented in, the various chapters of the DSEIR are based on conditions as they existed when the Notice of Preparation of a ; Draft ;Subsequent EIR was circulated in July, 2002, and any habitat modifications or other changes in biological resources that may= have occurred within the abandoned railroad right -of -way prior to that time would not now be regarded as having any Project- related impacts associated with the development of Parcel B and Parcel C as currently proposed. Failure to Comply with CEQA Guidelines Section 15130 The SEIR discussion fails 'to include either 1) a list of past, present, and probable future projects producing related or cumulative impacts; including those projects outside the control of the City, or 2) a summary of projections contained in an adopted general plan or related planning 19 document„ or in a prior environmental document which has .beenr adopted or certified which describes or evaluated regional or areawide conditions contributing to the cumulative impact. Further, the SEIR fails to define the geographic scope of the area affected by the cumulative effects and fails to provide a reasonable explanation forlhis geographic limitation. As indicated in FSEIR RESPONSE 0 -4, the cumulative analysis presented in the Draft Subsequent EIR was based on the assumed, completion of two projects in the vicinity of the Project site that had been formally submitted to the City. of Petaluma for review when the Notice of ,Preparation for the .Draft Subsequent ,EIR was- distributed; (the. Redwood Technology Center project, and the on- going U.S.. Army Corps. of Engineers flood control project)'. Other development projects that have been formally submitted for City review since publication of the Draft Subsequent EIR in November 2002' are not reflected in the Draft Subsequent EIR cumulative analysis (except generally as contributors to local traffic in 20.1.5 under General' Plan buildout).. Future development projects on parcels in the vicinity of the Project site which.have not yet been formally submitted to the City of Petaluma for review are not reflected in the Draft Subsequent EIR cumulative analysis. Figure 12 .Aerial Photograph, of Project Site and Vicinity (DSEIR page 1 -3:) provides readers with. a.sense of the area surrounding the `Project site, although the DSEIR traffic analysis evaluated Project- related: traffic impacts at a, number of intersections beyond the area shown in this figure. In terms of identifying the geographic limits of cumulative impacts, much depends on the type of impacts considered, as some would relate, to the Petaluma River floodplain, some would relate to the entire San. Francisco, Bay air` basin, and some would relate to threats to special status species statewide. Firm geographic; ,boundaries beyond which Project- related cumulative environmental impacts were not considered were not identified in the SEIR. !' Failure to Adequately Analyze the Cumulative Impact of Past Projects The SEIR also acknowledges that- it has excluded the most important past project the development of Parcel A — the existing 1 93,000 square foot factory mall development. The SEIR expressly focuses on development of Parcels B and C, "and not on the environmental' effects associated with the development of Parcel .A.." In addition, the SEIR does not include the incremental impacts -of past,projeets while acknowledging such development projects exist in the immediate surroundings. (Highway commercial :uses to the immediate west; industrial and residential. uses east across .U.S. 1`01 .including but not limited to Redwood Business Park III; Petaluma Livestock Yard to the north); The development of Parcel A was completed prior to the circulation of the Notice of Preparation, and the DSEIR does not address environmental impacts that were previously associated with the development of Parcel A. Other previous; projects in the vicinity of the Project site.,completed prior to the issuance,of the Notice of Preparation can be seen in Figure 1.2: Aerial Photograph of Project Site and 'Vicinity (DSEIR page 1 -3'). These include the construction of a four -lane freeway (U.S. 101), and residential and commercial development projects. Environmental impacts that may have been associated with. these previous projects would properlybe addressed in the environmental review documents associated with each individual project. For thefpurposes of the SEIR, the previous completion of these.projects and any resulting environmental. effects i 20 such previous development may have had are taken into consideration as part of the existing '10 setting for the proposed Project. Failure. to Adequately Analyze the Cumulative Impact • of- Reasonably Foreseeable Future Projects The SEIR states that its consideration offuture projects for the purposes of cumulative