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Home My WebLink AboutAgenda Bill 9.A-Attch08 06/21/2004Jun -11 -2004 _1.1:14am From- COX,CASTLUN ICHOLSON � P +415 3924250 T -146 P.002 /005 F -601 1 --d C b .x CA S'T L,''E 1 1'1 C H O L S O N P' - Cox Casdc�& Nicholson LLP 555 Monrgomeiy 5trcer, Suirc 1500 San Francisco, Udornia 94111 P 4.15.392:4200 F 415.392.4250 Margo N. Dradish 415. 262.51`00 mbradish@coxcasdcxom 1 do No. 45367 Jun,: 11, 2004 VIA FACSIlV I LE` A1VD',,MAIL \ CitY Council Members Cin' of Petaluma P.O.' Box 61 Peuduma, CA 94953 Atn1: Ms. Irene Borba Re: Paula.Lane < Subdivision Pr6ject Hotforable City Council Members: Pursuant to request „of Council Member'F ealy at the May 17, 2004, Council hearing on the Mission Valley Properties' (the "Applicant ) proposed Paula Lane subdivision project (the "Project "), this letter responds the testitnony Ms. Paige Swartley, attorney for PLAN. As apreliminary matter, there appears to, agreement among the attorneys on sevoral applicable legal principles. First,. there is agreement that, the "substantial evidence" standard governs the City's decision to prepare a Negative Declaration:rather than an Ei» iroiunental linpact Repon (” lrlR "). CEQA.Guidelines §15064(f). As indicated in my prior correspondence to you,,'C -BQAprovides that the City, "shall" prepart °a Negative Declaration or Mitigated Negative'.Deelaration'ratlher than an EIR if there is no "sub,.stantial evidence" that the Project, as revised and nit gated,'.may have a significant effect on the onrnent. CEQA Guidelines § 150640(.2), (3). Second, there is:agreement that "substantial evidence" must include facts, reasonable ass'' Ptions predicated on facts and expert opinion supported by facts, and does nor include argume4:speculatiori; unsubstantiated opinion or narrative, evidence that is cle arly inaccurate or erroneous evidence that it not credible'. CEQA " Guuidelines ; I M6q(1)(5). IV Finally, ^ AS- Swartley's citation to Sierra .Club v. County of Sonoma (1992) 6 61.AppAth 13 6 18 for the proposition that CEQA establishes " a low threshold requirement for initial p 1 i evidence to an LIF, requiring an BM if there is substannal. evidence of an impact even if there ,_ �� ;the contrary, lsmaccurate. u , Wherethc attorneys disagree is in the application ofthese legal principles to the Project; Innher testimony,.Ms. Swartley alleged that there is substantial. evidence that the Project will have °a si` gni ficarq °impact on the envirotunent: As detailed in my;prior con to you, there ismot: Without repeating that correspondence here, the balance of this letter addresses Ms Swartley's specific testimony. A— www coxcasdixom Los Angeles I Orange County I San Francisco ATTACHMENT 8 Jun -11 -2004 11:14am From -COL CASTLE&NICHOLSON.LLP +415 3824250 7-146 P.003/005 F -601 Honorable City Council Jung 11,.2004 Page 2' Neighbors' Opinions: Ms. Swartley's citation to the'recent decision in Ocean View Estates Homeowners Association, Inc, v. Montecito Water District (2004) 1116 Cal.AppAth, 396, °for the pToposition thatt'he Neighbors' opinions constitute substantial evidence,is inapposite, In Ocean View, the eottrt:found that the overall aesthetic impact of an,alumin im cover [on a water reservoir] is by its very.nature,subjective ... [and] not the special purview of experts. In such cases,'the ocean View court, suggested that personal observations of nontech cal issues can conititute:substantial evidence. Id. ai Similarly, in Oro Fh o Gold- Mining Corp. v. Coimty ofl'd Dorado (1990) 225 Ca1.App.3'd 872, the coltr bund that a requirement of compliance with noise standards carried less weight where neighbors testified regarding the - county's "failure to _... enforce its noise ordinance. $ecause the neiglibo"rs' testimoriyconcerned the nontechr&ah:issue of enforcement and not the technical Noise analysis, the court concluded that these3personal observations could - constitute substantial evidence, See id: In contrast to :Ocean Vieth and Oro Fim>, the areas of,iti pact