impacts was limited to only two projects - -1) the Redwood Technology Park and 2) a downstream flood control project. There are numerous reasonably foreseeable projects in addition to these two, including, intra alia, 1) the 30 acre Neighborhood at Deer Creek application directly east of 101 (commercial and resi'dential),� 2) the Rohnert park :tribal casino Federated Indians of Graton Indian (impacts likely relative to traffic, Sonoma Co. Water Agency water, power generation, wastewater and emergency services), 3) Rainier -U.S. 101 Freeway Interchange and /or Crosstown Connector,; 4) a major residential subdivision at Petaluma Blvd and Jesse Lane, S) the possibility that the existing mall at Parcel A will be leveled and rebuilt, 6) projects in the Central Petaluma Specific Plan project area, 7) he Johnson Property apartments — zoned for over 300 units of housing, 80 projects related to annexation of northwest Petaluma, 9) -big box development at the site of the existing Pacific Cinema theater, 10) chain stores added to existing retail shopping at Plaza North; Plaza South and Washington Square, ,11) redevelopment of Kenilworth Junior High School site, 12) development.at the Adobe Lumber site, 13) new housing projects at Magnolia Avenue and Paula Lane, and 14) expansion of Santa Rosa Junior College. At a minimum, the SEIR .should have considered those reasonably foreseeable future projects which the SEIR characterized as "the level of development that the City ultimately anticipates in the vicinity of the Project site, referencing Figures 2.1 and 2.2, In fact, because of the regional nature Of-many of these impacts'(e.g traffic, water, downtown Petaluma blight), the cumulative impact analysis such consider" projects outside the "immediate" vicinity (e.g. flood issues within the floodplain). -The cumulative impact analysis for all impacts is inadequate as it failed to consider these projects. CEQA requires that the cumulative impact analysis include "reasonably foreseeable" future projects. The SEIR limits cumulative impacts analysis to those 'formally received" by the City and "considered complete. In doing so, it replaces the CEQA's standard of reasonably foreseeable future projects with "absolutely foreseeable "future projects.. The cumulative impacts flaws discussed above are. procedural flaws in the EIR, and are not based on a difference in opinion nor refuted simply by substantial evidence: If the City were to certify the SEIR Fin its current form, it would be exposing itself to judicial scrutiny on these very issues. "[]t is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it must reflect a conscientious -effort 'to provide public agencies and the general public with adequate and relevant detailed information about them. " A cumulative impact analysis which understates information concerning the severity and significance of cumulative impacts impedes meaningful public discussion and skews the decisionmaker's perspective concerning the environmental consequences of the. project, the necessity for mitigation measures, and the appropriateness of project approval. " 0 21 At' the time the DSEIR was published (November 2002), CEQA Guidelines defined "probable future projects in Section 15130 (b) (1) (B) [2] as follows: "Probable future projects may be limited to those projects requiring an -agency approval for an application which has been received at the time the notice of preparation Is released, unless. abandoned by the applicant; projects included in an adopted capital improvements program, general plan, regional transportation plan, or other similar plan; projects included in a'summary of projections of projects (or development areast _designated) in a general. plan or a. similar plan; projects anticipated a& later phase of a previously approved project (e a, subdivision); or those public agency projects for which money has been budgeted." In. the current CEQA Guidelines discussion of Section 1,5130, it states: "When analyzing the cumulative impacts of a project under 15130 (b) (1) (A), the Lead Agency is required to discuss not only approved projects under construction and approved related projects not .yet under construction, but also unapproved projects current under environmental review with related impacts or which result insignificant cumulative impacts." The .inclusion of possible future development proposals that may have received some media attention at the time of :NOP issuance, but.that had not been formally submitted to the City for review or environmental evaluation prior to the issuance of the Notice of Preparation would lead to speculation in developing the cumulative analysis of the proposed Project. None of the project listed in the comment above had been formally submitted to the City of Petaluma for environmental review prior to the