identified by Ms. Swanley as the subject of neighbors' opinions (e.g,, wtl (ilife corridors, biology, lristor►c.resources, traffic, hydrology and water;quality, drainage,and flooding) involve techntcal issues where experts do have special purview. While the City"" ay not refuse; to, consider uncontradicted testimony based' upon objecrive data" (Citizens: Assoeiatort for Sensible Development of'Bishop Area v, Counry oflnyo (1985) 172 Cal.App.3d 1;51, 1 73), the Cite is entitled to determine that the - neighbors' subjective.opinions on technical matters do not constitute substantial evidence in the.face of objective, expert evidence to the contrary. Planning Commission Decision: Ms. Swartely's emphasis (without supporting 'citations) on.her , cliaracteriation of the Planning Commissioners as experts; for CEQA purposes is n isplaced for several reasons. First, the Planning Commission took.no' action with respect4to. the Negative Declaration choosing instead'to recommend disapproval of the Project ; as a,poligy matter. (CEQA does not. apply' to, projects which are disapproved. CEQA'Guidelines §15270.) Although,the Planning.Commissioners discussed various environmental: issues, the Commission did not; reach a conclusion (expert or otherwise) regarding the adequacy of:the Negative Declaration. Second, even,ifit had done :so, ' "the commission's,cone usions'fiom the evidence presented'to it do=t themselves constitutes [sic] evidence of such effects_" Perley v. Board of Supervisors (1982) 1 Cal.App3d424, 435. As noted iri Perley,,any contrary would be unsupportable because it .would r6rdove from.the City Council. (and cede to the Planning Commission), ihe,authority to issue a Negative Declaration. Id. In. contrast to << Planning Cot nn f ssions,.CEQA case law:does establish that "planning department:officers do qualify as_ experts since this.aype of analysis is their business." Greenebaum v. 'City of Los. Angeles (1984) 153 Cal.App.3d 391 413. As you know, the Community Development Department recOmmended approval of.the•Negative Declaration forthe Project. See November 12, 2003 staff'report to Planning Commission. Specific Project Impacts In her testirnony,'Ms. Swartley alleged the existence of expert disagreement with. resl►ect to Project impacts on the American Badger and historic resources -and claimed that this disagreement requires preparation of-an 1 IR. In making this argument, Ms. Swartleyclaimed • rJuh -11 62004 :11 :15am,' FrOm- COX..CASTLE&NICHOLSON 10 ; Honorable City Council June: 11, 2004 Page 3. +415 3924250 T -146 P- 004/005. F -601 that CEQA;Guideline Section 15.064(g) requires an'EIR whenever, there is'' °expert disagreement over the significanel"f an ,effect: in fact, as indicated in myprior correspondence to yoLi,, disagreement amongexperts requires an EIR orilyif it is unclean whether there is substantial evidence that theRroject;mayhave.a significant effect and even then only when the expert opinions are.rendered by qualified experts and are supported by facts_ See CEQA Guidelines §15064(g). With respect to the Project, those prerequisites are missing: Again without repeating my prior correspondence here, followingis a response`to the specific issues raised in Ms. Swttrtley's testimony. American Badger • In her `Swartley argued that (i) the opinions of Ms. Fitts and Dr. S,uallwood constitute expert evidence of the presence of American Badger habitat on the Project size, and (ii) that this evidencerequiies a:mandatory finding of significance under CEQA Guidelines Section l 5065(a). Neither of these arguments can be substantiated. First, the opiniq ss of Ms. Fitts. and Dr. Sniallwdd regarding the presence of American Badger habtta the °,Project, site do not constitute qualified :expert opinions st,.pported by facts. See.CEQA "Guidel nes 15064(8). lhjhe case;of Ms. Fitts, she is not an expert in Americaita$adgers or even rare I mammalian camivores. In the case of Dr. Smallwood, his letter opinion as,notliing more than speculation based upon review of Photographs of alleged Atneriean�-Badger, dens and,pnnts. In contrast, the record contains expert evidence from Dr. Kticera, an expert in rare mammalian carnivores who has visited the Jg g} , ty to p . Y leer species. Based on the Project site that:aliese s�` evidence of o • tntons s could be c ox', co. ote or of fc.re oin the Ci is entitled to!conclude -that the afMs.