issuance of the Notice of Preparation (July 2002). Inadequate Analysis. of Proposed Mitigations Land use Policy Mitigation Flaws The SEIR' fails: to address any mitigation related to land use plan policies and regulations. No potentially significant impacts. were identified in the Land Use and Planning Policy section of the DSEIR, so no associated mitigation measures were necessary. Hydrologic Mitigation Flaws There is no analysis, of mitigation for the ,hydrologic impacts of the detention basin to 'be constructed on the northeast corner of Parcel ' C. As indicated in FSEIR RESPONSE JJ -20, the. detention basin is only proposed for water quality mitigation; any runoff timing effects will be. incidental. According to the civil plans,. stormwater will be routed to the .basin through subsurface storm drains from all of the building, area; and part of the parking lot., There is no analysis of mitigation for the hydrologic impacts of the new Village Drive which will cross the Petaluma River: • The .construction of the, proposed Village Drive bridge was included in the hydrological modeling -conducted for the DSEIR. Mitigation Measure 5. L.1 (_DSEIR page 5 -20) would reduce Potential Impact 5.1: Increase 100 -year Water Surface 'Elevation in Petaluma River to a level of less than significant. 0 22 There is no anal sis. o the e f f ectiveness o the p roposed hydrologic. miti mit For example, Y .� ff f P P g P Mitigation 5.5.1 claims. to minimize the intrusion of buildings into the flood plain. Yet, there is no discussion of where. will be .located. Nor. .is there disclosure of the extent or location of the Petaluma flood plain pre and post project construction. Without disclosure of the location of the buildings and -the extent and location of the flood plain, the Council and the public are unable to determine the effectiveness of the proposed mitigation. The location of buildings proposed at the Project site is shown in Figure 1.3: Project Site Plan on DSEIR page 1 -13. Those portions of the Project site that are within the floodplain of the Petaluma River and tributaries 'are shown in Figure IV -B -2: FEMA FLOOD ZONE AND CROSS - SECTION LOCATION MAP in DRAFT ENVIRONMENTAL IMPACT REPORT — RIVER OAKS /PETALUMA OUTLET VILLAGE MASTER PLAN (March 1990) and FSEIR Figure 2: Floodway and Floodplain in the Vicinity of the Project Site (page C &R -409). It is improper to consider a significant impact to be mitigated to a point of less than significance based solely on engineering standards, particularly where as here water quality has been determined to be Section 3003 limited. The five mitigation measures identified in the DSEIR (Chapter 5) to mitigate potential water quality impacts associated with development of the Project site as proposed would, in combination, be expected '-to reduce these impacts to a level of less than significant. These include the development and implementation of a Storm Water Pollution Prevention Plan, to be approved by the Regional Water Quality Control Board as part of the NPDES permitting process. Biological Resources Mitigation Flaws -.5. - CEQA requires that where several measures are available to mitigate an impact, the basis for selecting a particular measure should be identified. The SEIR fails to provide this basis for proposed biological resource. mitigations. Where mitigation measures are identified in DSEIR Chapter 6 (Biological Resources), implementation of all measures identified to reduce the each identified impact would need to be implemented to reduce these. impacts to a level of less than significant. The SEIR defers mitigations without specifying performance standards or criteria. Performance standards associated with the issuance of the Clean Water Act Section 404 Permit, the Section 40.1 certification and the Streambed Alteration Agreement will not be defined until negotiations have been completed between the Project Applicant and the appropriate regulatory agencies (U.S. Army Corps of Engineers, Regional Water Quality Control Board, California Fish and Game). The SEIR has failed to consider or discuss the feasibility of proposed mitigations. Obtaining permits and agreements from other agencies may not be feasible. Any mitigation based on fiscal 23 contributions from the Chelsea are likely infeasible given that Chelsea has failed to timely pay $1.2 Million. Dollars into -an interest - bearing escrow as required by Resolution #91 -122 and Resolution #91 -136 for traffic mitigations. The SEIR; fails to analyze the feasibility of the proposed mitigation, in light of Chelsea's : history in this regard.. Likewise, the_ SEIR avoids discussion of feasibility of proposed.,mitigations based on results from the Parcel A..Mitigation Monitoring and Reporting Plan. In Chapter 6, the DSEIR. presents only those mitigations that have been