- ,Fitts (a non- expert) and Dr. Smallwood (without supponingrfacts).do not constitute iions ..rendered by qualified expei�s supported b facts. As such ,.there exists' pp y no disagreement among experts that would aiA su tugger an EIR tinder CEQA Guideline Section 15064(g). Second, the)evidetce does require a mandatory finding of significance under CEQA Guidelines Section 15065(a). That Guidedne�drequires the;prep.aration of an EIR where "ihe project °has the to• substantiallydegrade the.quality ofthe environment, s«bstantially reduce the habitat of a fish or wildlife species, causc'%a fish or wildlife species to di .below :self-susterttion levels, threaten to eliminate a plant or animal community, [or:]. reduce the number or restnctlth' , ang l e''o a f an' endangered,;rare'or threatened species ...." The rE•cord does not contain substantia Bence to support these findings. Ms. Fitts alleges that the Project wil!l.caUSei,the loss,of 9 acr e Aillericali Badger habitat and' asserts without evidentiary support that the Project therefore: will interfere with.the ability. of the- .American Badger to mode wit*4ms'hoine range: Ms. Fitts, however,, does not.address the relative insignificance,of,;this habitat loss (even assumingthat this: is habitat) in the context of a species that as.Dr. `Kucera notes; ranges over from,:300`to more than 3,600 acres. Further, Dr. Smallwood's letter does "not address the impact of the Project on ;he American Badger at all, but'instead'siiriply alleges :that :the availability of suiiableliabitat requires preparation of an • Jun -11 -2004 11:15am From -COL CASTLEH ICHOBON LLP Honorable City Council June 11, 2004 Page 4 +415 3824250 T - 146 P.005/005 F - 601 EA all of finds support in CFQA. In any case, the Applicant,voluntarily a osition tha incor porated the recommendations of the Califotnia.Department of Fish & -Game with. respect to measures t o avoid - impacts,to badgers.. Based on the foregoing, the City is entitled to conclude, that the record does not °require a mandatory - finding of s'' ilicance under CEQA Gtideline Section, 15065(a):, - Historic Resources Ms. Swartley's argument that an IEIR is required under CEQA ,Guidelines Section 15064;5(b)(2),because PainterYreservation.,Planning opined that the Project site might qualify as letters suggest additional analysis, but'do not contain any substantial evidence at. the Paiiater's a rural historic landscape lacks merit. As indicated in.m nor correspon evidence t hat. the 'Project ' Site iuficant i npact�ona t historic esou ces Moreoverp t as:d tailedin e Carey& Co. " S s have a espouse to the Painter letter; even " [ ]f the rural. historic landscape' approach were to applie&in this case, it is Carey & Co,'s opinion tharthe property would.: be found to lack sufficient integrity for eligibi lity to the California, Register." pai speculation.regardin,g the p ossible outcome of additional study does not constitute substantial evidence of a significant impact on hi`stonc resources; particularly in light of Caro.y & Co.'s experropinion'thatadditional study wouldndryield;a differenreonclusion than contained in,the N'e.eativeDeclaration. See S4n'Joagzri.n Ra ibrMldlife Rescue Cfr. V. County of Stanislaus (1996,142 Cal.App 4ih -608, 625 �(hoid ng: that request: for additional study; absent evidence countering a conclusion of iio' significant, impact, does not require an EIR): Thank you the opportunity to respond to Ms. .Swartley's testimony. :Please do not, hesitate'to have City staff contact me, should you have any questionsvith regard to this matter., Very truly yours, Margo NUBradish 4536 I cc; Ms. Martha Buxton Mrs: Irene Borba Richard Rudnansky, Esq. • is