considered feasible. It does not address issues related to funding the mitigation measures identified. Wetland/Riparian Mitigation for the Existing Outlet Mall is addressed on DSEIR _pages 6 -22 and 6 -23. The effectiveness of previous mitigation associated with the development of Parcel A did not constrain the DSEIR'.'s identification of biological mitigation measures for the proposed development of Parcel B and,Parcel C. The SEIR fails to discuss mitigations to rare plants despite the requirement of Resolution 91 -136 that a survey for such plants be undertaken. As indicated on. DSEIR page 6 -6, no special status plants were observed during studies conducted in the Project area in 1997, and it is unlikely that the site supports special status plant species given the disturbed nature of the site and low quality of existing habitats. The SEIR failed to analyze mitigations for all of the species present on the site, including the Sacramento sp"ittail despite the comments of the Dept. offish and Game. Potential Project- related impacts to special status species are addressed. on DSEIIZ pages 6 -26 through 6 -31. 5eef RESPONSE F -3 on FSEIR_ pages C &R -67 and C &R -68 .for a discussion of the, Sacramento splittail:and potential Project - related impacts to this species. The ,SEIR failed to .define the location of wetlands on the project and the location and extent of mitigations: Areas Subject to Section' 404 .Clean Water Act Jurisdiction are shown in DSEIR Figure 6.1 and Figure 6.2 (pages 6 -4 and 6 -5). These figures both show potential Section 404 Jurisdictional Wetlands on Parcel B and Parcel C.A Wetlands Mitigation Plan will need, to be developed by the Project Applicant in order. to obtain a, :Section 404 Permit from the U.S. Army Corps of Engineers,: and such a plan would define the extent of wetlands mitigation :to the satisfaction of the Corps. The SEIR fails to discuss feasible mitigation for the changes in the 8 -28 -acne abandoned railroad right of way: Significant vegetation was .lost, a riparian area was filled, a wetlands corridor and wetlands. acreage were lost with this development. Yet, the SEIR fails 16 discuss.any, mitigation for these impacts. The SEIR evaluates the Petaluma Village Marketplace Project as shown in REVISED DS'EIR Figure 13: Project Site, Plan on page: C &R -363 :of'.theFSEIR. All development proposed at the time of DSEIR publication (November 2002), including any development proposed within the 4 24 abandoned railroad right -of -'way, :is evaluated in the SEIR. The existing conditions discussions presented in the various chapters of the DSEIR are based on conditions as they existed when the Notice of Preparation of a Draft Subsequent EIR was circulated in July, 2002, and any habitat modifications or other changes in -biological -resources Ghat -may ,have occurred within the abandoned railroad right -of -way .prior to that time would not now be regarded as having any Project - related :impacts associated with the development of Parcel B and Parcel C as currently proposed. As no Project - related impacts have been identified for .development that hast already taken place in the vicinity of Parcel B and Parcel C, no mitigation measures have been identified. The SEIR violates Resolution 91436 which required environmental review of Parcels B and C to provide analysis of mitigation to minimize adverse impacts to Capri Creek, the Petaluma River and other natural physical features, including riparian habitat, seasonal wetlands and freshwater marsh. Potentially significant Project- related impacts related to local waterways and associated habitats are identified in DSEIR Chapter 5 and Chapter 6, with also incorporate mitigation measures that could reduce these impacts to a level' of less than significant. The SEIR further violates Resolution 91 -136 as there has been no preparation of a riparian enhancement plan for Parcels B and: C including identification of creek setback based on environmental values, hydrologic constraints, and protection and preservation of existing habitat. As indicated in Mitigation Measure 6.1.3 on DSEIR page 6 -25, the Project Applicant will be required to develop and implement a plan incorporating measures to meet all wetlands mitigation requirements as may be by the U.S. Army 'Corps' of Engineers, the Regional Water Quality Control Board and/or the California Department of Fish and Game. Such a plan could be expected to incorporate riparian enhancement features. Traffic and Circulation Mitigation; Flaws CEQA required that where several measures are available to mitigate an impact, the basis for selecting a particular measure should be identified. The SEIR fails to provide this basis for proposed traffic and circulation mitigations. In DSEIR Chapter 7 (Traffic and :Circulation), a set of three possible mitigation measures are identified for Potential Impact- 7.1 and Potential Impact 7.5, all intended to reduce traffic congestion at the 'inter"section: of Petaluma Boulevard North/Washington Street. As explained in the DSEIR, there are;real problems that could prevent the effective implementation of any of these mitigation measures. For that reason, these two potential .impacts have been identified as significant and unavoidable. The SEIR defers mitigations . without specifying performance standards or criteria. As indicated. on DSEIR page 7 -12, where intersections would perform at LOS' C (or better) for streets and LOS D (or better) for intersections, there would be no significant Project- related 25 impact. Where mitigation measures identified can reduce- LOS values at evaluated intersections to these LOS standards, the Project- related impacts would be reduced to a level of less than significant through the implementation of those mitigation measures. The:SEIR has failed to consider or discuss the feasibility, ofproposed mitigations. Any mitigation based on fiscal, contributions from the Chelsea are likely infeasible given that Chelsea has failed to timely, pay $1.2 Million Dollars into an interest- bearing escrow as required by Resolution #91 -122 and Resolution #91 -136 for traffic mitigations. The SEIR fails.to analyze the feasibility of the proposed mitigation in light of Chelsea's history in this regard. In response, to comments the SEIR acknowledged that, in the absence of funding, effective implementation of proposed traffic mitigations is in doubt: Likewise, the,' he SEIR avoids discussion of feasibility of,proposed mitigations based on results from the Parcel A Mitigation Monitoring and Reporting Plan. In Chapter 7, considerable thought. was given to the feasibility of mitigation measures, as witnessed by the identification of several Project-related impacts as significant and unavoidable, despite the identification of possible mitigaiion measures that appeared to be infeasible. The effectiveness of previous mitigation. associated with the development of Parcel: A did not constrain `the DSEIR's identification of traffic mitigation measures for the proposed development, of Parcel B and Parcel C. The SEIR failed to consider feasible traffic mitigations, including those proposed by Caltrans. The SEIR incorporated all traffic mitigation measures identified as feasible by the Lead Agency, the City of Petaluma. The SEIR fails to comply with Resolution 91 -136, .Condition 51 (E)'s requirement,that specific and - area- wide traffic mitigations. associated, with projects on B & C shall: be . identif ed concurrent with the environmental analysis of ihespecificproject. Traffic impacts associated. with. the proposed Project (the development of Parcel B. and_ Parcel C) are evaluated in DS'EIR pages 7 -14 through 7 -27.. Mitigation of Cumulative Impacts CEQA has responded to the problem of ,incremental environmental degradation by requiring analysis of cumulative impacts. By avoiding proper analysis of the cumulative impacts, the SEIR makes no attempt to discuss potential mitigations for any cumulative. impact. Mitigation measures that would reduce Project- related impacts to a level of Tess than significant would also reduce. any Proj'ec't- related contribution to cumulative impacts to a level of less than significant. VI. The EIR Failed. to Adequately respond to Comments The governing standard for response- to comments in a FEIR requires that: 0 26 " `in preparing the ,final EIR the [agency] must describe the disposition of each of the significant environmental issues raised and must particularly set forth in detail the reasons why the particular comments and objections were rejected and why the [agency] considered the development of the project to -. be of.- overriding importance A conclusory statement "unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind" not only fails to crystallize .issues (citation) but "affords no basis for a comparison of the problems involved in +the alternatives. (Citation.) Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response. " (Emphasis added.) (Citation omitted.),... We conclude that the [agency's] failure to respond with specificity in the final EIR to comments and objections to the draft EIR renders the final EIR fatally defective. " (People v. County of Kern (1979) 39 Cal.App.3d 830, 841 -841; Stanislaus Natural heritage Project v. County of Stanislaus (1996) 48 Cal.App.4` 182, 191) The SEIR's Response to Comments (RTC) fails to 1) describe the disposition of each of the significant environmental issues raised, 2) set forth * an detail the reasons why the particular comments and objections were rejected, 3) set forth why the City considered the development of the project to be of overriding importance, 4) avoid conclusory statements "unsupported by data or explanatory information, and S) provide good faith, reasoned analysis. Where modifications to the DSEIR have been made in response to a specific comment, this is • noted in the FSEIR's RESPONSE to that particular comment and in the "Revisions to the Draft Subsequent EIR" section of the FSEIR. DFG Comments DFG is the state agency with responsibility under the common law public trust doctrine, the Fish d& Game Code and the California Endangered Species Act for ensuring the long -term survival of California wildlife and habitat. In that role DFG's comments demand good faith and reasoned analysis and detailed reasons why the particular comments and objections were rejected. The SEIR in its current form fails to meet these CEQA standards. For example, DFG comments that the SEIR must "analyze impacts to steelhead migration and rearing habitat" because of the project's potential to impact the Petaluma River, its riparian woodlands and adjacent wetlands. DFG comments that Table ,6 -3 and `Table 6 -4 are inaccurate regarding steelhead, Sacramento spittail, California freshwater shrimp. DFG comments that the Draft SEIR conclusions regarding impacts to f sh at: p. 6 =31 are "not justified and that steelhead, Sacramento spittail, California freshwater shrimp could be "significantly impacted" by a v ew bridge and by utility crossings.. The RTC responds that mitigation for a portion of the project — Village Drive Bridge - would reduce effects to steelhead (Response F -1) Under CEQA, mitigation does not substitute for the analysis recommended by DFG as effective and feasible mitigation can. only be proposed once the impacts have been analyzed. The RTC avoids any discussion of impacts from utility crossings. Inaccuracies pointed by DFG in Table 6 -3, Table 6 -4, and regarding inaccuracies in the Draft SEIR discussion of steelhead presence and spawning habitat at the project site are 27 completely ignored. No changes are made in the Final SEIR and no responsive analysis is provided regarding "impacts " to steelhead. DFG comments. that insufficient information is presented in the DRAFT SEIR to justify a conclusion that no mitigation is .needed. DFG then suggests S separate" feasible °mitigations for the impacts DFG foresees to special status f sh. The RTC.provides no response to this comment. See Response F -6 The RTC provides no response to,,DFG's comment that. focused surveys may be needed to confirm that there will be no impacts to shrimp. DFG comments that there is no discussion of the impacts of the proposed river walk -trail ,and suggests a mitigation that the river walk trail and any landscaping be located outsida.the 100 foot landscape setback. The RTC does not provide the requested impact. analysis or address DFG's comments; instead the RTC reiterates the proposed project. No revisions were made to Chapter 6 of the SEIR in response to DFG's substantive comments. Responses to the comments on the. DSEIR submitted by the California Department of Fish .and Game ( FSEIR :LETTER F) are presented on FSEIR pages C &R 67 through C &R -70. As indicated above, no changes were made to the text of DSEIR Chapter '6 in response to these comments. . CALTRANS Comments Caltrans inquires as to the timetable for implementation of each "mitigation, measure proposed in Chapter 7 in, relation to the project development schedule. The RTC references classifications at p. CR9 to CR14. Review of that section provides no information on the timetable for implementation in relation to the project .development schedule. Thus, the SEIR has failed to provide the required good faith, reasoned response or set forth in detail the reasons why the comments and objections were rejected The discussion of "Traffic &, Circulation Analysis Clarification" provided on , FSEIR: pages C &R -7 through C &RA4 addressed traffic conditions and mitigation measures in terms of the short-term. (next. few years) and long -term (to 2015).A. "timetable"' for implementation of each of the traffic mitigation measures identified in the DSEIR has-not been developed pending City decisions on the allocation of resources to accomplish these mitigation measures, although . improvements at the Future Village ,Drive intersection. with Petaluma Boulevard North (Mitigation Measure 7.3.1 and Mitigation Measure 7.8.1) would' need to be completed prior to opening Village Drive to traffic. BAAQMD Comments BAAQMD recommends "substantially, more" to mitigate the air quality impacts and to reduce vehicle trips — beyond the SEIR ,'s- `generic list disconnected from the specific project or location, as the vehicle emissions for this project are more than double the. District's thresholds: Specifically, BAAQMD .recommends consideration of reduced parking space and employee Mcentives to, ride transit. The RTC rejects the idea of preparing more- air quality 28 mitigations, without ,providing detailed reasons why the BAAQMD comments and objections were rejected. While the "City Council will ultimately decide, " the role of the EIR is to provide effective, feasible mitigations for the Council to consider — .particularly where, as here, the SEIR's mitigation measures fail to. reduce air quality impacts to less than,significant. Thus the RTC further fails as it does not set forth why the development: of the project is considered of overriding importance. See RESPONSE 00 -4 and RESPONSE 00 -5 on FSEIR page C &R -285. Given the magnitude of the Project's anticipated impact on regional' air quality based on the modeling conducted for the DSEIR, implementation of the additional mitigation measures suggested by BAAQMD would not be expected to reduce Project - related impacts on regional air quality to a level of less than significant. David Keller Comments The RTC does not respond to Keller's comments regarding impacts to employment and housing. The RTC does not respond: to Keller's comments regarding inconsistency with each General Plan "Central Goal", with General Plan Chapter 8, or with General Plan Chapter 3. Instead, the RTC reiterates the Draft SEIR position regarding General Plan "land use designation, " thereby failing to describe the disposition of the.significant issues ,raised by Keller regarding GP Central Goals, Chapters 8 and 3; and failing to provide the reasons why the comments were rejected. The RTC responds to Keller's comments regarding project inconsistency with the River Access and Enhancement Specif c Plan by stating that the project is "generally consistent. " Without explaining the degree and scope of the consistency /inconsistency, the RTC has employed impermissible conclusory statements unsupported by data or explanatory information. While true that the City Council will determine General Plan consistency, the EIR's role is to promote informed decision making by addressing consistency.. The..EIR has. a further role of responding to comments by the public. Here, because the SEIR does not comply with CEQA's procedural mandates, certification would be an abuse of discretion. See LETTER JJ and associated RESPONSES on FSEIR pages C &R -197 through C &R -270. The RTC does not respond to Keller's comments regarding the project direct and indirect, immediate ,and long term adverse impacts to the center of Petaluma from the demise of local downtown businesses as a result of the proposed project, including adverse impacts to Central Petaluma traffic and circulation; urban blight, abandonment and decay of the central city and other existing commercial areas, employment, low income housing 'needs for low- income mall employees, emergency and policy services. These are not merely "economic" problems, but clearly have environmental, physical impacts which may be significant. The RTC again employs conclusory statements unsupported 'by data or explanatory information and thus avoids the good faith, reasoned analysis required by CEQA See LETTER;JJ and associated RESPONSES on FSEIR pages C &R -197 through C &R -270. The RTC does not respond to Keller's comments regarding a duty to use the most recent and comprehensive information available, thus avoiding a description of the disposition of this 29 significant issue -. The RTC won't touch .Keller's comment Ghat there is piecemealing of a larger roadway project which would connect to a Rainier road alignment project. The RTC does not respond to Keller's comments that, the, U.S. Army Corps of Engineers told Petaluma all additional building upstream .will, ,compromise the flood control project. The, RTC does-not respond to Keller's comments that the SEIR does .not assess the cumulative loss of wetlands for the upper Petaluma. River basin where this proposed project is located, The RTC does not respond to Keller's comments that there needs to be surveys for shrimp as the surveys conducted were too late.in the season. See.LETTER JJ and associated RESPONSES on FSEIR.pages C &R -197 through C &R -270. The RTC does not respond to Keller's comments regarding the alternative, of purchasing the Corona Reach, of the:. Petaluma River as a park, the .need for analysis of additional species, inconsistency with the Oak Preservation Zone; or cumulative loss to the River corridor. Response JJ - -21 solely- references Response.F-8 which deals with none of these issues, but only with concerns by the. RWQCB regarding',the river walk; trail. See LETTER ,JJ and associated. RESPONSES ,on' FSEIR pages C &R =1.97 `through C &R -270. See also DSEIR pages 2 -24 and 2 -25 for discussion of Project consistency with "Oak. Grove/Riparian Woodland" and Preservation Zones identified in the Petaluma River Access and Enhancement Plan. • • 30